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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 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.
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
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.
("(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.").
House adjourned at two minutes before midnight.
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