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Lord Bach moved Amendment No. 69:

(f) any proceedings before the Proscribed Organisations Appeal Commission or any proceedings arising out of proceedings before that Commission.
( ) Subsection (1) shall not, by virtue of paragraph (e) or (f), authorise the disclosure of anything--
(a) in the case of any proceedings falling within paragraph (e), to--
(i) the appellant to the Special Immigration Appeals Commission; or
(ii) any person who for the purposes of any proceedings so falling (but otherwise than by virtue of an appointment under section 6 of the Special Immigration Appeals Commission Act 1997) represents that appellant;
(b) in the case of proceedings falling within paragraph (f), to--
(i) the applicant to the Proscribed Organisations Appeal Commission;
(ii) the organisation concerned (if different);
(iii) any person designated under paragraph 6 of Schedule 3 to the Terrorism Act 2000 to conduct proceedings so falling on behalf of that organisation; or
(iv) any person who for the purposes of any proceedings so falling (but otherwise than by virtue of an appointment under paragraph 7 of that Schedule) represents that applicant or that organisation.")

On Question, amendment agreed to.

[Amendment No. 70 not moved.]

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Clause 17, as amended, agreed to.

Clause 18 [Offence for unauthorised disclosures]:

Lord McNally moved Amendment No. 71:

    Page 21, line 15, leave out ("another") and insert ("any person").

The noble Lord said: In moving Amendment No. 71 I wish to speak also to the amendments with which it is grouped. The amendments deal with a particular kind of whistle blower. The person required to keep a secret under this Bill will almost certainly be a law enforcement officer, a telecommunications operator or some such person within the system, as it were. The measure seeks to provide a defence for disclosure of malpractice. Making the disclosure of information a criminal offence is rare and justifiable only in particular circumstances.

It is accepted that the revelation of information about telephone taps could have a damaging result and therefore be justified in general. The essential nature of covert telephone tapping is secrecy. Unfortunately, secrecy can all too easily be a cloak for malpractice and abuse. The amendment is therefore intended to ensure that those within the system who are conscious that the system itself is being used for malpractice and abuse can be protected. It is a probing amendment. I beg to move.

Lord Bassam of Brighton: I shall address Amendments Nos. 71, 72 and 73, which are grouped together. It would at first appear that the intention of the amendments is unclear. Having heard what the noble Lord has said, however, I now understand that they are probing amendments which seek to clarify the wording of subsection (4) and to put beyond doubt that the requirement imposed by the subsection to keep things secret from certain people should apply only with regard to those people. In our view, the current wording of the Bill already achieves this, by authorising disclosure in subsection (9) to other people.

As I understand the noble Lord's intention, Amendment No. 73 would effectively insert a "whistleblower's provision", enabling a person who believed that it would be in the public interest to disclose information in a way which Clause 18 would otherwise prevent.

Clause 18 exists to ensure that the interception regime in this country continues to produce high quality information and that the public interest is not harmed by the unwarranted disclosure of extremely sensitive information. A defence is provided in subsection (9) to ensure that individuals served with a warrant can, where it is authorised by the terms of the warrant, consult within their organisation about how best to comply with it, and that any person who is concerned about the legality of a warrant, or anything done in connection with it, at least shall have a route through which to air their concern. We are confident that the subsection (9) defence meets both of these aims.

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As my right honourable friend the Home Secretary plainly stated in another place, the Government very much welcome the fact that the interception commissioner is someone of high judicial standing. Previous commissioners' reports clearly demonstrate the professional thoroughness and seriousness with which commissioners have approached their task. I have no reason to doubt that they would listen to the concerns of staff in the agencies, or elsewhere, with equal seriousness. Subsection (9) not only allows disclosures to be made to the commissioner, but also for them to be authorised by him. In drafting this provision, we had specifically in mind the need for the staff of that commissioner to be able to go to the police with information about alleged malpractice.

With regard to Amendments Nos. 71 and 72, I am advised that Clause 18 permits all those who have a "need to know" to have access to the information that they require. Experts in the computer industry have professed themselves happy with the defence that subsection (9) provides in this case.

With regard to Amendment No. 73, I hope that the Committee will be reassured by the provision that the subsection makes for disclosures to be made to and by the interception commissioner.

I hope that the noble Lord, having listened to those points, will feel able to withdraw his amendment.

Lord McNally: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 72 and 73 not moved.]

Clause 18 agreed to.

Clause 19 agreed to.

Clause 20 [Lawful acquisition and disclosure of communications data]:

[Amendment No. 74 not moved.]

10.30 p.m.

Lord Cope of Berkeley moved Amendment No. 74A:

    Page 22, line 38, at beginning insert--

("Subject to subsection (2A),").

The noble Lord said: Amendment No. 75A refers to subsection (2A), which is the nub of this matter. With this clause we have moved on to the issue of "communications data". We shall come to the question of exactly what the phrase means--it is not clear at the moment--but that will be the subject of a future debate.

The question that the amendments are intended to raise arises from the existence of the so-called "black boxes". The question is whether black boxes could in future be programmed so as to obtain communications data directly for the police, the security services, or whoever, without the knowledge of the Internet service provider. At the moment, the Government have not said whether it is their intention that it should be possible that communications data

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can be obtained in this way. They have not clarified--and, so far as I can see, the Bill does not clarify--whether it would be unlawful for that to happen.

However, the Home Secretary said that the Government Technical Assistance Centre would not be used to access communications data. That was stated in a letter to the Financial Times a few days ago as a part of his counter-attack against the pressure that there has been on the Bill as a whole. That makes us think that amendments like these are necessary to make it unlawful to obtain communications data except by proper means--and that is all that the amendments seek to do. I hope that they fulfil the desire that the Home Secretary expressed in his letter to the Financial Times. I beg to move.

Lord Bassam of Brighton: In responding to Amendment No. 74A, I shall speak also to Amendments Nos. 74B and 75A.

As I understand them, the effect of Amendment Nos. 74A and 75A would be to make the Bill the only way in which communications data may be obtained. Amendment No. 74B seeks to restrict the purposes for which conduct authorised by an authorisation or notice under this Bill would be lawful.

It is perhaps appropriate that I should take some time and go through issues relating to communications data. The first question we should consider is what are "communications data". In simple terms, they are data associated with the processes of delivering a communication from A to B, but the expression does not include any of the content of the communication itself. In the telecoms world, the phrase "communications data" covers such things as subscriber details, itemised billing on the internet site and addressing information. But, where a person's visit to a website becomes a transaction with that website, this information is far more analogous to a telephone conversation and is therefore "content of communications".

But why does anyone need to access these data? Communications data provide lifestyle information, which is a vital starting point in any investigation. They can provide a lot of information which could be gathered otherwise only by physical surveillance--although I would argue that being followed around by a surveillance team is probably a good deal more intrusive than a person examining my telephone bill or my Internet activities. So, while I fully accept that accessing communications data is clearly an intrusive activity which should be properly regulated, it is important to remember that we are not talking about the content of the communications.

The difference between accessing communications data and interception can be equated to the difference between directed surveillance and intrusive surveillance. Although communications data have been accessed for many years under a variety of statutes, this is the first time that the Government have sought to place these arrangements on a clear and specific statutory basis.

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The effect of this part of the Bill will be to provide far greater accountability, oversight and safeguards--something we all wish to see--for accessing this type of data than has previously been the case. Furthermore, it will be done in a manner that will work in an operational context.

For the most part, communications data are currently provided for under the Data Protection Act 1998. Although these are voluntary arrangements and the holder of the data is under no statutory duty to provide them, in practice they invariably do so. But although it is the requesting agency--for instance, the police--which is in possession of the facts of the case, any liability for improper supply rests with the data holder. No statutory levels for authorisation are in place, nor is there any statutory consideration of necessity and proportionality. Furthermore, no effective oversight of the process is provided. The existing framework works as well as it does only because of the work that has been put into codes of practice and the development of good working practices by the communications industry and the law enforcement agencies--although I should stress that none of these arrangements has any statutory basis either.

It is beyond doubt that personal data is a growth business. Much of our debate has covered that obvious point. It is possible to buy off-the-shelf databases which provide all kinds of personal information, including communications data. Personal information is available to any member of the general public who chooses to buy such a product. No doubt noble Lords often receive--as I do--personalised but unrequested mail offering everything from loans to double glazing to new visa cards. These companies hold personal data on us all for the purpose of selling to us. The Bill seeks to provide a statutory means by which those charged with investigating people who circumvent the law may access this valuable source of information.

The number of requests made currently for communications data is far greater than the number for interception warrants, but that is not altogether surprising. A great deal more petty crime than serious crime is committed in this country; far more police officers are employed in the investigation of relatively petty crime than of serious crime. It is because communications data are so useful that so many requests are made each year. I am sure the noble Lords will wish to be reassured that this information is being used proportionately and where necessary.

I can advise the Committee that during the first three months of this year, 96.8 per cent of all the communications data requested by HM Customs & Excise has been for subscriber details, which is the most basic level of check. Some 2.9 per cent of the remainder has been for itemised billing inquiries; the remaining 0.3 per cent has been for other services, none of which is more intrusive than those carried out by a surveillance team. That equates to a total of 18,940 requests, which is clearly far more than could easily be accommodated by judicial authorisation. It is important to record that point.

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We must ask ourselves whether all these requests are necessary. This is a matter which the Bill will address by requiring that no authorising officer shall authorise a notice unless obtaining the communications data is both necessary and proportionate. At present the Data Protection Act safeguards are essentially rather lax; they have been tightened only by means of voluntary co-operation between the telecommunications industry and the law enforcement agencies. But currently there is no independent oversight, which is perhaps a weakness in the structure. The Bill places oversight of the use of this power under the remit of the interception commissioner. We plan that an audit team from the commissioner's office will undertake periodic inspections of each body to ensure that the power is being used responsibly. The team will inspect records, checking the details to ensure the necessity and proportionality of what is required.

I have explained that the information which can be obtained through communications data is certainly no more intrusive, and is indeed generally less intrusive, than directed surveillance; that is, surveillance in a public place which gives information about lifestyle, contacts and movements. This is normal, day-to-day policing activity and is authorised within the police force at an appropriate and senior level. We currently consider that the rank of superintendent is the right level for this type of authorisation. We also think that that is the appropriate level for accessing communications data. From the point of view of assessing levels of intrusion, we believe that internal authorisation is right.

We must also consider the numbers of notices that are likely to be served under these provisions. They are far higher than the number of interception warrants, because communications data is used for far more purposes than interception of communications or other highly intrusive techniques. Judicial authorisation for this would not only be inappropriate; it would also place unacceptable strains on the court service.

I now turn to Amendments Nos. 74A and 75A and to the more precise detail. While it is right that the Bill will provide a much better statutory framework for accessing communications data than the arrangements that currently exist, there are circumstances in which access to material may not be possible under the Bill, yet the person requiring the data may have a quite legitimate claim. For instance, communications data is sometimes required by defendants in criminal proceedings when they feel that it would assist their case. They obtain the data under a judicially authorised production order. That is the route that international requests normally follow. So while the vast majority of communications data will be supplied under these arrangements, there will be some exceptions for which the Bill does not cater.

There will also be cases where communications data, like any other document or piece of information, can be obtained compulsorily by bodies with their own compulsory powers. However, it may reassure the noble Lord to know that, since the arrangements under the Data Protection Act are voluntary, holders

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of communications data will be quite within their rights to refuse to supply under the Data Protection Act and to insist that the strict controls imposed by the Bill are, instead, adhered to. They would, of course, still be obliged to supply communications data in response to a judicially authorised production order.

We touched earlier on the phrasing that Amendment No. 74B would seek to remove. But through the act of accessing communications data, the person accessing it may be committing other offences or torts, in particular under the Human Rights Act. The words "for all purposes" ensure that he has a defence.

I apologise for the length of that explanation, but it may be for the benefit of the Committee. I trust that, having heard my remarks, the noble Lord will consider withdrawing his amendment.

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