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The Earl of Northesk: I am grateful for the noble Lord's comments. I must confess that I am somewhat surprised by them. The thought strikes me that this is an issue in which Parliament should have an interest. Rhetorically—no more than that—I ask whether it is appropriate that potential conflicts in law should be, as the noble Lord suggests—at least I believe that that is what he suggests—resolved in a code of practice by negotiation between the interested parties rather than in primary legislation. That strikes me as a somewhat extraordinary proposition.

That said, the noble Lord gave a number of very reasonable reassurances as to liability and whether or not there is a conflict here between the Data Protection Act and what is proposed on the face of the Bill. I am bound to say to the noble Lord that, whatever assurance he gives, there is a conflicting view on that issue. I am also bound to say to the noble Lord that that conflicting view needs to be resolved one way or

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another by Parliament. I shall not press the matter at this late hour, but I repeat that the noble Lord should be under absolutely no illusions. This is a very serious issue for the industry. If he sincerely believes that without resolution on the face of the Bill he will get a voluntary code, then I am sorry but he is living in Cloud-cuckoo-land.

Lord Rooker: I have not read all the correspondence. Have any of the service providers expressed the matter in such bold terms in writing to the Home Office? They have been in consultation; they have been in correspondence; and they have received assurances in writing from officials as well as at meetings. Are any service providers so concerned about this matter that they take that view? Have they put their demands in writing, saying that they will not co-operate with the voluntary code unless that is the case? I have no evidence to that effect. It may be so. I simply ask the question.

The Earl of Northesk: I merely repeat the point, which has been confirmed in writing to me, that communications service providers hold to the position that their legal advice is that the Bill as it stands exposes them to huge legal liabilities.

Lord Rooker: I do not want to negotiate over the Dispatch Box, but if providers have received such advice, I hope that they will put it to the Home Office when we are negotiating, discussing and consulting on the code of practice. It is no use submitting that information to noble Lords without sharing it with officials. That is said by way of an offer, not a complaint. That is what consultation is all about.

The Earl of Northesk: I note the Minister's comment and suspect that I should not be drawn any further. I repeat his point that we should not negotiate such issues across the Floor of the Committee. The fundamental issue remains that legal certainty should be on the face of the Bill because Parliament should have an interest. The matter should be determined by primary legislation.

Lord Elton: Perhaps my noble friend will allow me to go further. Surely it would not be possible to provide immunity through negotiation because immunity must be provided by statute. That is why the matter needs to be determined before the negotiations, not after.

The Earl of Northesk: I am grateful for my noble friend's intervention. He makes the point far more eloquently. I will not divide the Committee, but I am distinctly unhappy with the Minister's response. He may be assured that we will return to the point at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 172 and 172A not moved.]

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The Earl of Northesk moved Amendment No. 172B:

    Page 62, line 34, at end insert—

X( ) It shall be the duty of the Secretary of State to ensure that a code of practice or agreement issued under this section does not place an unreasonable burden on communications providers.
( ) A code of practice or agreement shall not expect or require a communications provider to retain any class of data that is not obtained or held by him during the normal course of his business."

The noble Earl said: With this, I shall speak also to Amendments No. 176A and 176B. Amendment No. 172B requires that codes of practice and agreements should not place an unreasonable burden on communications service providers and will not require them to retain data that are not part of the providers' normal business.

The first part of the amendment mirrors similar provisions on unreasonableness in RIPA, thereby allowing for consistency between the two. The second part reflects, as I understand it, assurances given by the Secretary of State.

Amendment No. 176A seeks to deal with a more awkward problem. The Bill allows the Secretary of State to make different directions for different communications service providers. No doubt that is to accommodate the variety of business models that operate in the sector—telephony, Internet and so on—and to allow flexibility. It could also give rise to inequities, so the amendment would place an obligation on the Secretary of State to ensure that a direction does not impose requirements on one communications provider that are significantly different from those imposed on another; and that requirements are reasonable and non-discriminatory.

Coincidentally, as with Amendment No. 172B, Amendment No. 176A reinforces the Secretary of State's commitment that communications providers will not be required to retain data that they do not process or keep in the normal course of business.

Amendment No. 176B also mirrors the wording of Section 11(5) of RIPA, so establishing the principle of reasonableness that is such a key feature of that Act, as well as ensuring consistency. The amendment minimises the risk of arbitrary directions and ensures that a direction takes full account of technical feasibility and other relevant factors. I beg to move.

Lord Phillips of Sudbury: I support this group of amendments in general but query the point about discriminating between one communications provider and another. If, as only the Government believe, the Bill and these clauses were to be confined to terrorists or terrorist-related circumstances, it would be perfectly rational to allow the Secretary of State to make directions in respect of a particular group of telecommunications providers or a particular telecommunications provider. That would be a focused, specific intervention.

Even if this is forced upon the Government in a vote, I hope that we will return to a Bill based upon the kind of emergency that the measure was purported to deter.

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9.30 p.m.

Viscount Goschen: The sentiments that have led my noble friend to put down these amendments are important. The Committee will recall when we were considering the RIP Bill, there were essentially three principal concerns: first, the civil rights argument; secondly, whether the provisions would be effective; and, thirdly, whether UK-based communications providers would be disadvantaged compared to their international counterparts. Communications providers can move their services. The industry is extremely difficult to regulate. I hope the Minister will not maintain that it is only a voluntary code and so, if it is unreasonable, the industry will not have to comply with it. We are talking about a voluntary code but a voluntary code must work and be drafted in such a way that everyone can sign up and adhere to it.

What discussions have taken place with our international partners to try to align the regulations in the RIP Act and the regulations in the Bill with those of our European partners and the US? During the debates on the RIP Bill one of the principal arguments was that if one had differing levels of regulation, service providers could move their services to the most friendly jurisdiction. It is important for the workings of this part of the Bill, as well as for the RIP Act as a whole, that we do see eye-to-eye with our partner countries in the fight against terrorism. I should be obliged if the noble Lord could answer those points.

Lord Rooker: If I have the information and am able to give it, then I shall be happy to do so. I shall take advice on what international discussions have taken place. There have been many discussions since 11th September but on the specifics of the question, if I am able to get the information, I shall certainly give it to the noble Viscount or write to him.

The noble Viscount was quite right in forecasting one point I wanted to make. If the code is not reasonable, the industry will not sign up to it. Why should it? It makes no sense. Were I in that industry and I received good advice that the code was unreasonable, I would not sign up. We cannot conceive of how we could get agreement to a voluntary code if the industry believed it to be unreasonable.

Lord Elton: The main point is in the next clause. If it does not get the voluntary one, it will have to lump the compulsory one.

Lord Phillips of Sudbury: Industry will want to co-operate with the Government. The Minister should have no doubt about that. Everyone in your Lordships' House would want to see a voluntary code. But there is a central defect in terms of the scope of Clause 102. Industry is unlikely to refuse to play ball. That is not the nature of reality. It is going to negotiate and come to some sort of arrangement with the Government. However, that does not get us away from the defects to which the amendment relates.

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