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Lord Lucas: My Lords, I apologise to the noble Lord but it seems that he has missed a point in this amendment, which is that it does not cover that data. It covers only the remaining data. The proposed authorisation relates only to data which are not subscriber data. That is why it says that it relates only to (a) and (b) and not (a), (b) and (c).

9.45 p.m.

Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord for the further clarification. However, as I understand the drafting of the amendment, it would have that far wider impact. I take what the noble Lord says at face value but I consider that it would lead to a chaotic situation. I do not believe that he appreciates the effect of his amendment.

Perhaps I may complete the point that I was making. I referred to the fact that 2.9 per cent of the remainder had been for itemised billing inquiries and the remaining 0.3 per cent for other services, none of which is more intrusive than those carried out by a surveillance team. That equates to a total of 18,940 requests. That is what I put on the record when we last discussed this issue. It is the 0.3 per cent of requests for other, more intrusive, types of communications data which I want to address.

Already under the non-statutory arrangements agreed between the law enforcement, security and intelligence agencies and the telecommunications industry access to "more intrusive types of communications data" must be authorised at a more senior level within the agency, whereas "intrusive communications data" must be authorised at assistant chief constable level. I believe that that is the right approach and that it should be reflected in statute, both in the order made by the Secretary of State under Clause 24(3) and in the code of practice. Different levels of authority are not shown in the preliminary draft of the code because defining the different levels of communications data in a future-proof manner will require further work, including input from the industry.

I believe that that should provide sufficient comfort to the noble Lord. On that basis, I invite him to withdraw his amendment. I am, as ever, open to further representations. If he wishes to pursue the

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matter further between Report and Third Reading, he can do so and I shall be more than happy to look again at what he said.

Lord Lucas: My Lords, of course, likewise, I shall read carefully what the Minister has said. However, I believe that his figures have made my case for me. He says that 0.3 per cent of approximately 19,000 interceptions by Customs and Excise in a six-month period would fall under the heading of my amendment. If my calculation is correct, 60 of them--10 per month--would require a magistrate's warrant. That seems to me to be entirely reasonable.

Lord Bassam of Brighton: My Lords, does the noble Lord not accept that we have already established a sufficient level of seniority for that most intrusive form of interception to be authorised?

Lord Lucas: My Lords, I shall consider that before Third Reading. The Minister has made his case and I plead for time to consider it. We are arguing not about whether some data should have higher-level authorisation but about what that higher level should be. If I feel that I have a further case to make to the Minister, I shall do so before or on Third Reading, but for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 31:

    Page 24, line 23, 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 Bach moved Amendment No. 32:

    Page 24, line 25, at end insert--

("and in this section "data", in relation to a postal item, means anything written on the outside of the item.
(7A) The Secretary of State may by order modify the provisions of subsections (4)(a), (6A) and (7).
(7B) The Secretary of State shall not make an order under subsection (7A) 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, I beg to move.

[Amendment No. 33, as an amendment to Amendment No. 32, not moved.]

On Question, Amendment No. 32 agreed to.

Clause 21 [Obtaining and disclosing communications data]:

Viscount Astor moved Amendment No. 33A:

    Page 24, line 44, leave out paragraph (h).

The noble Viscount said: My Lords, this is a probing amendment. Clause 21(2) specifies grounds such as the interests of national security, economic well-being,

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public safety, the prevention of crime and public health. Paragraph (h), down at the bottom, effectively says, "Anything that we have left out we can add in by order of the Secretary of State".

I realise that the Secretary of State would have to come to Parliament to gain approval for such an order, but he could make one on almost any basis. I should like an explanation of what possible basis there could be. The power is wider than it should be and I question the need for paragraph (h). Why do the Government think that it is necessary? I beg to move.

Lord Bach: My Lords, the amendment requires a short debate, similar to one that we had in Committee on the purposes for which surveillance can be used under Part II. It rehearses comments from the 18th report of the Committee on Delegated Powers and Deregulation. As we explained in Committee, the comments in the 18th report have to be read in conjunction with the Committee's 21st report, which says:

    "In its comments on the powers in Clauses 21(2)(h), 27(3)(g) and 5(3) the Committee invited the House to consider whether those Clauses should be amended to limit the apparently wide powers to correspond with the use that Ministers intended to make of them and added that, in any event, all the powers should be subject to affirmative procedure. The Government accept the latter recommendation but reject the first on the ground that the Human Rights Act 1998 effectively limits the powers. The Minister will be obliged to make a statement that an order is, in his view, compliant with that Act. The Committee sees affirmative procedure as giving appropriate Parliamentary control and does not wish to continue to press for amendments to the Clauses".

I repeat those final words:

    "and does not wish to continue to press for amendments to the Clauses".

The Government tabled amendments in Committee to institute the affirmative procedure for such orders. We were grateful that the Committee did not press for further amendment to the clauses. As we said in Committee, the powers in the Bill will be limited by the Human Rights Act 1998 as a matter of law, not simply as a practical limitation. The Secretary of State may make no order that is incompatible with the convention. It is our considered view that to state in the Bill that the convention rights must circumscribe any use of the orders would add nothing to the situation in law.

We can then go on to consider the legitimate purposes for which Article 8 of the European Convention on Human Rights permits interference with the rights protected by that article. There are only two which in some form we have not included in the Bill. Those are, first,

    "for the protection of morals",

and secondly,

    "for the rights and freedoms of others".

We could now, or at some future date, simply add those purposes to the list in Clause 21. But we should not want to do that. They are both too wide-ranging in their purposes. And in their raw form, they are both vague and unclear. Citizens affected by those powers should be entitled to expect more detail on the reasons for which their rights are being interfered with; for

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example, we might, in the future, want a power to be exercisable by a regulator for the purpose of protecting the rights of pensioners or consumers. If so, it would be better to say that rather than to use the catch-all phrase,

    "to protect the rights of others".

So any extension of the powers should be more specific, if possible.

Your Lordships will notice that that is the approach that we have adopted for some of the purposes already listed in the Bill. They do not follow exactly the wording of the convention rights. They are tailored to be as narrow as possible within the convention rights and to meet the requirements of the investigating agencies in the modern age.

We believe that it may be possible to add purposes in the future which are narrower than those left open to us; that is, "for the protection of morals" or "for the rights and freedoms of others". If we can conceive of narrower purposes in the future, we should be allowed to add them because they speak for a better approach than one that is too broad.

These are important issues and they are inextricably linked with the implementation of the Human Rights Act. As a matter of law, it will not be possible for any Secretary of State to make an order that is incompatible with the convention. That is what the Human Rights Act guarantees and that is one of the great benefits of the Human Rights Act which was passed at the instigation of this Government a few years ago. In the light of this situation, the danger perceived in this order-making power simply does not exist. I am grateful to the noble Viscount for raising this probing amendment but I now ask him to withdraw it.

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