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Lord Cope of Berkeley: Before I withdraw my amendment, the Minister said that the code of practice would be available shortly. Does that mean that it will be available before we reach the Report stage? I think that it is important to establish whether we shall be able to see the code before the next stage of the Bill.

Lord Bach: So far as I understand, the answer to the noble Lord's question is yes.

Lord Cope of Berkeley: The noble Lord's slightly lengthy response to these amendments has been helpful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Northesk moved Amendment No. 58A:

The noble Earl said: I beg to move Amendment No. 58A and to speak at the same time to Amendment No. 60A.

The Minister will recall that I raised this matter in the debate on Second Reading, when he was kind enough to allude to my somewhat dubious knowledge of the Data Protection Act. The Government are adamant in their insistence that it is not their intention that the interception regime should interfere with a citizen's established human rights. Equally, it is maintained that there is nothing on the face of the Bill that would comprise such

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interference. But the Bill could be interpreted to mean that, notwithstanding the various exemptions, the uses to which communications data, together with the scope of their definition, are in breach of the data protection principles. In particular, it is my view--albeit that I am not a lawyer--that it could fall foul of the principle that:

    "Personal data shall be held only for one or more specified and lawful purposes",

and shall not be further processed,

    "in any manner incompatible with that purpose or those purposes".


    "Personal data shall be adequate, relevant and not excessive in relation to that purpose or purposes",

for which they are processed. In so far as these may be in breach of the data protection principles, this is a ludicrous position that will undermine public trust in the regime.

In my view, it is not unreasonable that the Bill should state that the interception regime should be expressly and fully compliant with the data protection principles as set out in Schedule 1 to that Act. Perhaps the Minister will argue that that is already set down in statute and therefore the imposition of such a requirement is unnecessary. This Bill is already bound by the requirement to comply with that Act. However, I do not necessarily share that view. Its terms are such as to bring such compliance into question. Aside from that, since the implementation of the Data Protection Act, a number of abuses of the data protection regime have been identified and prosecuted.

That being so, and given the complexity of the whole area, it is my belief that there should be no ambivalence here. If we are to strike the right balance between the needs of the interception regime and the rights of ordinary law-abiding citizens to privacy and freedom of expression, it is essential that they can trust absolutely that those rights are adequately protected; that is to say, that they can rely on a presumption that the data protection principles will apply. I beg to move.

Lord Bach: Perhaps I may deal with the amendment fairly briefly.

Lord Phillips of Sudbury: I apologise to the noble Lord. I do not think that either Amendments Nos. 59A or 62A were referred to during the previous response.

Lord Bach: We have not yet reached them on the groupings list.

Lord Phillips of Sudbury: Is the noble Lord dealing with new amendments?

Lord Bach: I am dealing with the amendments as they appear in their groups and then in numerical order. Amendment No. 58A has been moved by the noble Earl, Lord Northesk, and it is to that amendment that I shall now respond. The noble Lord will be able to move Amendments Nos. 59A and 62 in a short while.

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Perhaps I may return to Amendments Nos. 58A and 60A. The amendments seek to restrict the extent to which the intercepted material and communications data may be shared between government agencies. We believe that the law enforcement, security and intelligence agencies are already subject to restrictions on the degree to which they may share data either under the provisions of the Data Protection Act or under the statutory restrictions placed by the Security Service Act 1989 and the Intelligence Services Act 1994.

From October of this year--Members of the Committee will appreciate that this point is not unimportant--they will also have additional restrictions imposed by the Human Rights Act. They will then need also to consider questions of necessity and proportionality before interfering with a person's privacy. I hope that that explanation meets with the approval of the noble Earl.

The Earl of Northesk: I thank the Minister for that reply. As I said when I spoke to the amendment, my main purpose in moving it was to reduce any ambivalence. I shall read carefully what the Minister has said, but I am sure that he has satisfied me in that purpose. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 59 not moved.]

Lord Phillips of Sudbury: I should like to make one or two remarks on the helpful explanation given by the Minister as to why the Government will not accept this amendment.

Lord Bach: I hope the noble Lord will forgive me for intervening. The rules of the Committee state that the noble Lord must first move Amendment No. 59A and then withdraw it, unless he seeks to take it to a vote. I say this only by way of helpful advice. If I am wrong about procedure here, I shall be happy to be corrected.

Lord Phillips of Sudbury moved Amendment No. 59A.

    Page 16, line 1, at end insert--

("( ) appropriate technical security arrangements which ensure that the risk of unauthorised disclosure,").

The noble Lord said: In this 92-page Bill, I think it would be fair to say that the four key functions of the measure are, first, how to acquire confidential information; secondly, how to use it; thirdly, how to store and safeguard it; and, fourthly, how to destroy it. Given that, I feel that it is not satisfactory for the Government to declare that the issue of storage and the safeguarding of confidential information under the Bill can be dealt with by way of an implication in Clause 14(2)(b).

Aside from that, Clause 14(2)(b) does not cover circumstances where material is stolen. It refers only to,

    "the extent to which any material or data is disclosed or otherwise made available".

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I believe that the Minister will agree that one is not dealing with a disclosure or the act of making available confidential data by the Secretary of State or the Government when it is stolen, purloined or otherwise misused.

As I have said, it seems wholly disproportionate that such a crucial element of the Bill should be left to an implication that I do not in fact believe can be carried by this subsection. Perhaps the Minister could look again at this exchange.

I accept that Amendment No. 59A may be placed a little clumsily in the groupings order. It could be dealt with more naturally as an adjunct to subsection (3) of Clause 14. I beg to move.

Lord Bach: I shall of course read the report of this exchange and look at the matter again. In the meantime, I invite the noble Lord to withdraw his amendment.

Lord Phillips of Sudbury: I shall be happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 60 to 61B not moved.]

Lord Bach moved Amendment No. 61C:

    Page 16, line 15, leave out ("Chapter") and insert ("Part").

The noble Lord said: I hope that we can deal briefly with this amendment. The noble Lord, Lord Cope, will, I hope, be pleased to hear that we have considerable sympathy with the intention of his Amendment No. 62, which includes retaining communications data as well as intercept material as one of the authorised purposes if it is necessary for the carrying out of the functions of the interception commissioner or tribunal. For the sake of consistency with the rest of the Bill, we should prefer to use the phrase, "this Part", as will be the case with our amendment, rather than "Chapter" and "Chapter II" which appear in the noble Lord's amendment; hence the Government have tabled this amendment, with thanks to the noble Lord, Lord Cope. I beg to move.

Lord Cope of Berkeley: As has become clear, the two amendments have an identical purpose and the Government's is better drafted. I support it.

On Question, amendment agreed to.

[Amendments Nos. 62 and 62A not moved.]

7.30 p.m.

Lord Phillips of Sudbury moved Amendment No. 63:

    Page 17, line 9, at end insert--

("( ) The Secretary of State shall as soon as possible after the interception notify the person or persons whose communications were intercepted of the dates and duration of that interception unless the Secretary of State is satisfied that it is in the public interest not to do so; and the Secretary of State shall have a duty to review regularly any decision of his not to so notify, and to notify as soon as it is no longer in the public interest not to do so.").

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The noble Lord said: The purpose of this amendment is, I hope, relatively plain from the wording. It seeks to ensure that those who are subject to interception are notified of the fact, subject to the public interest right of the Secretary of State to refuse to do so, which is expressed in generous terms; namely, that the Secretary of State is satisfied that it is in the public interest not to do so.

We accept that the notion that notification of intercepts should be given to the subject of such an intercept is rather alarming. It may well be thought--this, indeed, may be the case--that a considerable amount of extra work will be involved on the part of the agencies and individuals concerned. None the less, we submit that the amendment is well worth consideration by the Government, despite the bureaucratic consequences, despite the fact that the police are anxious about this idea, and despite the fact that since the Birkett report of 1957, which followed the Marinnan case, the present regime has apparently worked reasonably well without this right of notification.

Our feeling is that we are in a new age. This is not the age of the good Lord Birkett; it is a very different one. It is an age when freedom of information and transparency are two of the most powerful concepts. They meet a general public need to feel that the increasingly powerful organs of the state are working as they should work and in the interest of the citizen.

It is common ground that the Bill gives tremendous powers and discretions to the state and the agencies covered by it. As we have said many times, great potential evils can be met only by great potential powers; but so too, those powers must be counter-balanced by commensurate protections. In our view, there is no more forceful protection to ensure the smooth, effective and lawful workings of this panoply of powers than the requirement in this amendment; namely, that of notification.

Unless there is notification, it is extremely hard to see how the citizen will be able to assess whether what is done covertly in his or her name is properly done. It will be difficult, too, for the intercept commissioner to do his or her job effectively. I beg to move.

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