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Lord Bach: As I understand it, an authorisation under Section 21(3) must cover paragraphs (a), (b), (c), (d) and (e). That is the reason why the provision is drafted in this way.

Lord Lucas: I agree that that applies to the authorisation, but what is in the record?

Lord Bach: Obviously, the fact that an authorisation is written ensures that a record is made. What is done with the record is properly a matter for the code of practice. I think that is the best I can do on this point at this hour of night. In those circumstances, perhaps the noble Lord, Lord Cope, will withdraw his not too old-fashioned amendment.

Lord Cope of Berkeley: I thought that it had proved rather old-fashioned. The noble Lord, Lord McNally, attempted to make a cheap party-political point in the course of the debate.

Lord McNally: If I stay here until 10 minutes to midnight, I reserve the right to make cheap political points!

Lord Cope of Berkeley: I am not trying to take away that right; I merely comment on the fact that the noble Lord chooses to take up our time at this hour of night making such a point. It was perfectly obvious that the most modern person among us was the holder of the most ancient peerage. I refer to the noble Lord, Lord Lucas, whose peerage goes back much further than that of any of the rest of us, and who has taught us all a lesson in modernity. The great advantage of the amendment has been that it has enabled my noble friend to reveal some seeming flaws in the drafting of Clause 22(1) and (2). That having been usefully achieved, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 93 to 95C not moved.]

Lord Lucas moved Amendment No. 96:

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 97. Both amendments are examples of matters that would concern me under the old definition of communications data. That is certainly true of Amendment No. 96. Amendment No. 97 may have a wider application--certainly not in current practice, but if the definition of communications data with which we are left is such as to encourage any form of

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trawling for associations, for the way in which communications data link with each other to provide a pattern of association. Under those circumstances Amendment No. 97 would be an appropriate safeguard to have in the Bill. However, I am content to wait and see what form the definition will take before deciding whether the amendment is still required. I beg to move.

Lord Bassam of Brighton: The amendment would restrict the onward disclosure of communications data from one investigating agency to another. That would be the effect of the amendment as I understand it.

Lord Lucas: I was speaking to Amendment No. 97 as well. I am waving Amendment No. 96 goodbye. Given the noble Lord's earlier remarks, it is probably not appropriate. I merely put down a marker that that is the way I was thinking under the old definition. Amendment No. 97 depends on the new definition . If trawling for association data--in other words, asking for a wide spread of communications data so that one can begin to pick up associations--is to be allowed, or regarded as appropriate, that kind of activity should require an additional safeguard. This amendment suggests an additional safeguard.

Lord Bassam of Brighton: I am grateful to the noble Lord. The hour is late, and I have been up for far too many hours. In general, the noble Lord is right to wait for the definition. Looking at Amendment No. 97, we believe that there are important prohibitions already in the Bill against the kinds of fishing expeditions which the noble Lord fears. For instance, data cannot be required unless the authorising officer considers that the data are both necessary (as in Clause 21(2)) and proportionate (as in Clause 21(5)). He or she knows that the decision will be subject to review by the commission and, if the data are used evidentially, by the courts.

There is also the practical difficulty that in respect of virtually all communications data it will be impossible for the authorising officer to state honestly that the data required are in respect of only one person. In the case of the lowest level of intrusion, a subscriber check--which accounts for 96.8 per cent of customs inquiries--the investigating agency has only the phone

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number or e-mail address. It does not know how many people may use the telephone or e-mail. A similar principle applies to itemised billing, which is far more intrusive. If I was being investigated and the itemised billing for my home telephone was required by notice, that data would relate to more than one person since many other people apart from me make calls on that telephone.

One ends up in a situation where every single communication data notice must be authorised by a commissioner. I am sure the noble Lord readily accepts that that would be unworkable for the reasons that have been given. I hope that the noble Lord will withdraw his amendment and await the return of definition, as it were.

Lord Lucas: I stand educated. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 97 not moved.]

Clause 22 agreed to.

Clause 23 [Arrangements for payments]:

[Amendments Nos. 97A and 97B not moved.]

Clause 23 agreed to.

Clause 24 [Interpretation of Chapter II]:

Lord Bassam of Brighton moved Amendments Nos. 98 and 98A:

    Page 26, line 29, leave out ("and their department").

    Page 27, line 3, at end insert--

("(5) The Secretary of State shall not make an order under this section that adds any person to the list of persons who are for the time being relevant public authorities for the purposes of this Chapter unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").

On Question, amendments agreed to.

[Amendment No. 99 not moved.]

Clause 24, as amended, agreed to.

Lord Bach: My Lords, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

        House adjourned at two minutes before midnight.

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