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Lord Cope of Berkeley: With respect to Amendment No. 188, I fully accept that Clause 14 is covered by the provisions in subsection (2)(d). But the wording is significantly different from that in subsection (2)(a). Subsection (2)(a) refers to a review being of the "exercise and performance" of the various matters, which is also the wording in paragraphs (b) and (c); whereas subsection (2)(d) merely states that the commissioner shall review "the adequacy of the arrangements" by which duties are sought to be discharged. It is a considerably lesser hurdle. As the arrangements we are talking about are the ones for certificated warrants, it is important that they should be properly supervised. Therefore, I hope that the Minister will reflect on his answer on that matter between now and Report.

Lord Lucas: I am so pleased by the news that Clause 12 is under active review that I am prepared to withdraw almost anything, and certainly this amendment. I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

[Amendments No. 188 and 189 not moved.]

11.30 p.m.

Lord Phillips of Sudbury moved amendment No. 189A:

    Page 57, leave out lines 36 and 37 and insert (", provide the Commissioner with such technical and other staff, equipment and other resources as may be requisite to enable him to carry out his functions").

The noble Lord said: The amendment is designed to try to ensure that the power and resources of the interception of communications commissioner are sufficient for him or her to do what is, on any reckoning, a massive job. The background is that the Bill represents a complex and vast legal superstructure necessary in order to control a burgeoning new industry, increasing in scale and scope day by day. Therefore, I do not think it is helpful to consider the power and resources of the commissioner against those currently at the behest of the existing interception commissioner.

We on these Benches feel that the duties of the commissioner under the clause are enormous. Basically, apart from the few clauses to which the noble Lord, Lord Bach, referred, he or she is the watchdog of the whole Bill. Unless there are fully adequate resources in all respects--people, machinery, equipment and so on--there is no chance that what we all so devoutly wish for will come about, namely, that the great powers and discretions under the Bill will be matched by commensurate safeguards. The motif of all these debates is concern about civil liberty issues above all others.

The commissioner's duties under subsection (2) go to the whole of the operation of the Bill, except for the few matters mentioned. It will be necessary for the commissioner to have oversight of the 10 categories of authority set out in Clause 6; of the eight categories of authority set out later in the Bill; and of the police forces, not just at chief constable level but at lower levels as will be authorised as the Bill comes into effect, where one is issuing direct surveillance authorisations and covert human intelligence authorisations. There are emergency warrants to consider, intrusive surveillance procedures to oversee. Every discussion on every amendment has pointed to the difficulty and complexity that that will involve.

I suppose that what the amendment is based upon is a doubt that in the event there will be sufficient resources available to the commissioner. Our governance is littered with individuals who have huge jobs to do with inadequate resources. I mentioned earlier the failure to deal at all with insider trading in the City, which is partly a function of lack of sufficient expertise and resources.

I am grateful to the noble Lord, Lord Bassam of Brighton, for responding as he did two days ago to a letter I wrote him on 13 June raising these concerns. He referred to the hope of a unified and investigative secretariat whose resources would be available to the

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interception commissioner. He also referred to the remarks of the noble and learned Lord, Lord Nolan, in the 1997 report of the commissioner. (I am glad to see the noble and learned Lord in his place.) However, those remarks were concerned with the extent to which it was believed that the Secretary of State dealt with warrants properly. This amendment is not concerned with the Secretary of State; it is way downstream of the Minister.

The noble Lord, Lord Bassam of Brighton, also said in his letter that,

    "Clause 54(1) imposes a duty on everyone involved in interception to disclose or provide to the Commissioner all such documents and information as he may require to carry out his functions. This means, for example, that expert technical staff in the agencies would be obliged, at the request of the Commissioner or his staff, to explain how any particular system worked".

I do not believe that that is remotely good enough. The commissioner will require his own bespoke staff and not be reliant upon calling in experts or staff from other agencies who may already be heavily involved in important work.

The Minister also said it was expected that the commissioner would have a staff of four:

    "one grade 7, one higher executive officer, one administrative officer and a personal secretary".

I do not believe that they will be remotely adequate to do the job thoroughly in a way that puts the fear of god into those with these great powers that, if they do not exercise them properly and with due diligence, they are likely to be caught out. Unless that happens the people of this country will not be satisfied with the powers provided under the Bill. I am sorry to detain the Committee at this time of night, but I believe that this is a very important point. I beg to move.

Lord Nolan: For one of Her Majesty's judges, I have been silent for what must be a record time. I rise to agree with the noble Lord, Lord Phillips of Sudbury. As I am sure the Minister accepts, this is a very important point. During the six years that I held the post of commissioner up until April of this year, year after year I was able to assure the public in my reports not only about the remarkable efficiency of the system but of its integrity. I was able to say, as I firmly believed, that the possibility of the system being abused by government or government agencies was remote, almost inconceivable. That was due to the very high quality of the individuals in the agencies, the government departments concerned--the Home Office, Foreign and Commonwealth Office, the Northern Ireland Office and Scottish Office (now the Scottish Executive--the Secretaries of State of this and the previous administration, who have been most conscientious, and the individual employees of the telephone companies and the GPO. They are very carefully picked and have proved themselves totally trustworthy in operating the system.

The integrity of the system is paramount and, as the noble Lord, Lord Phillips of Sudbury, said, will become of even greater importance under the enormously increased scope of the commissioner's job as provided for under the Bill. The burden on the

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commissioner has already greatly increased under the present system, as is well known to the Home Office and to Ministers.

When I sat as a judge full-time in this House I spent about six weeks a year simply on the work of the commissioner. I did not find it a terrible imposition, but it was a burden on my fellow Law Lords who had to work that much harder. I believe that that point must be addressed in future. In the past 18 months or so the work has taken me, on an annual basis, at least eight weeks. Clearly, given the increased responsibilities the staff available to the commissioner must be substantially increased. I know that a good deal of thought has been given to the matter, and I look forward to hearing in more detail precisely what stage the preparations have reached. Knowing how well the problem is understood, I hope also that the points raised have been anticipated. I shall take a close interest in the matter and will be prepared to raise it in this Chamber should the need arise. The crucial factor is that the public should be able to feel that the commissioner has the knowledge and resources to carry out his functions.

We may be reaching the position where it is beyond the scope of one man or woman even if he or she is a retired judge. It may become necessary to consider, as it has with the chief surveillance commissioner, the appointment of a deputy to work in harness with the interception of communications commissioner. I am prepared to wait with interest to see what is proposed. I trust that it will be--in line with what has already been said to me privately-- adequate for the purpose. I look forward to hearing the Minister.

Lord Bach: The noble Lord, Lord Phillips of Sudbury, is very fortunate indeed in the support he has for the principle underlying the amendment. As we have all noted, the noble and learned Lord, Lord Nolan, has sat with incredible patience for hour after hour through the late afternoon, the early evening and into the small watches of the night before speaking. The fact that he has spoken on this issue shows how deeply he feels about it. The Government are very sympathetic, of course.

In responding to an earlier amendment, we indicated that we have great sympathy with the suggestion that there should be a facility in the order made under Clause 12 to require that any capability developed should provide the commissioner with the wherewithal to fulfil his duties in the face of rapid technological development. We shall return to that question on Report.

The noble Lord, Lord Phillips, referred to Clause 53(7). That is a helpful subsection. There is further reassurance in Clause 54(1), which imposes a duty on everyone involved in interception,

    "to disclose or provide to the ... Commissioner all such documents and information as he may require ... to carry out his functions".

That means, for example, that expert technical staff in the agencies would be obliged at the request of the commissioner or his staff to explain how any particular system worked and to show them the information stored on it.

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The practice of successive commissioners--as the Committee knows, the current commissioner is the very distinguished judge Lord Justice Swinton Thomas--has been to make regular visits to the intercepting agencies and to inspect the warrant-issuing units of the four central government departments. Indeed, the noble and learned Lord, Lord Nolan, noted in his report for the year 1995 that he had extended his study so as to include the safeguards operated by the public telecommunications operators.

It has always been government practice (whichever government are in power), as was said by the noble and learned Lord, to provide the commissioner and his staff with the necessary office accommodation and equipment to do their job properly and effectively. I assure the Committee that that practice will continue under the new regime.

I can confirm the contents of the letter that the noble Lord, Lord Phillips of Sudbury, received recently from my noble friend about the kind of thinking at the Home Office on how best to ensure that the interception commissioner has the support and staff necessary to carry out his new functions. The Government are thinking carefully about the best way to pursue that. I do not think that there should be any question about our motives. We agree entirely with both speakers about how important that is. It would be useful if the noble Lord withdrew his amendment today. It is not an issue that is dead.

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