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Lord Goldsmith: My Lords, perhaps the noble Baroness is not aware that under the Act, we cannot put forward a mandatory scheme until a voluntary scheme has been tried.

Baroness Blatch: My Lords, I shall come to that point. The Government have had two years in which to put a voluntary scheme in place, to make a judgment about whether it works and to move on to a compulsory scheme. They have chosen not to use the two years that Parliament gave to them. If the Government put a voluntary scheme into place now and if, in 18 months' to two years' time, they believe that the case is made for a compulsory scheme, that is such an important issue that the Government should come back to Parliament. There are two reasons for that; first, because it is such a fundamental issue; secondly, because the issue rode on the back of an emergency anti-terrorism Bill. It spent one day in the Commons and was shunted through this House under the emergency procedures. There has not been a full discussion in either House on the ramifications of the measures.

If the Government wish to proceed to a voluntary scheme, we will co-operate in making sure that that has full parliamentary time.

Lord Richard: My Lords, when the noble Baroness spoke earlier, I tried to ask her a question before she sat down. If the noble Baroness comes to it, perhaps she will allow me to ask a question on it after she has spoken.

4.45 p.m.

Baroness Blatch: My Lords, that will be my final point. The noble and learned Lord the Attorney-General introduced the debate on the basis that RIPA does not grant any new powers. He cannot claim on the one hand that it does not grant any new powers, while claiming on the other that it does. If the orders are not enacted, the sky will not fall in and the Government will have an opportunity to get the orders right.

Finally, I shall address the specific point of the noble Lord, Lord Richard. First, the power to divide was exercised as recently as 2000 on the matter of a free leaflet that was being sent to all voters in the London mayoral elections. Although the exercise to vote down an order is a rare occurrence, this House affirmed in 1994 its unfettered freedom to vote on any subordinate legislation submitted for its consideration. I shall add my own words to that. If a question comes before Parliament, whether it be this House or another place, to which the answer is yes or no, with no powers to amend, we must have the freedom to say yes or no.

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I agree that that freedom should be extremely rarely used and that the reasons for it should be carefully thought through, but the whole area of invasion of privacy, of getting the balance right between detecting fraudulent and terrorist activity, and of the freedom of the individual is fundamental to the people of this country. That is why it is an important issue.

Lord Richard: My Lords, I am bound to tell the noble Baroness that her argument is casuistic verging on pedantic. We had a clear convention in this House when I was Leader of the Opposition; namely, that the Opposition did not vote on statutory instruments. That was a firm convention. It was urged on me when I was Leader of the Opposition by, among others, the noble Baroness herself. It now seems that we are moving into a new doctrine for a new era, where if the Opposition take the view that an issue is so fundamental, they will vote against a statutory instrument. That is wrong and the Opposition should not do it.

Lord Carter: My Lords, perhaps I may add my voice to that of my noble friend Lord Richard. He is absolutely right. The noble Baroness is not out of order if she divides the House. As she said, a Motion tabled in 1994 by the noble and learned Lord, Lord Simon of Glaisdale, showed that the House has the power to divide on orders if it so wishes. It was used once, in 1968, under a Labour government; it was not used at all during the 19 years when we were in Opposition; it was used once during the five years when I was Chief Whip—on the GLA Bill, when the Opposition also divided on the negative instrument for good measure. I accept that it is not out of order, but there has been a long-standing convention that this House does not divide on orders. They cannot be brought back to the House and they are not subject to the Parliament Act. I have no doubt that they will fall in this Session if the noble Baroness divides the House. It is her choice. Her Back-Benchers divided the House last night on the cannabis order and her Front Bench abstained. Only a few weeks ago, I was on the Woolsack when she spoke to an education order. She had put down a Motion to decline to approve the order, but said that she would not change the habit of a lifetime and divide the House. The House should be aware of what we are embarking on. Last night, there was a Division on an order that the Government won, but that changed the convention. If the Opposition choose now to go down that road, they should know where they are going. At the moment, we are the Government; one day, no doubt, we will be the Opposition. We have long memories.

The Earl of Onslow: My Lords, I have been listening to the debate and I understood the noble Lord, Lord Carter, to say that one day our party will be the Government and his will be the Opposition and we are doing something silly. I hope then he will divide the

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House because there seems no point in the convention that an order cannot be amended and we can never do anything about. We might as well let everything go through completely and not allow any change to be made.

Lord Richard: My Lords, the noble Earl must realise that that has been the state of affairs for a very long time. For 19 years when his party was in Government that was the state of affairs that this House accepted and the Labour Party lived up to. Now we find that because the Conservative Party does not like a particular resolution they want to divide the House against it. It is a denial of the conventions of this House and I am bound to say that I feel very strongly about it.

Lord Roper: My Lords, it is worth remembering that we are discussing a group of amendments and that the majority of them are non-fatal. The amendment we are now discussing is fatal, but that is not the case with a number of others, which I trust we shall reach shortly.

Earl Russell: My Lords, as one who took part in the debate on 20th October 1994, perhaps I may point out that there was a general agreement in the House that there was in normal circumstances a convention that one did not divide on fatal Motions. However, that convention was dependent on another convention; that was the exercise of restraint by the Government in the importance of the matters they put into fatal Motions. If the noble Lord would care to read the debate, he will find that recollection borne out. That is the point at issue.

Lord Richard: My Lords, I am not sure whether that remark was addressed to me, but if it was perhaps I may reply. When I was leading the Opposition, there were many occasions on which I took the view that what the then government were doing was absolutely appalling and that they had done it without sufficient consultation and discussion. I felt strongly that they should not do it. However, if a proposal came in front of the House as a statutory instrument, I did what all in opposition have done up until now; that is, I held my nose and did not vote against it.

Earl Russell: My Lords, the patience of opposition is very great but it is not total.

Baroness Blatch: My Lords, on the particular amendment before us, I was not influenced one jot by what has just been said. However, as I said in my first speech today, I have been influenced by my discussions with the noble Viscount, Lord Colville of Culross, with those in the Home Office and other colleagues. I shall not move the first fatal amendment.

[Amendment not moved.]

On Question, Motion agreed to.

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Regulation of Investigatory Powers (Communications Data) Order 2003

4.52 p.m.

Lord Goldsmith rose to move, That the draft order laid before the House on 11th September be approved [28th Report from the Joint Committee].

The noble and learned Lord said: My Lords, I beg to move.

Moved, That the draft order laid before the House on 11th September be approved [28th Report from the Joint Committee].—(Lord Goldsmith.)

Baroness Blatch had given notice of her intention to move, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House declines to approve the draft order laid before the House on 11th September".

The noble Baroness said: My Lords, I shall not move the amendment.

[Amendment not moved.]

Lord Lester of Herne Hill had given notice of his intention to move, as an amendment to the Motion, at end to insert "and this House calls upon Her Majesty's Government to lay a new draft order containing effective safeguards to ensure that communications data retained pursuant to the Anti-terrorism, Crime and Security Act 2001 will not become liable to be obtained or disclosed under the Regulation of Investigatory Powers Act 2000 unless the criteria for obtaining or disclosing communications data under the 2000 Act are met in relation to those data in accordance with the fundamental right to personal privacy".

The noble Lord said: My Lords, I shall not move the amendment.

[Amendment not moved.]

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