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Lord Bach: I have already explained to the Committee the purpose behind Clause 98. It permits the Ministry of Defence Police to act outside their normal jurisdiction in certain defined, limited circumstances. The Committee knows well—some Members more than others—the history of the Bill discussed before the general election and will know of the existing authority that the Ministry of Defence Police have under the 1987 Act to exercise police powers outside the defence estate at the request of a Home Department police officer provided it is in the vicinity of the defence property. I do not know whether that right is being objected to.

I take the point made by the noble Lord, Lord Wallace, that it is an issue that he has raised many times over the years. We believe that for the situation in which we find ourselves, which is likely to last, it is important to make these changes now. We reject the suggestion of the noble Earl, Lord Onslow, that all this is completely irrelevant and has nothing to do with what happened before or after 11th September. We do not believe that. We think that it is time that we got it together to defend ourselves in the best possible way against terrorists and others because that is what the public expects of us.

It is in that spirit that we bring the clause to the Committee. We believe that the limited nature of what we are suggesting and the absurdities that the proposed changes would represent, as discussed at length on the previous group of amendments, show that it is a necessary clause to the Bill. It is a sensible clarification and extension of the powers of the MoD Police to enable them to do the job that they have been set and to allow further co-operation between police forces. I repeat, and make no apology for doing so, that the clause meets the expectations of the public.

These powers are especially important because of the heightened terrorist threat when defence property—again I am repeating myself—could so

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easily be a terrorist target. It is right to scrutinise and consider these clauses carefully, which is what is happening. The easy historical criticisms of the Ministry of Defence Police seem to be completely and obviously misplaced. The MoD Police are subject to the Police Complaints Authority in respect of complaints by virtue of Section 96 of the Police and Criminal Evidence Act. That has been the case for a long time.

We are considering the issue of police committee membership. Members of the Committee will know that we have added three independent members to the committee and we are looking to see whether more needs to be done. It has been suggested that meetings of the police committee should be held in public. The chief constable has said that he would welcome that proposal in the light of his experience in the West Yorkshire Police. We are not determined that the structures of the Ministry of Defence Police should necessarily remain the same. Things are moving along.

I return to the argument that for the circumstances in which we find ourselves Clause 98 is a sensible and limited response so that the Ministry of Defence Police can carry out the functions that they are meant to do. I hope that Clause 98 will stand part.

Lord Wallace of Saltaire: The Minister has failed to persuade us that Clauses 98 and 99 are a necessary response to terrorism. I welcome his suggestion that things are moving, but I remind him that all is still not well with the Ministry of Defence Police. A number of inquires are under way and there are unresolved complaints that leave big questions as to whether or not they have the same standards as a civilian force.

Of course, there are problems with the protection of defence property, which is the fundamental role of the Ministry of Defence Police. We should also remember that defence property can be sensitive in a host of ways if we come back to the question of the breaking of the ABM treaty and the use of Fylingdales in support of a missile defence system that is owned and operated on behalf of the United States. We shall have a sensitive domestic debate in which the Ministry of Defence Police will again come into contact with civilians who are demonstrating, which has nothing to do with terrorism but which may have a great deal to do with sensitive issues of domestic politics and foreign policy.

I am very sympathetic to the points made by the noble Earl, Lord Onslow, that a police Bill would be a more appropriate place to discuss the relationship of these specialised forces. I was informed yesterday that there are nine such forces, although my informant could not name them all. He mentioned the Tilbury Docks Police, but the three that we have been discussing are the most important. In such a Bill, the role of these specialised forces could be discussed comparatively. The way in which they operate and their standards with regard to the protection of civil liberties and complaints procedures could be

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compared with the Home Department police forces and thoroughly debated.

As regards defence property, we are thoroughly in favour of the MoD Police being given all the necessary powers to protect it. As regards the relationship with people off a base or at some distance from a base, we then become involved with much more sensitive issues. We shall return to the matter on Thursday. We may well wish to press the point and remove the relevant clauses from the Bill. However, there is room for further discussion between now and then as regards what the Government might wish to concede. I refer to further movement in terms of responding to the extremely critical remarks in the report of the Joint Committee on Human Rights. However, for the moment, I withdraw my opposition to the clause.

Clause 98 agreed to.

Clause 99 agreed to.

Clause 100 [Jurisdiction of transport police]

[Amendments Nos. 162 and 163 not moved.]

Clause 100 agreed to.

Clause 101 agreed to.

[Amendment No. 163ZA not moved.]

Schedule 7 agreed to.

Clause 102 [Codes and agreements about the retention of communications data]:

The Earl of Northesk moved Amendment No. 163A:


    Page 62, line 7, leave out from XState" to Xa" and insert X, business representatives and the Information Commissioner shall jointly issue"

The noble Earl said: In moving Amendment No. 163A, I wish also to touch upon the other amendments in the group, Amendments Nos. 164, 164A,B,C and D, 165A, 174A and 176C. That said, I do not propose to weary the Committee by speaking to each and every amendment in turn. Some general observations should suffice to explain their thrust.

They pursue two discrete, albeit intertwined, strands of thought: first, that a broad range of business interests should be involved in the drafting of the code of practice and, secondly, that the Information Commissioner should also be involved. With respect to the first of those matters, I acknowledge and compliment the Government on the way in which representatives of communications service providers have been involved thus far in the development of the proposals on the face of the Bill. As the Minister will be aware, they still have outstanding concerns, not least that the current drafting lacks legal certainty in a number of key areas. None the less, their involvement to date has been helpful. It chimes with the Government's assurance that they would work with business to produce the code of practice.

That said, the Bill is potentially very wide in application. It extends, so far as I can tell, to any telecoms service provider, even those of private networks. For example, as I read the Bill, it is conceivable that the PDVN will fall within its scope and could be obliged to retain all its communications data. Perhaps the Minister can address that point in due course. It therefore makes sense that the

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Government should be subject to a statutory requirement to consult with a broad range of business interests in devising the code of practice, if only because—this is a particular concern of the CBI—a limitation of the scope of consultation could penalise existing business practices.

Moreover, pro-active involvement in the drafting of the code from a broad base should lessen the likelihood of non-compliance and thereby reduce the need for the Secretary of State to issue directions. Address of these concerns is embodied in a package of amendments comprising Amendments Nos. 163A, 164A, 165A and 173A, although, inevitably, there is some cross-referencing within these as to the potential role of the Information Commissioner.

Turning to that matter, I express considerable surprise that the Government have not included the Information Commissioner as an appropriate consultee. As the Committee will be aware, she has statutory responsibility for promoting and enforcing the Data Protection Act 1998 which, in turn, sets legally enforceable standards in relation to the processing of personal data. With that remit, it is incredible that the Government feel that she has no role to play in the drafting of the code. As she herself has observed in her memorandum on the Bill,


    XThe [Bill] provides for consultation with communications providers at the point of production or revision of a code. There are a number of other interested parties who should be involved in any consultation process. Given the Commissioner's role in enforcing legislation affecting the retention of data it is essential that she be included formally in the consultation process".

We on these Benches agree with that view.

In fact, there is an even more significant reason as to why the involvement of the Information Commissioner is so essential. Those Members of the Committee who have followed the development of data legislation will be only too well aware of what a tangled web it already is. The tensions that exist between the Data Protection and Regulation of Investigatory Powers Acts are legion and a dangerous minefield for the unwary. One need only contemplate the huge difficulties that the Information Commissioner has had in preparing a code of practice on the legal business practice regulations to get a flavour of how inconsistent the law is here. It would, in my view, be the height of lunacy to enact the provisions on the face of the Bill without ensuring that mechanisms are in place to ensure that the code of practice has at least some consistency with existing legislation. Such a task is within the Information Commissioner's remit and so it is essential that she be formally consulted about the code. At the very least that would undoubtedly improve its legal clarity and ensure that the interests of users are more formally taken into account. I beg to move.

6.15 p.m.

Lord Goodhart: Amendment No. 164, in the names of my noble friends and myself, is probably in the wrong place in the clause. Nevertheless, we strongly support the principle that the Information

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Commissioner should be actively involved in consultation and in the preparation of the code and we believe that that should be on the face of the Bill.


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