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The Earl of Northesk: My Lords, I thank the Minister for honouring the commitment he gave the House at Report stage. It will come as no surprise, I am sure, that we on these Benches support the amendments.
Of course I bow to the superior expertise of the noble Lord, Lord Lester, but it may be that subjecting the code of practice on data retention to affirmative resolution will offer a form of safeguard that it will operate within existing human rights and data protection legislation. I am grateful to the Minister for having so readily taken on board the anxiety of many on this point in Committee.
In this context it is worth repeating that the amendments address specific concerns raised by the Joint Committee on Human Rights and the Delegated Powers and Deregulation Committee. I hope that the Minister will forgive me if I take this opportunity to seek clarification of one or two points.
First, the tail end of subsection (1) of the new clause states:
It may be carping, but I also note that in the case of a revised code the Secretary of State's requirement to consult is watered down to exclude any CSPs who would be unaffected. I can understand the motivation behind this, particularly from the perspectives of flexibility and speed, but the initial code implies consultation with all CSPs whether or not they would be affected. Why this discrepancy?
I move to a more general point which I should perhaps have emphasised more forcefully before now. What is the Government's best estimate of the gestation period of the code of practice? I may have this wrong but my understanding is that the Information Commissioner has been working for over a year now on the code of practice arising out of the Lawful Business Practice Regulations that deal with e-mail monitoring in the workplace. Is it to be expected that the data retention code will experience a similar timescale in terms of preparation?
I am bound to make the point that if this is indeed the case the sense of urgency that the Minister insists should be attached to Part II is somewhat undermined. I look forward to the Minister's replies on these points. In the mean time, we on these Benches welcome these amendments.
Lord Rooker: My Lords, I apologise to the noble Lord, Lord Kingsland, for this, but I do not recognise words that he quoted, either from the Bill as reprinted overnight or, indeed, Amendment No. 4. I will take advice on that, but he used words that I cannot locate. I accept that he understands that we have gone a considerable distance.
The right reverend Prelate asks me right at the end of our proceedings whether there is anything hidden in this government concession. That is a word I have tried to avoid throughout the past eight days because it is used in a pejorative way and suggests that I am covering something up and trying to slip something through. The answer is no, we are not. This is wholly positive. The Home Secretary has willingly embraced the discussions in this House by noble Lords, lawyers and all, and we have listened. In this case what we have done is to re-write Clause 102. We have taken a chunk out of Clause 102(3), (4) and (5), and we have set up a different procedure. That is why we have entitled it XProcedures for the code of practice". Where those are revised and re-issued they will go through the same process.
I say to the noble Lord, Lord Lester, that towards the end of his short speech he used words to suggest that if the code were written to conform to data protection principles and human rights legislation then judges would have some precision. That is exactly what we propose to do. I take his point about the annoyance that government Bills do not reflect the language of the human rights legislation, but we have said that we will draw up the code of practice so that it conforms to data protection principles and human rights legislation. If we did not do that, under a voluntary arrangement someone would be for the high jump because there would be complaints, I am absolutely certain.
I repeat that we want to work voluntarily with industry and the Information Commissioner and everybody involved. We do not want to breach privacy. We are not looking to intrude on people's conversations; we do not want records kept of what they say on the telephone. That is not what we are about. We are not asking data providers to collect new information beyond that which they already collect, so there is no new burden. What we are asking them to do is to save it for longer. The code of practice will deal with that and make it accessible.
If there are points made by the noble Lord, Lord Kingsland, which I have misunderstood I will happily drop him a note, but I am the good guy here on this amendment, and that is the way I should like to leave it.
Lord Lester of Herne Hill: My Lords, not only is the Minister the good guy on this amendment, but he has just demonstrated that in all respects he is also a first-class engineer. My understanding of what he has just said means that he is giving effect to the recommendation made by the Joint Committee on Human Rights; that is, that as far as is practicable, on its face the code will give effect to the standards set out in Article 8 of the European Convention on Human Rights and to the data protection principles. That is good news because it will cut down litigation and overloading of the courts. It will also ensure that Parliament does its job properly when it considers the measure using the affirmative procedure. We shall be able to bless it. The Minister's remarks have clinched it.
We all believe that Ministers will do what they say, but the fact that the affirmative resolution procedure is in place at the end of the process willto use the words of Archbishop William Temple, spoken in another contextXjust clinch it".
Lord McNally: My Lords, while the Minister takes a moment to bask in the approval of my noble friend Lord Lester, could I ask him to clarify a point made by the noble Earl, Lord Northesk, concerning the period of consultation? The period of consultation for a number of codes of conduct has been extremely long. A conflict could arise between the sense of urgency attached to the legislation before noble Lords and the need to consult. Will any guillotine procedures be introduced to the consultation process?
Lord Rooker: My Lords, first I should apologise to the noble Earl, Lord Northesk, for addressing him incorrectly. This point was raised in Committee and I remember saying that the Home Office has, in a sense, moved up a gear. We do not want lengthy delays on this. It is expectedthe process will be really rapidthat it will take around six months to consult and agree the code.
It is always best to drive matters forward from the Dispatch Box. Over the past four years I have discovered that people take account of statements made from this position. I would expect to be able to bring before the House the code for consideration under the affirmative procedure before the Summer Recess next year. I should add that we do not plan for the Recess to take place during the first six months of 2002, but I am seeking to add a little finesse to the phrase Xabout six months". When I see a term such as Xabout six months", that period could stretch to seven or eight months. I shall stand at this Dispatch Box and move that the code be taken through the affirmative resolution procedure for approval before the Summer Recess. For my part and acknowledging my responsibilities in this matter, I shall try to drive the issue forward.
On Question, amendment agreed to.
Lord Rooker moved Amendments Nos. 11 to 13:
XPROCEDURE FOR CODES OF PRACTICE
(1) Before issuing the code of practice under section 102 the Secretary of State shall
(a) prepare and publish a draft of the code; and
(b) consider any representations made to him about the draft; and the Secretary of State may incorporate in the code finally issued any modifications made by him to the draft after its publication.
(2) Before publishing a draft of the code the Secretary of State shall consult with
(a) the Information Commissioner; and
(b) the communications providers to whom the code will apply.
(3) The Secretary of State may discharge his duty under subsection (2) to consult with any communications providers by consulting with a person who appears to him to represent those providers.
(4) The Secretary of State shall lay before Parliament the draft code of practice under section 102 that is prepared and published by him under this section.
(5) The code of practice issued by the Secretary of State under section 102 shall not be brought into force except in accordance with an order made by the Secretary of State by statutory instrument.
(6) An order under subsection (5) may contain such transitional provisions and savings as appear to the Secretary of State to be necessary or expedient in connection with the coming into force of the code to which the order relates.
(7) The Secretary of State shall not make an order under this section unless a draft of the order has been laid before Parliament and approved by resolution of each House.
(8) The Secretary of State may from time to time
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