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Lord Cope of Berkeley: As I indicated earlier, the level at which these decisions are taken depends on the definition. However, the noble Lord has made a good point in suggesting that this particular amendment is rather too restrictive. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Lord Cope of Berkeley moved Amendment No. 85:

The noble Lord said: We move on here from the people who can access communications data, or give permission to do so, to the purposes for which that can be done. Paragraph (c) in subsection (2) is directed towards,

    "the economic well-being of the United Kingdom".

There was a certain lack of precision as to precisely what that means when we discussed the matter earlier under Part I/Chapter I of the Bill.

Amendment No. 86 is also in this group. Its purpose is to restrict the provision in subsection (2)(f), which extends the collection of communications data to the purpose not only of,

    "collecting any tax, duty or levy ... [but also any] other imposition, contribution or charge payable to a government department".

This provision is extremely wide in term of collecting taxes, contributions or charges. The Government can use the power to collect their bills. Anyone who owes money to the Government under some charge or other could find his telephone communications data or his Internet communications data being tapped for that purpose. As I say, that is extremely wide and there is a catch-all at the end of subsection (2) in paragraph (h), to which Amendment No. 87 refers, which allows the Secretary of State to extend this purpose to absolutely any other purpose.

I am glad to say that that provision will at least be covered by an affirmative resolution in the future. I am grateful to the Minister for agreeing that an affirmative resolution is appropriate in such cases. The general point here is that these are extremely wide purposes, especially the catch-all provision at the end of the subsection. I beg to move.

Lord Bassam of Brighton: The amendments that are grouped together here relate to the recommendations of the Committee on Delegated Powers and Deregulation. What we have attempted to achieve here in the government amendments is the usual acknowledgement of the points made and to change the approach that we considered earlier to be right and proper.

One of the recommendations of the committee was that we should tighten up the arrangements for adding to the grounds on which the various investigative powers can be used. We have given this very careful consideration. As I indicated on Second Reading, we accept the weight of the argument. Therefore, I have tabled these amendments that ensure that, in respect of

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each of the powers at issue, any which are additional to the purposes for which those powers can be used will be subject to the affirmative resolution procedure.

I have written to the noble Lord, Lord Alexander, in response to the preliminary letter from his committee. Noble Lords now have the benefit of the full report, which I may take some time to consider along with the 21st report, received at the end of last week. In my letter to the noble Lord, I explained briefly why we had not initially proposed the affirmative procedure in respect of this secondary legislation. The reasons that I outlined directly affect our initial response to the second part of the committee's recommendation. The committee recommended not only that these orders should be subject to the affirmative resolution procedure but also that the Bill should explicitly recognise that none of the orders could include purposes that would go beyond those permitted in the convention on human rights. We have now considered this, but we genuinely do not believe it to be necessary.

The powers in this Bill will be limited by the Human Rights Act as a matter of law, and not simply as a practical limitation. The Secretary of State may make no order that is incompatible with the convention. It is our considered view that to state on the face of the Bill that the convention rights must circumscribe any use of these orders will add nothing to the situation at law. This is an important point. It will be relevant to all legislation in the days after the implementation of the Human Rights Act. Whether we choose to place the requirements of the Human Rights Act on the face of the Bill may set a precedent for future similar legislation.

The 21st report of the committee released last week does not press for further restriction in respect of the purposes that can be added for the use of these powers. For those reasons I suggest that we should resist the opposition amendments. However, I am grateful to the committee for the important work it has done and for the way in which the noble Lord, Lord Cope, raised the issue. I invite the noble Lord to withdraw the amendment.

11.30 p.m.

Lord Cope of Berkeley: As I indicated, when we see the new definition it may be necessary to return to the matter. However, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 86 and 87 not moved.]

Lord McNally moved Amendment No. 88:

    Page 24, line 8, leave out subsection (3).

The noble Lord said: This is simply a probing amendment to discover what circumstances are envisaged for authorising certain conduct. We are a little concerned that the measure is close to self-authorisation. I beg to move.

Lord Bassam of Brighton: This is a useful probing amendment. As I understand it, the amendment would

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remove the ability of the agencies named in Clause 24 to authorise their own staff to collect communications data.

I think I have already explained the scale and type of information which is obtained through access to communications data. We do not believe that it is any more intrusive, and perhaps even generally less intrusive, than directed surveillance, which might involve teams trailing someone. This surveillance gives up information about people's lifestyles, their contacts and their movements. This is normal, day-to-day policing activity. As I think I have said before, it is authorised within police forces at an appropriate senior level. We consider that superintendent, or equivalent for other investigating bodies, is the right level to authorise directed surveillance. We think that this is also an appropriate level in terms of accessing communications data. From an intrusion point of view, we think that we have the internal authorisation about right.

The interception commissioner, with his audit team, will oversee the operation of this system and, of course, will report annually to the Prime Minister. I am sure that that will greatly reassure the Committee. As I understand the position, this authorisation regime, coupled with the oversight described, is far tighter than under the current Data Protection Act. While recognising the legitimate desire further to tighten the regime, the noble Lord should recognise the provision as a considerable move in the right direction and one that takes account of practical considerations as much as anything else in authorising requests for communications data. I trust that with those comments and assurances the noble Lord will feel able to withdraw the amendment.

Lord McNally: As the Minister brought the Prime Minister into the matter I have no hesitation in withdrawing the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cope of Berkeley moved Amendment No. 88A:

    Page 24, line 11, at end insert--

("( ) The designated person has the appropriate permission if, and only if, written permission for the giving of the notice has been granted by a magistrate.").

The noble Lord said: This may not be an elegantly drafted amendment but I hope that its purpose is clear. It depends--as does the whole of this part of the Bill--on the definition of "communications data". If one assumes that that definition is the wide definition that it appeared to be until a few minutes ago, I believe that it is necessary to ensure that there are proper controls over access to communications data. It seemed to me that there was a similarity between accessing communications data and going into someone's house, as I briefly mentioned earlier. We know that a search warrant requires an application to a magistrate. This measure does not rule out search warrants. They are extremely important; they play a valuable part in

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the work of police forces; and they are frequently quite properly granted by magistrates. These warrants would no doubt be granted on a similar basis.

The question is whether this oversight is required. Until we know the definition, one can only give a provisional answer to that. But it seemed to me worth considering and at least putting down a marker, to which we can return should the definition not prove to be quite as it has so far been explained to us. I beg to move.

Lord Bassam of Brighton: The amendment is essentially unnecessary, not least because we have had some useful debate about the definition of "communications data" and it now seems to be accepted that we shall table an amendment which everyone hopes will be helpful. I certainly hope that it will be. If I were to read out my speaking note on this amendment, we would probably begin to get a little bored, because it repeats the argument that I used in the earlier discussion.

However, there is one important point that needs to be made. If we accept these amendments, we shall effectively be relying upon judicial authorisation, which would be a rather clumsy and perhaps even a slightly blunt implement to use. It would place an unacceptable strain on the court service and would perhaps make it more bureaucratic and less user friendly for the investigating agencies. In such instances it would be far more preferable to use somebody of a senior rank in the police service. As I earlier argued, we believe that the rank of superintendent is about the right level.

I very much encourage the noble Lord to withdraw his amendment. We are now discovering some common territory between us. The useful discussion that we had earlier should enable him to withdraw this amendment, although I quite take the point that he has put down a marker for future debate, if he and other Members of the Committee are not happy with the eventual definition.

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