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Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord for moving the amendment. I believe that it will enable us to understand each other better on this issue, and I am grateful to noble Lords who have contributed to the debate.

I turn to the amendments which relate to the new definition. Amendments Nos. 5 and 29 would exclude the word "location", as the noble Lord, Lord Cope, explained. However, there are--I believe that the noble Lord, Lord McNally, put his finger on it--many circumstances, not only in criminal investigations,

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where the giving of the location of a person is critical. Let us take, for example, a person who makes a 999 call, perhaps from a telephone box, or even a child who makes a call to the emergency services from his home. Callers are not always in a position to describe their location accurately, yet the communication service provider possesses the information and passes it on to the appropriate emergency service.

There is, of course, another side to the argument in relation to calls to the emergency services. The fact that the location of telephone boxes can be passed quickly to the police acts as a very effective deterrent against hoax callers. The information is no less useful when it comes to mobile telephones. I am sure that we have all read about injured mountaineers who are rescued on the strength of the information which the telephone company is able to give regarding the location of their mobile phones.

I realise that the concern expressed by noble Lords focuses more upon the way in which location data may be used as a surveillance tool rather than as an aid to emergency services. I also recognise that the use of location data should be properly regulated. The noble Viscount, Lord Goschen, made the point very well and it is a topic to which we shall return when we discuss amendments tabled by the noble Lord, Lord Lucas. I believe that I shall be able to offer some reassurance on that score.

As I indicated in my opening remarks, we are considering the appropriate level of authorisation for types of communications data. The noble Lord, Lord McNally, is right to refer to the issue of proportionality and of getting the balance right, particularly in terms of investigations. That issue is already addressed in the non-statutory agreements between ACPO, Customs and the telecoms industry, and authorisation must be sought at the level of Assistant Chief Constable. That is what we intend to put in the code of practice and I believe that that is the appropriate level to which the matter should be referred.

I hope that what I have said about the amendment is sufficient to show that location needs to be included in the definition. Perhaps I should remind your Lordships that this view was shared by those who drafted the European convention on cyber crime, on which the definition is in part based. Therefore, I trust that those reassurances and comments will help the noble Lord, Lord Cope, to withdraw his amendment. I believe that they should.

Lord Cope of Berkeley: My Lords, in the light of the Minister's response, I beg leave to withdraw the amendment.

Amendment No. 5, as an amendment to Amendment No. 4, by leave, withdrawn.

On Question, Amendment No. 4 agreed to.

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Lord Bassam of Brighton moved Amendment No. 6:

    Page 5, line 17, leave out ("References in this section to") and insert ("In this section--

(a) references, in relation to traffic data comprising signals for the actuation of apparatus, to a telecommunication system by means of which a communication is being or may be transmitted include references to any telecommunication system in which that apparatus is comprised; and
(b) references to traffic").

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 7:

    Page 5, line 19, at end insert--

("and in this section "data", in relation to a postal item, means anything written on the outside of the item.
(10A) The Secretary of State may by order modify the provisions of subsections (5), (9A) and (10).
(10B) The Secretary of State shall not make an order under subsection (10A) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").

The noble Lord said: My Lords, in moving Amendment No. 7, I wish to speak also to Amendment No. 32. Together, these amendments make the new definition capable of amendment by the Secretary of State, subject to the affirmative resolution procedure.

Our difficulty here is that in order to define communications data with sufficient specificity to avoid including content of communications data, the definition has become rather more complicated than I suspect many of us would prefer. However, the more complicated a definition, the greater the chance of it being overtaken by technical developments. For that reason, we have sought to leave the Government some flexibility in order to ensure that if the definition becomes badly out of date it can be amended through a relatively simple procedure but still with the oversight provided by the affirmative resolution procedure.

I wish to make two further points. First, I want to state for the record that the definition is intended to cover communications data and not the content of communications. Any amendment to the definition would be carried out only in that spirit. I believe that that needs to be understood. Secondly, none of us can predict how advances in technology might affect the definition--a point acknowledged, I believe, by the noble Lord, Lord Howell. It may move in such a way as to allow intrusion into privacy to occur in a manner that we cannot possibly envisage at present. In those circumstances, a power to amend the definition may be seen more favourably. I beg to move.

Lord Cope of Berkeley moved, as an amendment to Amendment No. 7, Amendment No. 8:

    Line 4, leave out subsections (10A) and (10B).

The noble Lord said: My Lords, it may be convenient to discuss Amendments Nos. 8 and 33 with Amendments Nos. 7 and 32. Although I had previously suggested that they might be degrouped, I believe that it would be helpful to discuss them together.

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There are two parts to Amendment No. 7 and its friend. The first part is, if I may say so, an extremely neat definition of "traffic data" in respect of mail and distinguishes it from "contents". It states quite simply,

    "'data', in relation to a postal item, means anything written on the outside of the item".

So far as I can see, that is a perfect distinction to draw between "contents" and "traffic data". However, that part of Amendment No. 7 and its friend are entirely uncontroversial.

More controversial is the power to which the Minister referred to modify those provisions. He explained that it was intended that the power should be used only in order to preserve intact, as it were, the exclusion of contents. I am paraphrasing, but not inaccurately, I hope.

We would support subsequent modifications that became necessary to ensure the continued exclusion of content, but that is not how the power is written. Sometimes, powers are written to give a one-way ticket for the statutory instruments, not a two-way ticket. For example, in tax law it may be possible by order to alter a particular allowance or tax either upwards or downwards, but not necessarily in both ways. The amendment does not say that the Secretary of State may, by order, modify the provisions of the subsections to preserve content from inspection. It says only that he may modify the provisions--in any way. The order-making power could be used very widely to make it easier for the police and the other services to obtain much more data.

That is an important potential distinction. At one end of the scale is material that can be obtained readily by the police. In the middle, higher permission is required, from the chief constable or the assistant chief constable. At the top of the scale, the Secretary of State's warrant is required. Only a statutory instrument stands between those very different powers. That is what led us to table the amendment. The question is whether the Minister's word that the power will be used in only one way and not the other is sufficient for your Lordships' House. I beg to move.

5.30 p.m.

Lord McNally: My Lords, the amendments have to be seen against the background of two facts. First, as the noble Lord, Lord Cope of Berkeley, has just said, the government amendment could swing both ways. It would not be so bad if we had overall confidence in the Government's instincts in these matters, but given the genuine public concern about the implications of the Bill, the House is right to pause and think whether the Secretary of State should have such powers in secondary legislation.

Secondly, as the noble Lord, Lord Howell of Guildford, said, the problem with the Bill is that it is being enacted against a background of rapidly developing technology. We often see the phenomenon in broadcasting legislation, but it is perhaps even more evident in this case that the Government want as much flexibility as possible in secondary legislation, because they know darned well that the technological

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background against which they are legislating will have changed dramatically within years, or maybe even months.

There is a balance to be struck. How much do we trust the Minister's assurances--which I am sure are made in absolute good faith--about why the amendment is necessary? As the noble Lord, Lord Cope, has rightly pointed out, it does not just give flexibility to underpin the meaning of the present legislation; it leaves a loophole for the Secretary of State to broaden the remit. That is a matter of real concern and the Minister will need to be eloquent to convince the House.

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