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Lord Lucas: My Lords, I have enjoyed listening to the contributions from the Opposition Front Benches. Both noble Lords seemed to be striving extremely hard to give the Government the benefit of the doubt and to find some way in which what is written plainly and clearly in the Bill should not be true. It is absolutely obvious what is in the Bill--at least it is to me--and that is, yes, trawling becomes legal. The Home Secretary has to renew the warrant every three months, but he can trawl on grounds of economic well-being and serious crime, as well as terrorism, to any extent that he wishes.

I do not think that this particular Home Secretary is going to go after a police state in a big way, but we can be certain that we are going to go after the people who start the riots in the City and the football hooligans. That is exactly what the clause permits. It is absolutely obvious that the economic well-being of the UK is affected by both groups. We have lost the ability to stage a major football tournament because of football hooliganism, and the economic well-being of the UK is affected. The reputation of the City suffers from these annual riots, and the economic well-being of the UK is affected. Under those conditions the Secretary of State can go trawling for any group of people that he chooses as long as such a group is reasonably rationally coherent--and certainly the people indulging in both those activities must come under that category. Under this Bill we have the ability to trawl in any way at all as long as it is referable to that kind of thing.

If this is not what the Government intend, I have got the wording wrong. But as they have defended the wording through quite a long parliamentary process, one has to assume that that is what they mean to do. Sometimes this Government do things they do not mean to do--I do not suppose they meant to get Mr Livingstone as mayor of London--but this is an occasion when what they are doing and what they are intending to do must surely coincide.

Lord Bassam of Brighton: My Lords, all noble Lords who have spoken in the debate have done so with great knowledge of the subject. At least they sound as though they have. I shall try from the Dispatch Box to equal that, though I am not sure I shall succeed. I should like to try to respond to the points raised in the debate. With due deference to the noble Lord, Lord Phillips, he asked a whole range of questions with which, frankly, had I managed to follow them in close

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text form, I would have struggled. Outside the arena of the House I shall undertake to look at Hansard, work through them with my officials and provide him with answers. He helpfully said that he saw this as a probing amendment. What I may be able to add to the debate will probably explain in plain terms what we are trying to do.

As we understand it, the amendment--I will be frank about this--would render unworkable the arrangements for interception and selection of external communications. It is just not possible to ensure that only external communications are intercepted. That is because modern communications are often routed in ways that are not all intuitively obvious. Noble Lords who have contributed to the debate understand that. An internal communication--say, a message from London to Birmingham--may be handled on its journey by Internet service providers in, perhaps, two different countries outside the United Kingdom. We understand that. The communication might therefore be found on a link between those two foreign countries. Such a link should clearly be treated as external, yet it would contain at least this one internal communication. There is no way of filtering that out without intercepting the whole link, including the internal communication.

Even after interception, it may not be practicably possible to guarantee to filter out all internal messages. Messages may well be split into separate parts which are sent by different routes. Only some of these will contain the originator and the intended final recipient. Without this information it will not be possible to distinguish internal messages from external. In some cases it may not be possible even if this information is available. For example, a message between two foreign registered mobile phones, if both happened to be roaming in the UK, would be an internal communication, but there would be nothing in the message to indicate that.

It is still the intention that Clause 8(4) warrants should be aimed at external communications. Clause 8(5) limits such a warrant to authorising the interception of external communications together with whatever other conduct is necessary to achieve that external interception. Whenever such a warrant is signed, the Secretary of State must be convinced that the conduct it will authorise as a whole is proportionate--my favourite word--to the objects to be achieved. His decision to sign will be overseen by the interception of communications commissioner.

The next layer of protection is the certificate. Anything that is not within the terms of the certificate may be intercepted but cannot be read, looked at or listened to by any person. Beyond that are the safeguards set out in subsection (2) of Clause 15. Except in the special circumstances set out in later subsections, or if there is an "overlapping" Clause 8(1) warrant, selection may not use factors which are referable to an individual known to be for the time being in the British Islands.

Amendment No. 23 would extend the prohibition on selection by factors referable to individuals in the British Islands to cover also premises in the British

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Islands. It would occasionally have perverse consequences. For example, let us suppose that a foreign terrorist group was planning to blow up a prominent London building--say, the House of Lords. In the absence of any other leads, the agencies would no doubt be searching for any messages mentioning the House of Lords. But that would clearly be a selection factor referable to premises in the British Islands. It does not seem right for that, which would not involve intercepting any communications to or from the House, to need special authority.

As noble Lords can judge from that response, it is a very complex matter. Other points were raised in the debate. The noble Lord, Lord Cope, asked whether the intention is to extend the powers. The simple answer is: from existing new communications, yes, but beyond that, certainly not, no. I hope that clarifies that point. The noble Lord, Lord Phillips, sought some reassurance for himself, and the public perhaps, about the commissioner's role. I can say that the commissioner has the responsibilities to which the noble Lord referred. That much is clear. The commissioner will also be anxious to reassure the public that his oversight of the matter has been both effective and thorough. He has to discharge his duties in those terms.

We would be very concerned if these amendments were passed. As I said at the outset, they would render the arrangements unworkable both for interception and the selection of external communications. They would provide a very difficult situation for those agencies that need to undertake that work. I urge noble Lords not to press their amendments. The noble Lord, Lord Phillips, said that he would perhaps like to have further discussions on these matters. I am certainly happy to facilitate that outside the Chamber. We view these matters very seriously indeed.

Lord Phillips of Sudbury: My Lords, I listened with great interest, as I am sure did other noble Lords, to what the Minister had to say. I accept that I cannot fairly expect the issues raised in the debate to be answered here and now in all particulars. I welcome the noble Lord's agreement to discussions outside the Chamber. In all the circumstances, it would be best to proceed by that route. I am therefore happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cope of Berkeley had given notice of his intention to move Amendment No. 23:

    Page 17, line 32, at end insert--

("or otherwise than according to a factor which is referable to premises in the British Islands").

The noble Lord said: My Lords, I omitted to refer to Amendment No. 23. It is grouped with Amendment No. 22. Fortunately, it did not matter because the Minister replied anyway to what I might have said.

[Amendment No. 23 not moved.]

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9.15 p.m.

Lord Cope of Berkeley moved Amendment No. 24:

    After Clause 18, insert the following new clause--


(" . Notwithstanding the provisions of sections 16, 17 and 18, nothing in this Chapter shall render admissible as evidence in court the contents of an intercepted communication in circumstances where the original communication would not itself have been admissible.").

The noble Lord said: My Lords, with this amendment we move to a very different matter--the question of legal privilege. The Bar Council of England and Wales, through its Law Reform Committee, has looked at the Bill. It has produced an expert memorandum which contains some interesting points. The Law Reform Committee is concerned about the question of legal professional privilege. Even those who are not lawyers support the proposition of legal professional privilege. Lawyers and their clients are in a special position. If a client is to be properly defended, there must be legal privilege. I am sure that I do not differ from the Government in saying that we would want to preserve that in the new circumstances provided by the Bill.

According to the advice I have from the memorandum, there seems to be an absence of protection for privilege. Clauses 16 and 17 do not address that issue. They appear to be derived from similar provisions in the Interception of Communications Act 1985. Even the Law Reform Committee of the Bar Council described them as,

    "poorly drafted, and difficult to understand".

It suggests that they are probably aimed at preserving the secrecy of the fact that the interception of a communication has taken place. I support the idea that interception of communications--the way it has been done and the fact that it has been done--will often need to be preserved as a secret by the agencies indulging in it. However, Clause 17(1)(a) would appear to make the content of intercepted communications admissible in,

    "proceedings for a relevant offence",

notwithstanding the fact that the original communication was the subject of legal professional privilege. If that is so--I rely on the committee of the Bar Council for this opinion--the state could intercept communications even between a solicitor or a barrister and his client and then use the contents of those intercepted communications at the client's trial as evidence against him. There does not appear to be an express saving for legal professional privilege. That is described in the memorandum as "an alarming omission" as it goes not just to the issue of privacy but also to the right to a fair trial and Article 6 of the European Convention on Human Rights.

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Information obtained by surreptitious means should not receive less protection than that which the original communication was entitled to. That is what led the committee of the Bar Council to suggest to me and to other noble Lords the insertion of the amendment into the Bill. I shall be interested to hear the Minister's response to this point. It was raised with me only recently. I nevertheless took the precaution of giving at least an indication to the Home Office of the seriousness of the matter, as it comes from an important source. I beg to move.

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