Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Bach: My Lords, I do not know the answer to the noble Lord's question. Even if I did, I am not sure

19 Jul 2000 : Column 1032

that I would think it proper to answer his question today. These are matters of important concern. It is necessary to be careful in what one says from this Dispatch Box and anywhere in this House on matters of this kind. If the noble Lord would like an answer to his question, I shall be happy to give it at some future time.

Lord Chalfont: My Lords, there is nothing classified about this matter. It has all been in the public domain and public print. I am not sure why the question cannot be answered.

Lord Bach: My Lords, I am sure the noble Lord is right because he is an acknowledged expert in this field, as I am not. I shall be happy to answer him when I know the answer myself.

Lord Nolan: My Lords, perhaps I may say from my experience as commissioner that I see nothing dangerous or objectionable in the proposed new clause. The degree of coverage of external communications appears to be no wider than it has ever been, but more precisely spelt out. The effect of the amendment proposed by the noble Lords, Lord McNally and Lord Phillips, would unduly narrow the scope of what can be intercepted and would, indeed, be against the public interest.

Lord Phillips of Sudbury: My Lords, I am grateful for the Minister's comments. His practical illustration was easier to follow than some of the explanations given hitherto and I suspect that it shed more light on one aspect of the Bill. That is not a criticism, but I wonder whether when we are faced with such difficult and dense Bills it would help those on non-government Benches to have worked-through illustrations. They would make the whole task more approachable.

I am grateful for the Minister's explanation. I shall read Hansard carefully because I am not sure that I picked up every point that was made. The Minister did not refer to my final point about the practical illogicality of not reading and listening in order to sort the sheep from the goats and the prospect of an additional statutory protocol agreed between the Government and the interception of communications commissioner in order to verify this aspect of the workings of the Bill. It is important and we all understand that someone must look at the material in order to decide what is internal and what is external and must then forget all that is internal. Could that form a clear procedure? That would give great reassurance beyond these walls. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 [Lawful acquisition and disclosure of communications data]:

Lord Bassam of Brighton moved Amendment No. 12:

    Page 26, line 12, leave out subsections (8) and (9).

On Question, amendment agreed to.

19 Jul 2000 : Column 1033

Clause 22 [Obtaining and disclosing communications data]:

Lord Lucas moved Amendment No. 13:

    Page 27, line 9, at end insert-

("(5A) Where the communications data in whole or in part comprises data as defined in section 21(4)(a), the designated person shall first obtain a certificate from-
(a) any judge of the Crown Court or the High Court of Justiciary;
(b) any sheriff;
(c) any justice of the peace;
(d) any resident magistrate in Northern Ireland; or
(e) any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge of the Crown Court or of a justice of the peace,
stating that access to the communications data is necessary and proportionate having regard to the sworn statement of the designated person as to the circumstances of the matter.
(5B) If the designated person reasonably believes that the special circumstances of the case are such that obtaining a certificate under subsection (5A) would cause an unacceptable delay to the issuing of a notice or authorisation under this section, the designated person may issue such notice or authorisation without obtaining a certificate but must then make a prompt report to the Interception of Communications Commissioner as to the circumstances of the matter.").

The noble Lord said: My Lords, the main purpose of Amendment No. 13 is to discuss again the level of authorisation appropriate to access communications data. I do not lay any store by the drafting of the amendment--I am sure that the Minister will be able to have fun with it, but that is not the purpose. If we manage to convince the Government that something must be done, I am sure that he will be able to produce a better version than mine.

I should like the Minister to cover two issues in his reply. First, I should like to be sure that we are ad idem on the practical extent of communications data, in particular traffic data. Secondly, I should like to understand what practical safeguards exist, not in a particular instance but over the long term, for ensuring that the wide range of the data is not misused in practice by the law enforcement authorities.

Perhaps like the noble Lord, Lord Bach, I may give an example. Let us examine the putative investigation of the recent leaks from No. 10. I understand that under the definition of "communications data", and under the power which the Bill gives to the authorities, a police superintendent could decide that he wanted to acquire a list of telephone numbers used by everyone in receipt of the memoranda and associated with the newspaper which printed them. On the basis of the communications data, consisting of the telephone bill or the equivalent used in tracking e-mail data, he could accurately match up the two sets of people to see where there had been communication between them. He could not tell the content of the communication but he could tell that communication had occurred.

Using the location data which will be inherent in the next generation of mobile telephones, he could track anyone he suspected of colluding with the other party. Provided that the two parties had their mobile telephones turned on, he could track them in real time, watch where they went and, if they came within 10

19 Jul 2000 : Column 1034

yards of each other, he could know how long they spent there. That is a complete set of data for cracking a crime.

I suspect that the level of authorisation required for delving so far into people's lives should not be left with a police superintendent. As regards, in particular, location data and the details of communications, the authorisation should come from someone at a higher level. We are aware of the use made of telephone bills, but they should not be used casually in respect of minor crime or suspicion. We used to think of them as being used in connection with murder and serious crimes, but we must be careful about the ability we give the average policeman to pry into individual lives. The relationship between the police and their community is important. We must feel that they are, if not our servants, co-operating with us and working on a level with us. If we give them powers over the intimacies of our daily lives and they use them in a way that is uncomfortable to us, there will rapidly be a breakdown in the relationship between the Government and the police. We must be careful about that.

That brings me to the second issue which I hope the Minister will address. How will we become aware of abuses of the system, if they exist? We are all aware that there are abuses of the current system and the Bill is intended to deal with them. It is said that individual officers have used their ability to pick up people's telephone bills and see who has been telephoning whom in order to keep track of their girlfriends. There is nothing in the current system to stop that.

How shall we become aware of abuses if they happen? Who will be looking after the system for us and who will raise their hands and say, "No, this is happening too much and in the wrong way and we ought to do something about it"? I look forward to illumination from the Minister. I beg to move.

4.15 p.m.

Lord Bassam of Brighton: My Lords, the noble Lord has given us a timely reminder of the need to police by consent. Those are wise words. Given the intrusive nature of surveillance, they are well chosen words.

I am sure that the House is aware that the noble Lord and I discussed an almost identical amendment on Report. However, this amendment is different in that the noble Lord seeks to limit his request for judicial authorisation to subsection (4)(a) rather than to paragraphs (a) and (b) of subsection (4), as previously requested. Clearly, on Report my powers of persuasion were limited and insufficient for the task set by the noble Lord. I did not then entirely satisfy or meet the intention behind the amendment, but I trust that I shall have more success today.

At that stage, the noble Lord's main concern appeared to lie with the level of authorisation and I shall try to address that issue particularly as it pertains to the more intrusive communications data. As I explained, under the non-statutory arrangements agreed between the law enforcement agencies and the telecommunications industry, access to more intrusive types of communications data is authorised at a more

19 Jul 2000 : Column 1035

senior level within the relevant agency. For example, the most intrusive communications data must be authorised by an assistant chief constable--a very senior level in the police service. More importantly, I can again assure the noble Lord that we intend to insist on higher level authorisations for intrusive data in an order which we shall make under Clause 25(3) and which will be set out in the codes of practice.

It should also be remembered that the Bill introduces the necessary and proportionate requirements, along with the new statutory provisions which provide independent oversight by the interception commissioner. I hope that that oversight by the commissioner's office in the annual report, where the audit team will examine the use made of the power, will offer the noble Lord a degree of comfort with regard to the accountability process. The scope for abuse, which, rightly I believe, is behind the amendment, is the issue on which we need to satisfy not only the noble Lord but others.

I accept that it is not only the level of authorisation which the noble Lord is concerned about; he is also concerned about what that higher level of authorisation should be. However, I am not entirely persuaded of the necessity of calling for a higher level of judicial authorisation. We suggest that access to communications data, even at the top end of the scale, is not more intrusive than directed surveillance--a point that I made before--or the use of covert human intelligence sources as set out in Part II of the Bill.

Quite rightly in our view, those Part II provisions have been approved by both Houses of Parliament without the introduction of judicial authorisation for that type of activity. Instead, the Bill provides for directed surveillance or the use of covert sources of intelligence to be authorised at a specified level within a designated public authority. I would argue that accessing communications data is comparable. Therefore, I see no strong reason why the internal authorisation procedures for accessing them, with the restrictions and oversight provisions that we have already set out, should be any different.

We both agree that there should be different levels of authorisation for the different levels of communications data requested. I believe that we differ only on whether to involve the judiciary in the authorisation procedure.

I hope that I have provided sufficient reasons as to why the Government are not persuaded that it is necessary to go down this route. I believe that the accountability provided by the commissioner's office, the level of authorisation and the seriousness with which we view it, and the important tests of reasonableness and proportionality should offer sufficient satisfaction and confidence in this particular part of the regime. I trust that on the basis of what I have said, the noble Lord will feel able to withdraw his amendment.

19 Jul 2000 : Column 1036

Next Section Back to Table of Contents Lords Hansard Home Page