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Lord Lucas: My Lords, before the noble Lord sits down, will he undertake to take a last look at the way in which the word "key" is used in Clause 47(9) as against the definition that we are now considering? Is he really happy that the definition encompasses the use of the word "key" in Clause 47(9)?
Lord McNally: My Lords, my previous amendment was inspired by the University of Leeds, whereas this one was inspired by the University of Manchester. It is clear that, in spite of the collective wisdom of the great northern universities, the Minister is determined to believe that the man in Whitehall knows best. Reluctantly, I seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 91 to 93 not moved.]
Clause 55 [Interception of Communications Commissioner]:
Lord Phillips of Sudbury moved Amendment No. 93A:
- Page 61, line 23, at end insert ("; and
The noble Lord said: My Lords, Amendment No. 93A is the first of several amendments that I have tabled. I do not know whether it is permissible, or sensible, to speak also to Amendments Nos. 93B, 93C, 93D, 96A and 96B. Perhaps I should stick to the list of groupings. These amendments seek to lend greater strength, resources and authority to the interception of communications commissioner.
Lord Bassam of Brighton: My Lords, we are content to accept on the Floor of the House a re-grouping if the noble Lord intends to speak to all of the amendments.
Lord Phillips of Sudbury: My Lords, I shall try not to confuse noble Lords by grouping the amendments in that way. There is no disagreement between us that the role of the interception of communications
The volume of warrants is likely to be enormous. I have asked those who know better than me the numbers we might be talking about. The best guess was as follows: 50,000 reverse telephone tapping warrants; 10,000 traffic data warrants; 2,000 interception warrants; on security and oversight of keys and their storage, 50 or 100; and possibly 50 certificated warrants. In addition, Clause 55 requires the interception commissioner to keep under review,
The clause requires the interception commissioner to keep under review,
Another enormous obligation, involving a high level of qualitative judgment by the commissioner, is the requirement to keep under review the adequacy of the arrangements by virtue of which a duty is imposed on him under Clause 14 as regards interception warrants, and Clauses 15 and 16 without which Clause 14 cannot be construed. There is a requirement to evaluate the adequacy of the arrangements in respect of Part I and the duties imposed by Clause 53.
I make no apology for reading out those provisions. One needs to have some measure of the complexity and depth of his role and the sheer volume of the matters with which the commissioner has to concern himself.
There is one lacuna in the list of duties. As drafted, the Bill contains no reference to anyone checking how the orders made by the tribunal--its role is also vital--are complied with. Amendment No. 93A gives the interception commissioner that task. The orders of the tribunal relate not merely to the award of compensation but such other order as the tribunal thinks fit. Orders which may be made by the tribunal are itemised in Clause 65(7) as,
I can deal more quickly with Amendments Nos. 93B and 93C. Clause 55(7) relates to the resources to be made available to the interception commissioner. I
We suggest that as well as consulting the interception commissioner and the Treasury before arriving at the resources that the Secretary of State will make available, the Secretary of State will also consult the Intelligence and Security Committee as established by the Intelligence Services Act 1994. It will have a great deal of interest in the workings of the Bill and of the commissioner. That seems a practical measure.
Amendment No. 93D would insert a provision which is in the Intelligence Services Act 1994. Not only will the commissioner's report be made to the Prime Minister and laid before Parliament but also, under the 1994 Act, the commissioner has a right of direct access to the Prime Minister at any time. The amendment seeks to replicate that provision.
Amendments Nos. 96A and 96B relate to the workings of the tribunal. Amendment No 96A is a drafting amendment. It follows the Intelligence Services Act 1994 by defining a "person"--he may be aggrieved and may therefore complain--so as to include organisations and any association or combination of persons. Without that provision, under the normal rules of interpretation they might not be within the class of persons who can complain. We think that they should be.
Finally, Amendment No. 96B would allow the Secretary of State to order that other categories of conduct should fall within Clause 63(5) so as to allow them to be within the ambit of the tribunal in its role as listener to and adjudicator of complaints. The list in subsection (5) is specific. In the event, other categories of conduct perhaps should fall within the ambit of the tribunal in the complaints procedure. I hope that that will be an uncontroversial proposal. I beg to move.
Lord McNally: My Lords, I support my noble friend. He has introduced three important elements which bear close scrutiny by the Government.
Clause 55 states that one of the key responsibilities of the interception and communications commissioner is,
As regards other aspects of the overall supervision of our security services, I have been a strong supporter of the involvement of the Intelligence and Security Committee. I believe that my noble friend has produced an excellent proposal in Amendment No. 93B. I endorse Amendment No. 93D with a little direct experience. When I worked at No. 10 for the noble Lord, Lord Callaghan, as he now is, it was a way of getting action in other parts of the Whitehall jungle to imply that, however reluctantly, we might have to draw a matter to the attention of the Prime Minister. To have in the commissioner's armoury the ability to say, "This is a matter that I want to take directly to the Prime Minister" is extremely strong and an ability which, given the nature and stature of the commissioners, would be used very sparingly. It is still a very useful shot to have in the locker.
Lord Cope of Berkeley: My Lords, I express general sympathy for this batch of amendments. It is important that the commissioner should have the appropriate staff. He or she will clearly need to have technical staff of a high order. As regards the Prime Minister, I was very interested in the slight lifting of the curtain as to how No. 10 worked in the days when the noble Lord, Lord Callaghan, was Prime Minister. It is extremely interesting, but not exclusive to that particular premiership. Not everyone who has had the experience of the noble Lord, Lord McNally, and myself, to a smaller degree, realises that whereas "Yes Minister" might be regarded as a joke book by other people, in Whitehall it is a textbook. The noble Lord, Lord McNally, makes a powerful point.
(e) the carrying out of the orders made by the Tribunal under section 65").
7.30 p.m.
"the exercise and performance by the Secretary of State of the powers ... under sections 1 to 11",
and under Part III in respect of information obtained under Part I.
"the exercise and performance,"--
it is an enormous obligation--
"by the persons on whom they are conferred or imposed ... under Chapter II of Part I".
"(a) an order quashing or cancelling any warrant or authorisation; and
(b) an order requiring the destruction of any records of information",
as set out in the Bill. That is a hugely important underpinning of the Bill. We believe that it makes sense for the commissioner to be responsible for overseeing the carrying out of those orders.
"the exercise and performance by the Secretary of State of the powers and duties conferred or imposed on him".
The commissioner is in some respects a supervisor of the Secretary of State. Therefore, we are concerned that it is the Secretary of State and--Lord help us--the Treasury who will be the arbiters of the commissioner's needs. As my noble friend made clear, it is a very big job indeed. Part of the confidence that we have been looking for throughout the Bill in giving powers to agencies of the state is to make sure that the commissioners have the means to do the job.
7.45 p.m.
Lord Bach: My Lords, I shall follow the example of the noble Lord, Lord Phillips of Sudbury. He spoke to a number of amendments in different groups, but only one is before us at the moment. I shall also speak to them. I am grateful to the noble Lord for the way in which he dealt with the amendments.
We are very sympathetic to the general tenor of the amendments and wish to do everything we can to agree with them. Unfortunately, for the most part I shall resist them while agreeing absolutely that the role of the commissioner is crucial.
I resist the amendments not because I have been told to do so but because the Government believe that the very real worries the three noble Lords have raised are met by what happens and by what is in the Bill. I begin with Amendment No. 93A. The intention is to add to the duties of the commissioner the oversight and the carrying out of any orders made by the tribunal. The fear is that without that addition no one will ensure that public authorities carry out the orders that the tribunal makes. That would add to the duties of the interception commissioner the task of ensuring that orders made by the tribunal were carried out. While we are in agreement that a power to ensure that should be available, we believe that such a function is primarily for the tribunal itself. The fact that the proceedings will usually not be adversarial means that we expect the
tribunal to take a much more pro-active role in enforcing orders than would a court. For example, we expect that the tribunal will have power under rules to direct the agency concerned to report back to the tribunal on steps taken to carry out an order.However, where the tribunal decides that it needs the assistance of either the interception commissioner or the intelligence services commissioner, it may turn to Clauses 55(3) and 57(3), which place a duty on each of them respectively to give the tribunal all such assistance as it may require in connection with its investigation of any matter. The tribunal can ask either of the two commissioners to give it such assistance as it may need. I hope that that is reassuring to the noble Lord and that he will be able to withdraw Amendment No. 93A.
Amendment No. 93B requires the Secretary of State to consult the Intelligence and Security Committee before providing the interception commissioner with staff. He is of course already obliged to consult the commissioner himself, who is free to make his requirements known. It goes without saying that governments of all hues have always listened very carefully to the interception commissioner across a whole range of issues on which he has felt it appropriate to express his views, including the question of resources which should put at his disposal. That practice will continue.
The Intelligence and Security Committee has an important function, which is set out in Section 10 of the Intelligence Services Act 1994. It is to examine the expenditure, administration and policy of the intelligence agencies. We do not believe that commenting on the resources available to the interception commissioner is a proper function for the committee. The relevant pieces of legislation have always drawn a careful distinction between those areas for which the Secretary of State, the commissioner and the committee are respectively accountable. The commissioner must be consulted on the staff to be put at his disposal and we shall listen.
Amendment No. 93C seeks reassurance that the interception commissioner will be provided with the necessary facilities with which to do his job. I hope that I can give the House that necessary reassurance.
Amendment No. 16, which we moved earlier, demonstrates the Government's commitment to the policy that any interception capability developed in obedience to a notice under Clause 12 of the Bill should provide the commissioner with the wherewithal to fulfil his duties in the face of rapid technological development. Further reassurance is provided by Clause 56(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.
The requirement to provide information 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. That might involve briefing sessions or visits to the
commissioner's office by communications engineers and IT specialists. Moreover, the practice of successive interception commissioners has been to make regular visits to the intercepting agencies and also to inspect the warrant-issuing units of the four central government departments. The noble and learned Lord, Lord Nolan, noted in his report for the year 1995 that he had extended his study to include the safeguards operated by the public telecommunications operators.It has always been the Government's practice to provide the commissioner and his staff with the necessary office accommodation and equipment to do their job properly and effectively. This practice will continue under the new regime. And, to provide further reassurance, we intend to spell out in the code of practice for Part I what the implications of Clause 56(1) shall be for the intercepting agencies.
During the Committee debate on this issue, the suggestion was made that the amendment provided a more objective test than the wording of the Bill. Indeed, the noble Lord, Lord Phillips, used that expression today. The commissioner should be provided with such resources as may be requisite, rather than such as the Secretary of State considers necessary. There is not much between us.
The fact of the matter is that the Secretary of State will consult the commissioner about the resources he needs. The commissioner will express his views. The Secretary of State will take account of those views, gain the approval of the Treasury as to numbers of staff and then provide the commissioner with the staff he requires to carry out his functions effectively. The Government have already given some thought to the greater resources which will be necessary to equip the commissioner in the light of his extra duties under the Bill. This work will continue until we are sure, in consultation with the commissioner, that he has what he needs to do the job.
Finally, I want to add that under Clause 56(4) the interception commissioner is required to make an annual report to the Prime Minister, which is then laid before Parliament. Were the commissioner to be unhappy in any way with the resources he had been given, he would be free to raise this with the Prime Minister, or indeed in his report. The House can be sure that he would.
I hope that the spirit with which I have tried to reply to the noble Lord's amendment shows that we share his concerns but that we believe his amendment is not necessary.
Amendment No. 93D would provide the interception commissioner with the power to report ad hoc to the Prime Minister about any matter. Subsections (2), (3) and (4) of Clause 56 set out those reports which the commissioner is obliged to make. They are: any contravention of the provisions of this Bill which falls within his oversight and on which the tribunal has not already made a report; any inadequacy in the arrangements made under Clauses 14 and 53; and an annual report on the carrying out of all of his functions.
In addition, the commissioner has meetings with the Home Secretary and other Secretaries of State responsible for signing interception warrants and visits the intercepting agencies on a regular basis. In combination, these powers and practices together ensure that the commissioner has regular contact with all those involved in the regime and the ability to make his view known at the highest level. What I am about to say is important. At any stage where he discovers a contravention of the Act he may make a report to the Prime Minister.
We do not therefore believe that any further report-making power is necessary and hope that the noble Lord will not move his amendment.
I turn to Amendments Nos. 96A and 96B. Amendment No. 96A seeks to ensure that an organisation or association of persons may complain to the tribunal and that access is not restricted merely to individual persons. I can confirm that that is already the case, by virtue of the definition of "person" contained in Clause 79. That clause provides that the word "person" includes any organisation and any association or combination of persons, wherever in the Bill the word appears.
As regards Amendment No. 96B, we accept that the omission from tribunal jurisdiction is that complaints about Section 47 notices, if given by the Secretary of State, can go to the tribunal but others cannot. That appears to be an omission from Clause 63(8)(d) and (e). We will consider and endeavour to get that put right by Third Reading.
I hope that that promise enables the noble Lord not to move Amendment No. 96B.
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