HL Deb 04 December 2001 vol 629 cc787-826

House again in Committee on Clause 102.

The Earl of Northesk moved Amendment No. 171A:

Page 62, line 26, at end insert— "( ) A code of practice or agreement under this section shall include clear guidance to communications providers as to—
  1. (a) what classes of data shall be retained, and
  2. (b) a maximum period for which data may be retained."

The noble Earl said: The Chamber is somewhat emptier than it was before dinner. I hope that the purpose of the amendment is unambiguous and uncontroversial. It is merely to ensure that codes of practice and agreements define precisely the classes of data to be retained and the maximum periods for which they should be retained. No doubt the Minister will be tempted to say that that is stating the obvious and of course those elements will be included, but I can see no difficulty in putting them on the face of the Bill for the avoidance of doubt.

Moreover, there is some merit in ensuring that the distinction between retained data and obtained data—about which we have had a fair amount of debate—is made a little more obvious and transparent in the Bill. The amendment would assist in that with its explicit references to retained data. That has the beneficial effect of making it clear that obtained data continue to be subject to existing provisions in the Regulation of Investigatory Powers Act. I beg to move.

Lord Phillips of Sudbury

I wholeheartedly endorse the amendment. I am not sure whether the wording makes it perfectly clear that the basis on which the data are retained shall be for ever labelled round the neck of that data. We want to avoid data being retained for one purpose and then being used under RIPA for another. However, we on these Benches support the broad purport of the amendment.

Lord Rooker

I apologise to the Committee for being a little late. The amendment would further define what provisions should be contained in the code of practice and agreements by stating explicitly that the code must give guidance on what types of data should be retained and for what period. I assure the noble Earl, as I have done previously, that the code of practice will contain a number of safeguards.

As I have already said, retention practices in line with the code will comply with Article 8 of the European Convention on Human Rights—the right to privacy—and with the data protection principles. To do so, retention must be on a clear legal basis that is foreseeable and accessible for a purpose permitted by the 1999 regulations and must strike a balance between the purpose for the retention and the rights of customers whose data are retained. There will be a clear maximum retention period.

On top of the safeguards suggested by the noble Earl, the code of practice will cover a number of other issues relative to the legal and practical aspects of retention but it would not be practical to put those on the face of the Bill. The code is intended to be technologically neutral so that it can keep up with developments in communications technology. That means that the detail of the exact types of data to be retained will not feature in the code but will be specified in the agreements negotiated with individual service providers.

We will consider subdividing the generic definitions into broad classes of data, such as subscriber information, location data and traffic data. We shall have discussions on that in the course of consultation.

In the light of that, I hope that the noble Earl will not seek to press his amendment. I repeat my apology for being slightly late.

The Earl of Northesk

I am grateful to the noble Lord, Lord Phillips, again for his support for the principle of the amendment and to the Minister for his explanation of the Government's position.

I was somewhat thrown by the Minister's observation that the intention is that the code of practice should be technologically neutral. That is a little odd. The voluntary code will be a by-product of this emergency legislation. That suggests that it should have an end-life. To require it to be technologically neutral for the period of the emergency seems to be stretching the point somewhat.

I heard the Minister's reassurance that the code would include a maximum period for which data are to be retained. However, his description of the classes of data appeared somewhat at variance with what he has previously said about the Government's intentions and the classes of data that they are interested in. Will the Minister clarify that point?

Lord Rooker

I would if I could. I do not think that I am contradicting what I said previously. I have pointed out that e-mail data are different from telephone data. In the past, I have talked about billing information—the addresses, telephone numbers, dates, times and duration of calls. It is no different from the broad classes of data, examples of which I have given. It is not prescriptive and will be developed during consultation. Subscriber information presumably deals with information relating to the subscriber—perhaps the number called from the subscriber's billing address and the traffic data, which is the duration of the call and the date.

The Earl of Northesk

I am grateful to the Minister for that clarification. I have to be content that the Minister is committed to ensuring that the code of practice will cover both classes of data and the maximum length of time for which it will be retained.

I shall repeat a point that I made in the context of the amendment that we debated before the dinner break. A voluntary code has been in the offing for a number of years, but no progress has been made on its fruition. That has concerned communication service providers, in particular. Part of the problem is that there has been little or no agreement on the parameters of the code. The purpose of the amendment was to facilitate that agreement. I should hope that the assurances given by the Minister will take the matter forward, but in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Northesk moved Amendment No. 171B:

Page 62, line 30, leave out subsection (7) and insert— "( ) Communications providers acting in conformity with the code of practice shall not be liable to any criminal or civil proceedings in which the question arises whether or not the retention of any communications data is justified on the grounds that a failure to retain the data would be likely to prejudice national security."

The noble Earl said: I shall also speak to Amendments Nos. 176F and 177D, which are grouped with Amendment No. 171B.

We return to the issue of how voluntary the code is. There is an argument in favour of creating appropriate conditions to encourage compliance with the code. If businesses are not exonerated from liability when acting in conformity with the code, in cases where the justification for data retention is challenged—I am certain that that could happen—there is little incentive for businesses to subscribe to the code.

At present the Bill presents businesses with a dual risk. If businesses choose to comply and retain communications data, they could be liable for the unfair processing and disclosure of the subject's data. They could be in breach of the first and the third data protection principles. The Information Commissioner has been unequivocal about her perception of that issue. On the other hand, although it is the intention that businesses will not be held liable for failing to comply—after all, the code is voluntary—the Bill reserves for the Secretary of State the power to make mandatory provisions in respect of data retention. That threat hangs over businesses. In an attempt to address these problems, the amendment makes it clear that if businesses comply with the code, no liability will arise.

Amendment No. 176F also proposes in a slightly different way that in order to provide legal certainty, a communications provider, acting in accordance with a direction properly given by the Secretary of State, may not be challenged under the Data Protection Act or any other enactment. The Secretary of State should provide a certificate to verify that a direction has been given. There is a precedent for that in Section 28 of the Data Protection Act. The amendment would simply bring legal certainty for the purposes of avoiding unnecessary legal action.

Amendment No. 177D is the most crucial in the group. I apologise if I take a little time to address it. As I have already inferred, without the absolute certainty of legal protection against being sued, CSPs cannot contemplate doing what would otherwise be a breach of the Data Protection Act.

Clause 102(7), as drafted, is wholly inadequate in this respect. First, it only makes a code or agreement admissible in evidence without making it conclusive and, secondly, while Section 28 of the Data Protection Act contains an exemption from all the data protection principles where such exemption is needed for national security, Section 79 on the prevention and detection of crime does not. In particular, it does not contain an exemption from the principle that personal data shall not be retained for longer than it is required.

The Information Commissioner's memorandum on the Bill, published on 13th November states: Continued retention of communications data by a communications provider beyond the completion of its own processing need, in order to satisfy the needs of others, is likely to contravene the 1998 [Data Protection] Act's requirements. The clauses providing for retention based on the provision of a code of practice or agreement would not necessarily remedy the situation".

Can the Government explain how the provisions in the Bill would be workable if, as the Information Commissioner suggests, key elements may not be compatible with the 1998 Data Protection Act?

CSPs have received advice from legal counsel indicating that there is no certainty that the voluntary code of practice proposed in the Bill would provide CSPs who comply with the code with legal protection. This would place CSPs in a wholly unacceptable legal position. Counsel's advice was that the retention of communications data pursuant to a code of practice potentially engages two of the data protection principles. The second principle provides that, Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes". The fifth principle provides that, Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes".

The second principle states that purposes may be specified either in a notice to the data subject under the fair processing code or in a notification to the commissioner. This would mean that, in order to be a lawful purpose, the fact that communications data were being retained for national security and law enforcement purposes would need to be disclosed to the data subject. This could have negative effects on business in that customers might be unwilling for their information to be kept for those purposes. It could also result in a huge increase in data subject access requests. That is a point upon which we touched briefly previously, but to which we still have no satisfactory answer.

We believe that a voluntary code of practice must be backed up by a clear provision for statutory immunity for CSPs in the text of the Bill. Hence the amendment which, in terms, states that compliance with a code of practice, agreement or direction renders a CSP immune from actions under the Data Protection Act and similar data protection legislation.

The duty under the Human Rights Act to construct legislation so far as possible to make it consistent with human rights adds particular uncertainty. The amendment in this context seeks to provide a clear and unambiguous statement that in relation to the retention of data the Act we are debating today overrides conflicting legislation so that CSPs who comply with a code, agreement or direction can do so secure in the knowledge that they cannot be made legally liable in so doing. The Minister should be under no illusions as to the importance of that. Without absolute certainty about liability, the voluntary code simply cannot work. I beg to move.

9.15 p.m.

Lord Rooker

Does the noble Earl want the voluntary code to work? I am not sure about that, having listened to the manner in which the amendments were presented. If the Opposition do not want the voluntary code as the first option and would prefer a statutory measure, let them say so. However, that is not the Government's intention. We want the voluntary code to work. I cannot emphasise strongly enough that we do not want to, and will not, put service providers in the situation that the noble Earl thinks they may be put in. I hope that I shall make that absolutely clear in responding to the three amendments.

We have no intention of drawing service providers into breaking either the civil or the criminal law. The code of practice and the agreements will not be drafted in a way which is incompatible with data protection or human rights legislation. I have made that point about half a dozen times, if not more, during the course of our debates. However, it bears repeating to put it on the record so that industry can see the whites of our eyes and can be sure that what we say is what we mean.

We are keen to ensure that any data kept for the purpose of safeguarding national security or preventing and detecting should be stored by service providers in accordance with the Data Protection Act. This means that data should be retained only for a period which is necessary and, of course, proportionate, and should be stored with the utmost regard to processing quality standards.

Removing the possibility of legal challenge to service providers' retention practices would undermine the Government's commitment to ensuring that personal data are treated fairly and responsibly in line with the Data Protection Act. These protections work only if subject to a challenge in the court.

In any event, we intend to draw up a code of practice that is compliant with data protection and human rights legislation and to consult fully with the Information Commissioner to ensure that the drafting reflects that. It is, therefore, entirely unnecessary and, indeed, bordering on the unhelpful, to introduce any kind of immunity clause.

I turn to Amendment No. 176F. The amendment tabled by the noble Earl would clarify that data retained in accordance with a direction under Clause 103 were necessary for national security and the prevention or detection of crime as we discussed earlier.

If a communications service provider is issued with a mandatory direction to retain data, his purpose for retaining it in data protection terms is that he is obliged by law to do so. Therefore, there is absolutely no question of liability, and a certificate from the Secretary of State would not add an iota of further protection. I am sure that any information service provider who took legal advice on this issue would immediately know that to be the case. It is hoped that that would give such service providers absolute coverage. They are entitled to the coverage and are entitled to seek it but, once they are in a mandatory situation, it is implicit that they have absolute immunity.

I turn to a point which I suppose brings me back to my initial question. I understand that some sections of industry—I have not been involved in any discussions but I have received reports of them—would probably like to have the comfort factor of being able to say to their customers, "We must do this; the law says so, and we are all treated the same". We are not going down that route. To begin with, we want a voluntary system in which everyone is treated equally and in which, it is hoped, no red herrings give rise to customer dissatisfaction with individual suppliers. We do not intend to play off one against another. That would be wholly unfair and an abuse of the Government's position.

So far as concerns the final amendment in this group, I can only repeat what I have already said. We have no intention of drawing service providers into breaking either the criminal or the civil law. The proposed code will be fully compatible with human rights and data protection legislation. I can repeat the exact points that I have made on previous amendments but that would appear superfluous; they are the same word for word.

With regard to the directions set out in Clause 103, if a communications service provider is issued with a mandatory direction to retain data, then, as I said, his purpose in data protection terms is that he is obliged to do so by law. Therefore, such providers have a copper-bottomed guarantee of immunity and no purpose is served by the proposed amendments being made to the Bill. I assume that, quite rightly, they have been tabled for exploratory and probing reasons in order to obtain firm guarantees from the Government and to have those recorded in Hansard.

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 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 he 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.]

The Earl of Northesk moved Amendment No. 172B:

Page 62, line 34, at end insert— "( ) 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.

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.

Lord Rooker

I do not accept that for one minute. We should prefer to have a voluntary code and, in view of our contacts with the industry, we have every expectation of securing that. I am not going to give details of that consultation tonight because I am in no position to do so.

I turn to the points of substance that have been raised. I do not deny that they are points of substance, but I do not agree that the amendment should be added to the Bill. The amendment would have two effects: it would guarantee that an unreasonable burden was not placed on service providers, and it would prohibit the retention of data that are not needed for business purposes.

The first issue is dealt with in Clause 105. The Secretary of State is required to ensure that arrangements are in place to make appropriate contributions to service providers if he judges that it is right to do so. So far as I am concerned—I shall also take advice on this—the terms in the first two or three lines of Clause 105 are standard and are used in other Bills. I recall that form of words from my time at the DSS when we consulted with industry. They came up when we were, as it were, paying for something to be done or that had been done at our request. The phrases, "as he thinks appropriate", and, "as he thinks fit", involve a tried and tested formula in legislation and I am not aware of any complaints about the words. That also mirrors the payment arrangements in the Regulation of Investigatory Powers Act, which covers access to communications data.

It is absolutely crucial that we work with information providers to ensure that the arrangements do not cause British industry to lose out to competition from abroad. We are not seeking to damage British industry in any shape or form in relation to its competitors. That will not satisfy Members of the Committee but it certainly answers the first point.

The second issue concerns the type of data to be retained. That will be discussed in detail in the consultations on the code of practice. Individual agreements with the service providers will specify exactly which types of data are kept and will ensure that current retention practices are taken into account. There will not be a "one size fits all" arrangement. Some providers may end up retaining more data than they currently do. We want to take that into account.

The provisions are flexible enough to distinguish data that are of use to law enforcement and should be kept, and data that are of no interest to national security or the detection of crime. Records of standard operational procedures or the product of the functioning of computer systems, for example, should not be kept because that has nothing to do with the purpose for which the codes allow data to be kept. The provisions apply only to communications data that are already held by providers. We have no intention of asking them to retain data that are not collected in the normal course of their business. They are being asked to do nothing new. I see that the noble Lord is nodding, for which I am grateful.

The information that I have is that, in relation to our international partners, there have been negotiations on the EU draft communications data protection directive. My notes contain a word that I cannot read, but it starts with, "cyber"; it could be "cyber-active forum". Last week, that forum was devoted entirely to data retention. I shall get a translation of the word in due course. There are ongoing European Commission discussions with the United States authorities and the matter arose at the G8 Florence summit two weeks ago. Home Office officials have met counterparts from France and the Netherlands. I now learn that the word I could not read is, "cyber-crime", and the body is the "cyber-crime forum". Okay. The writing is much better than mine. I am not making a criticism.

Last month Home Office officials met counterparts in France, the Netherlands and Sweden to discuss what each country is to do on data retention to meet the 11th September crisis. France has just introduced emergency legislation to retain data for up to one year for law enforcement purposes. I hope that that brief overview answers the noble Lord.

Amendment No. 176A seeks to ensure that equity is maintained between service providers and that they are not made to bear unreasonable burdens. We are committed to ensuring equity between comparable service providers. If it is necessary to introduce a mandatory scheme—I hope that it will not be—discussions about how equity can be observed will take place during consultation before directions are made.

Payments are dealt with in Clause 105. The Secretary of State is required to ensure that arrangements are in place to make appropriate contributions to service providers, if he judges that it is right to do so. That mirrors the payment arrangements in the RIPA provisions which cover access to communications data. The second issue concerns the type of data to be retained. That will be discussed during the consultations.

Amendment No. 176E introduces a test of reasonableness to directions issued under Clause 103. There is a requirement to consult communications providers before issuing directions. That will ensure that they are able to express what they can or cannot reasonably do. The Secretary of State will then need to balance those considerations against what is necessary to safeguard national security and to prevent and to detect crime.

We are committed to considering what help may be given to service providers that may take the form of capital investment or running costs. We shall work with the service providers on that and, in particular, we shall ensure that that does not cause British industry to lose out to competition from abroad. Noble Lords have raised a crucially important point on which I hope I have satisfied them.

The Earl of Northesk

I am grateful to the Minister for his explanation and comments. The noble Lord, Lord Phillips, may be more optimistic than but I concur with his wish and expectation that this part of the Bill will eventually be appropriately constrained, which will render these particular amendments redundant.

I am also grateful for the comments of my noble friend Lord Goschen. He put the issue with much more clarity than I managed. His point about potential migration via CSPs is well made. The Government should not lose sight of the fact that that could happen as that would damage their ambition to make the UK the best place for e-commerce among the G7 by 2005 and aspirations of that kind.

I hasten to add that thus far I have tried to avoid muddying the waters of the debate with references to preparation of and negotiation over EC directives. My suspicion is that we have probably successfully confused too many people already without adding that into the matrix. I am particularly grateful for reassurance from the Minister that the requirement for retention of data shall not include anything outside CSPs' normal business practice and use. That is extremely helpful. Tomorrow I shall read carefully in Hansard what the Minister has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 102, as amended, agreed to.

The Deputy Chairman of Committees (Lord Geddes)

Before calling Amendment No. 173, I must advise the Committee that when that amendment has been disposed of I shall call Amendment No. 173B before Amendment No. 173A, as Amendment No. 173B has been incorrectly marshalled. I must further advise the Committee that if Amendment No. 173 or 173B is agreed to, I shall be unable to call Amendments Nos. 173C to 174 inclusive due to pre-emption.

Clause 103 [Directions about retention of communications data]:

9.45 p.m.

Lord Phillips of Sudbury moved Amendment No. 173:

Page 62, line 36, leave out subsection (1) and insert— "( ) If, after reviewing the operation of any requirements contained in the code of practice and any agreements under section 102, it appears to the Secretary of State that it is necessary to do so to safeguard against terrorism, he may by order made by statutory instrument authorise the giving of directions under this section for as long as it takes to revise the code in consultation with the communications providers to whom the code will apply or, as the case may be, who will be affected by the revisions, or with the persons appearing to him to represent those providers."

The noble Lord said: The amendment seeks to soften the impact of Clause 103. As the clause stands, if the Minister has compulsorily to act—that is to say that he fails to reach the agreement which we all accept he and the Government will be earnestly seeking—one moves into a position where directions can be given for an initial period of two years. That is renewable ad nauseam.

We on this side of the House—there are several names attached to the amendment which cover the spectrum—feel that a better solution to the circumstances which give rise to compulsion would be for the compulsion period to end as soon as a satisfactory code has been developed. That is the simple purport of Amendment No. 173. I beg to move.

The Earl of Northesk

It may be convenient to the Committee if I speak to Amendments Nos. 173A, 173B and 174B. I begin by supporting the words of the noble Lord, Lord Phillips. Both Amendments Nos. 173A and 173B offer alternative approaches to the amendment so eloquently explained by the noble Lord.

Our view is that it is inappropriate that the Secretary of State should have absolute discretion in invoking reserve powers. To that extent, we are of one mind in the conviction that this part of the Bill is in need of improvement.

I turn to Amendment No. 173A. It seeks to introduce elements again of a proportionality test against which the Secretary of State's giving of directions under the clause can be measured. It is important to realise that it is not unwillingness on the part of business that can make compliance with data retention requests difficult, be they voluntary or mandatory. As the Minister said, the response of communication service providers in the wake of September 11th has been excellent. There are often sound commercial reasons for non-compliance: for example, the data required might be available only on a service that is subject to another jurisdiction. That point was made previously by my noble friend Lord Goschen.

I hazard a guess that understanding of these kinds of issues is perhaps a little cloudy. Thus, without some form of test and the pro-active involvement of business in the process, it is conceivable, if not likely, that directions emanating from the Secretary of State alone will entrench the ineffectiveness of the code rather than address it. In the context of a mandatory code, that has the potential of being positively harmful to the sector. Amendment No. 173A seeks to address that problem by making business a party to the preparation of any revisions in the code.

I turn to Amendment No. 183B. That too introduces a threshold test for the reserved powers by obliging the Home Secretary to show that a direction under Clause 103 is necessary and justified for the purposes of the Bill by linking it back—again—to Clause 102(5). That is consistent with the proportionality principle highlighted by the Information Commissioner in her memorandum on the Bill. She stated: The scope of the powers proposed to be given to the Secretary of State is immensely broad. The lack of any overt safeguards against abuse of such powers indicate a lack of proportionality such as to render the prospective legislation incompatible with Convention rights". Amendment No. 147B picks up that thread and applies it equally to any directions that the Secretary of State may issue to communication service providers. As so often with the Bill, the objective is to establish appropriate consistency with the principles of proportionality present in data protection and human rights law and in RIP.

Viscount Goschen

In responding to the amendments, the Minister has an excellent opportunity to reassure the Committee and the industry about what circumstances are in the Government's mind with regard to Clause 103—under what circumstances they would seek to introduce directions by statutory instrument rather than allow the voluntary code of practice to continue.

We well know that the industry tends to know much more about the business of providing information—the ins and outs of the competitive framework—than do the Government. The industry is a vital part of making this area of the Bill work. If it is compelled to do something, the chance of it co-operating fully will be much less. It is clearly in the Government's interest to reassure the industry that Clause 103 is a reserve power.

My noble friend Lord Northesk and the noble Lord, Lord Phillips of Sudbury, have provided some more objective tests to be used—some further hurdles to be overcome. The Minister may or may not like the specific tests that they have proposed, but the Committee wants further reassurance on when and how the clause will be invoked. All our discussion on Clause 102 for the past two or three hours has been useless if the Government have it in mind to use Clause 103 at the flip of a switch.

Lord Rooker

I take the point behind the amendments. I can make one commitment that may answer the Committee's suspicion. I cannot read out a list of criteria by which we would decide, if necessary, to switch from a voluntary to a mandatory scheme. However, during consultation on the code of practice, an objective set of criteria to determine its success or failure will be drawn up. I cannot put it better than that. During those discussions, we will draw up with the industry and the Information Commissioner an objective set of criteria to decide at a given time whether the code had been a success or a failure. If it were a failure, that would trigger either further consultation to revise the code or the mandatory route.

I can entertain the Committee with much repetition of what I said earlier, but my remarks just now go to the central point that is the thrust behind the amendments. We want to be open and objective about measuring the code's success or failure. As I said, that set of criteria will be drawn up during the consultation.

Lord Phillips of Sudbury

That reply is helpful. What if the Minister had to go down the compulsory route and the industry came running to his door, started negotiating seriously and effectively and, after six months, let us say, we had a code with which everybody was satisfied? As I understand it, nothing in the Bill would allow the two-year period to be broken or ended. I wonder whether that is right and sensible.

Lord Rooker

I do not know, but I am happy to consider that in the time available. We want the thing to work. If we can clarify that point, we will. If the voluntary system has failed and we are moving to a statutory system but, following negotiation, there is an agreement to continue a voluntary system, by definition there is no dispute any longer and it does not make sense to ramrod the statutory system. I shall take advice and clarify the process, if I can, because that is in everyone's interest.

Lord Phillips of Sudbury

I thank the Minister for that reply and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 173B not moved.]

The Deputy Chairman of Committees

Before calling Amendment No. 173A, I must advise the Committee that, if it is agreed to, I cannot call Amendments Nos. 173C to 176 inclusive due to pre-emption.

[Amendments Nos. 173A and 173C not moved.]

[Amendment No. 173C not moved.]

The Deputy y Chairman of Committees

Before calling Amendment No. 173D, I must advise the Committee that if it is agreed to I cannot call Amendment No. 174.

[Amendments Nos. 173 to 174B not moved.]

Lord Phillips of Sudbury moved Amendment No. 175:

Page 62, line 43, after "to" insert "public"

The noble Lord said: I speak for all those named on the amendment. I hope that the Committee will be patient if I deal with it with some care—care partly because it affects an issue which causes consternation outside the Chamber in the industry and care because, frankly, I do not know what I am talking about!

On that score, I should pay tribute to the great deal of help which we on this side of the Committee have received from the Foundation for Information Policy Research and the Internet Service Providers Association. Both those organisations are steeped in the intricacies of this strange world.

The point of the little word "public", inserted in Clause 103(2)(a), is that where the Secretary of State gives directions he must give that information and direction to public communications providers generally in order to get away from the personal/private provider as defined by the legislation. It is also to restrict the coercive powers of Clause 103 to public communications providers.

As drafted, the clause would compel the keeping or retaining of data not just to communications providers under the Bill, sometimes called Internet service providers and telephone companies, but to anyone with a computer utilising software providing any kind of service, commercial or not. That would include a web server, file sharing software, and so-called "peer-to-peer" networking. Peer-to-peer networking is not the kind of thing Members of this House do for many hours a day in the many nooks and crannies of this wonderful building, quaffing and talking, although it is the same spelling. Peer-to-peer networking involves computing devices which talk directly to one another without a central computer controlling that communication. Devices used in peer-to-peer communications, which is known in the trade as P2P, can include not only desk-top computers but also PDAs, palm or hand-held computers, corporate workstations or even cell phones. Hooking up computers by P2P connections is a critical step for the future of computing generally. That is the importance of this apparently small amendment.

For many years, computer users had to dump their information into a central data base before anyone else could use it. But with P2P networking, users can share on a one-to-one basis as data is generated, rather than waiting for central data bases to be updated, therefore allowing for more accurate and time-sensitive decisions. For example, a PC user with the right permissions could check on his co-worker's laptop to see whether a particular file existed. P2P networking is also becoming vital to collaboration between workers and has, I am told and believe, huge potential commercial application. Through direct computer-to-computer collaboration, users can share files easily and message each other as they do so. These functions, which help to duplicate the environment of an in-person meeting, are extremely helpful to companies as workers spread out across the country and the globe.

For consumers P2P networking is an irreplaceable tool for global knowledge-sharing and media distribution and makes it possible for users to have quick and easy access to entertainment and software cheaply relayed to each other's computers at a price that cannot be matched in the outside world. It also helps users to share information, files and research that they cannot find elsewhere. That is the purpose of inserting "public" in the two places in the Bill. I should be interested to know whether the Government have any objection to these proposals. I beg to move.

10 p.m.

The Earl of Northesk

I rise to contribute to the noble Lord's introduction to these amendments and speak to Amendments Nos. 177E, 177F and 177G. The Bill is drafted in such a way as to compel the retention of data by private as well as public networks. The Minister confirmed that point in an earlier debate. Thus it applies to a massive sub-set of computing uses. The noble Lord, Lord Phillips, mentioned peer-to-peer or P2P which is already a well-established medium for data transfer and exchange over the Internet.

Many—or maybe few—will be aware of the legal action conducted in America against Napster by the recording industry. Whatever the outcome, P2P, whether represented by Napster derivatives or successors such as the systems engineered by the recording industry—I believe that one was announced today—is becoming a benchmark for data transfer of content over the web.

In terms, therefore, the Bill potentially requires private computers, perhaps even down to the level of the individual user, to log arbitrary data. If it applies at that level and users are required to log traffic and report usage upon government request, not only will it be an unwarranted intrusion upon the individual but it could also severely impair research and development of a number of P2P software applications.

There are those who believe that P2P and its variants are the future of e-commerce. For example, Andrew Grove, former chairman of Intel Corporation, observed: Web computing defined the second half of the '90s; peer-to-peer computing will be a significant paradigm"— a wonderful word— of the first half of this decade". How does that square with the Government's commitment to e-commerce?

Amendments Nos. 177E, 177F and 177G are quite technical but no less important for that. Amendment No. 177E seeks to ensure that data generated temporarily during the course of computing operations, which has no separate business use, are not inadvertently caught by the scope of the Bill. I believe that the Minister has already given assurances on the point, so if he chooses not to reply to that amendment I shall probably be satisfied. Amendments Nos. 177F and 177G echo the concerns raised in respect of Amendments Nos. 175 and 176. I have in mind—I may be wrong—that our debates on RIP provoked assurances that the provisions of that Act did not extend to private telecoms networks. Perhaps the Minister can confirm that one way or the other.

I move to Amendment No. 177G. The particular focus of our debates on RIP was whether its provisions extended to providers of private telecoms networks. This amendment also seeks to address that problem.

Viscount Goschen

It is clear that the noble Lord, Lord Phillips, and my noble friend Lord Northesk have put their fingers on a central problem. I do not envy the Minister's task in defining "communications provider". As my noble friend Lord Northesk said, during debates on RIP we went round in circles for a long time trying to nail down what a communications provider was. It is clear that we all know, more or less, what the Bill should mean. There is a statement that is sufficiently vague for it to come from any Front Bench.

Clearly, technology is moving extremely fast. We have heard descriptions of systems being envisaged that will not need a central server or computing business to enable communications to pass from one machine to another. We need to define the term "communications provider" and to be clear about what types of service will be included and which will be specifically excluded. For example, would a small office comprising five computers fitted with networking software to enable e-mails to be sent between those machines be termed a communications provider? Members of the Committee know that such a system is not what the Act is aimed at, but the provisions must make it clear where they intend to strike.

Lord Rooker

We are entering the realms of technology and "new-speak" that are beyond me. Indeed, in reading out a profoundly complicated statement, the noble Lord, Lord Phillips, admitted that he could not understand the detail. I felt for him.

I can respond to the amendments briefly, perhaps not to universal satisfaction, but at least to establish consistency, which is important. The definition of communications providers set out in the Bill is and should be consistent with that used in the access to communications data provisions set out in Part I, Chapter II of the Regulation of Investigatory Powers Act 2000. Although the provisions in the Bill and those in the RIP Act will bite in the main where they are intended to do so—namely, on providers who provide a service to the public, such as BT, Orange and Vodafone—we do not wish to rule out the possibility—I put it no more strongly than that—of ensuring that communications data relating to private networks are retained where they might be necessary for national security or crime prevention purposes.

Earlier I said that we have accepted the case as regards PDVN and university networks, but I am reluctant to cite examples and the reasons why it may be done. That is because the different cases will be explored and will be covered by the code of practice. Details on negotiations will be covered by the code. We shall retain the possibility.

As regards P2P, which is new to me because I have not yet read about it and thus I am not as up to date as the noble Lord, the directions would need to be appropriate and relevant for the purpose for which the data may be retained under Clause 102(5)—on which we have had a technical disagreement, as it were—that is, to cover national security and the prevention and detection of crime. Directions need to be appropriate and relevant for those purposes.

Keeping the definition consistent through the different pieces of legislation is probably important for reasons of cross-over. When listening to noble Lords and taking note of the examples given, I can understand why noble Lords might worry that the Government are being oppressive. That is not our intention. By keeping the definitions consistent, we send a signal indicating that the possibility is in place, but that it is not our intention to target private networks. Nevertheless, at some time it may be possible that we would need to do so. I thought that the noble Lord, Lord Phillips, wished to intervene, but he has indicated that he agrees with what I have said. It must be the late hour.

The noble Earl on the Opposition Front Bench invited me not to reply to one of his amendments because, in effect, I have already responded to the central points. Amendments Nos. 177F and 177G both refer to the definition. In that regard I refer to what I have just said. The central point is that it is not our intention to be oppressive. These matters will have to be discussed during the consultation on the code of practice in order that people will know where they stand. I hope that I have said enough to reassure noble Lords and others outside the House. I appreciate that we do not yet have a code of practice or even a draft.

As to the comments that this issue has been in the offing for years, I can assure the Committee that the Home Office has now got its skates on.

Lord Phillips of Sudbury

I am grateful to the Minister for those remarks. Although the intricacies are arcane, the principle behind the amendment is understood by one and all.

If when considering what I said in introducing the amendment the Minister and his officials are of the view that there is substance in it, I would be grateful if the Government could suggest an amendment to cover the position. I am sure that the Minister will accept that important principles such as this need to be right on the face of the Bill. We should not leave everything to codes. For this purpose, I am sure that those who have been assisting me on this side of the House with these technical matters would be very happy to discuss them directly with officials to try to hammer out the truth of the matter. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 176 to 176F not moved.]

On Question, Whether Clause 103 shall stand part of the Bill?

10.15 p.m.

Lord Phillips of Sudbury

I beg the patience of the Committee at this late hour while I try to draw together the strands of anxiety that have been expressed so far on all the amendments in respect of Clauses 102 and 103. The issues are of the greatest moment and, to be fair, the Minister has made no attempt to pretend otherwise.

There is a profound disagreement between the Government and the rest of the Committee on the central issue of whether this part of the Bill should be confined—or can be confined—to threats to national security. I would rather put it that way than talk of terrorism. Indeed, that is how it appears in the Bill.

If the noble Lord, Lord Rooker, is correct in his claim that it is impossible to define the scope of this part of the Bill so that it is confined to threats to national security and any criminal matter potentially related to such a threat, then the anxieties are heightened and intensified. I do not think that it is the case that the wit of man and parliamentary draftsmen cannot rise to this challenge. I was as bold during the course of the debate to suggest a form of words that might serve the purpose.

It means that, further downstream, when the time comes to access the bulging warehouses of data communications, it will remain impractical—if the Minister is right—to distinguish between a threat to national security and any old crime. In which case, those warehouses can be accessed wholesale under Sections 22 and 23 of the RIPA legislation, not only for the purposes for which this legislation has been brought forward on an emergency timetable but for vastly wider purposes.

Let us examine what this could mean. First, will data retained under the terms of the Bill, and accessible under the Regulation of Investigatory Powers Act, be accumulated by any agency or any authority in some central or single database? In other words, could data from separate inquiries and investigations for diverse purposes be pooled or accumulated? We assume that that is the case.

Secondly, is it intended to mark or categorise such data in terms of the purpose for which the data were retained? Will it be possible to distinguish at a later time which data were obtained for what purpose, so that, as the Data Protection Act provides, the data shall not then be used for any incompatible purpose? Again, I must assume that the answer is no. My view is reinforced by the Government's unwillingness to accept the merits of Amendment No. 171.

Thirdly, will the data be kept by police in databases for intelligence purposes? If that is the case, current Association of Chief Police Officers guidelines mean that the data can be kept indefinitely, subject to a yearly review, even if the people concerned are neither convicted nor suspected of any crime. That illustrates the central difficulty that we have.

Although the Government rely heavily on the continued applicability of the Data Protection Act, the Information Commissioner has no duty to inspect the databases that will hold the data after they are obtained or to examine the manner in which they are used.

The Government may say that that responsibility falls to the Interception of Communications Commissioner under the Regulation of Investigatory Powers Act. But that, again, is not so. The Interception of Communications Commissioner has a duty to satisfy himself that traffic data are lawfully obtained, and no more. He has no say over what may be done with the data afterwards, and no mandate or technical capacity to inquire.

If the Government were to accept the central concern—namely, that this part of the Bill should be restricted to threats to national security and potentially related crime—most of our other concerns would go or would be easily accommodated. On Report, we shall, I fear, have to press this matter to a vote unless there can be some accommodation. We do not accept the fatalism of the Home Office in terms of the inability to confine the scope of the Bill, especially since it chimes with the wishes of NCIS and the other security bodies, as mentioned previously in this debate.

The distinction that the Minister has constantly made between data attached to communications and content of communications is not as great as he implies. The fact of being able via communications data to draw an accurate, precise profile of not merely a few individuals but thousands of individuals is an immense intrusion into the privacy to which citizens of this land are entitled. The profile will be of anyone's interests, contacts and movements. All that is possible—indeed, with the development of technology, it is fast growing.

The Minister has repeatedly assured the House that there "will not be misuse" and that the legislation will fully respect the Human Rights Act, the Data Protection Act and the Regulation of Investigatory Powers Act. He has said so again and again. Indeed, at one point he was so carried away with this conviction that he banged the desk. Had I a desk to bang, I would bang it back. There are times when scepticism is the right course for this legislative House.

I do not mean to be in any way disparaging, but I believe that the Minister is being complacent, given the importance of the issues, because not everyone is as palpably decent and honourable as the Ministers and their civil servants. An audit by the police last year found that the national databank contained more than 50,000 sets of fingerprints and DNA material that were there illegally. They may have been put there out of malice, but it is much more likely to have been a cock-up.

It is a commonplace that access to licensing information, police records and bank records is easily obtained through low-level corruption on the part of those on the inside and on the outside. These are realities and we are foolish to pretend otherwise.

The greatest prayer handed down to us says, Lead us not into temptation". If anything is going to lead those with access to such massive hoards of material into temptation, it is the Bill, unless it is constrained more tightly and focused more specifically than at present. Our view is that the greater the risk to civil liberty, the greater must be our vigilance in that cause.

At the end of all his reassurances, the Minister said that we should not worry because there is always the Interception of Communications Commissioner. I fear that that too is not a satisfactory basis on which to rely. His office is understaffed and under equipped. As his report issued in October this year makes clear, he does not even have the resources to deal with Internet communications. There are no indications of what robust sampling there has been to investigate the vast number of cases involving widely differing types of data that he has to deal with.

The Home Office will not say when the commissioner will be provided with the promised, reliable and verifiable technical means", to inspect the operation of black boxes. That may sound like mumbo-jumbo, but those of us who sat through the proceedings on the Regulation of Investigatory Powers Bill will remember a great deal of late-night discussion on black boxes, which are the key to this element of communications interception and retention.

The commissioner does not yet have a promise that he will have available to him those black boxes, which could be under remote control from NTAC, or even whether he will have a searchable database from which he can hope to undertake his task effectively. Last year the Regulation of Investigatory Powers Tribunal, which was an important part of the protection of the citizen under RIPA and which is supposed to safeguard civil liberties, was criticised by the parliamentary watchdog on the grounds that it did not have sufficient secretariat to enable it even to open the mail, let alone process and investigate complaints.

I fear that it is a commonplace that some of the reassurances that Ministers honestly give on legislation such as this are undermined by a simple failure of manpower and quality of manpower and other resources. We are unconvinced that the huge extra powers and the massive collection and retention of information that these two clauses will enable have been satisfactorily safeguarded.

Compulsion would be acceptable if the scope of the measure was satisfactorily confined, but without that confinement it is plainly disproportionate in its scope. Unless it is amended, we will not be satisfied. The compulsory state mass surveillance made possible by these two clauses can be justifiable only on that basis.

The Earl of Northesk

I support the noble Lord, Lord Phillips. I do not propose to repeat all the arguments that I advanced at Second Reading, especially at this time of night. It is enough to say that I sought to demonstrate then how a mandatory data retention scheme fails four tests: necessity, effectiveness, proportionality and consequence. I acknowledge that the Minister has worked tirelessly over the past few hours to persuade the Committee otherwise, and I pay tribute to him for that, but I remain unconvinced.

I merely emphasise two points. First, there is no evidence whatever that a lack of data retained has proved an impediment to the investigation of the atrocities on 11th September. Despite ample opportunity throughout the Committee stage, the Minister has not challenged that view.

The reality is that communications providers, within the terms of the existing legislation, already routinely hold data for several months or years. To confirm that point, one need look only at how mobile telephone data are retained and the maximum period that mobile telephone companies are prepared to admit that they retain such data.

That being so, the Government have an obligation to make a stronger case for changing the status quo to the extent of seeking reserve powers for a mandatory scheme. The Information Commissioner implied in her draft memorandum on the Bill that it was inappropriate for such an important area of public policy to be determined in a rushed way.

Mandatory data retention, both of itself and more widely, runs counter to government policy. On three separate occasions in the past year. Ministers gave assurances that there were no plans to introduce such a proposal. For example, in their joint letter of 28th January to the Independent, Charles Clarke and Patricia Hewitt stated: We have no plans to introduce legislation mandating the retention of such data", but that is precisely the proposal contained in Clause 103. More widely, it should be understood that a mandatory data retention scheme is wholly antipathetic to the Government's ambitions to make the UK the best place in the world for e-commerce.

The noble Lord, Lord Phillips, said rightly that a mandatory scheme might be tolerable if it were adequately constrained in terms of scope. I am entirely happy to agree with that, but the mandatory scheme, as it is currently constructed in the Bill, is a step too far.

Viscount Goschen

I shall be brief as we have discussed these issues a number of times this evening. The Government are asking a lot in asking Parliament to accept Clauses 102 and 103. The noble Lord, Lord Phillips of Sudbury, and my noble friend Lord Northesk on the Front Bench have highlighted the principal issues.

The central point seems to be that the Government are picking a fight unnecessarily. No Member of the Committee has argued that the Government should not have a means of securing the retention of communications data to combat terrorism. No one has argued against that. The problem arises because the Government and the Home Office are being greedy in asking too much for things that go far beyond the principal aim of combating terrorism. There are a number of other constraints on the direction of the compulsory scheme about which we are concerned. There is an opportunity for the Government to narrow down their focus. If they did that and acceded to the points that have been made this evening, they would lose none of their ability to combat terrorism and they would secure the agreement of the Committee.

10.30 p.m.

Lord Rooker

Although I should not say this, during the course of the debate I have been the model of a listening Minister. However, I have just listened to some incredibly extravagant language which is frightening to people outside the Chamber. To talk about the Government conducting mass surveillance is preposterous. Let us get the matter clear. I invite the Committee to admit that the general public are not affected by this legislation. The general public have nothing whatever to fear. To talk about mass surveillance of thousands and thousands of people on the part of the Government, as Members of the Committee have just said, is extravagant in the extreme.

Lord Phillips of Sudbury

May I?

Lord Rooker

I shall give way to the noble Lord in a moment. He had long enough on his feet if I may say so.

It is also a fact that mobile phone providers do not admit everything. Mobile phone providers do not admit that a mobile phone is a human tracking device. They do not talk about the matter in that way and mobile phones are never deployed in that way, but that is what they are effectively. Let us not beat about the bush. The Government do not seek to invent that phenomenon, but it is a part of the technology.

As I say, the general public are not affected by this legislation. I deny the case that some Members of the Committee have made in that respect. The Interception Commissioner will not have the relevant power in relation to data retention until Chapter II of Part I of the RIP Act is implemented next year. Therefore, he has not carried out any sampling. Black boxes and e-mail concern the content of communications data which this Bill is not about. Members of the Committee who constantly raise those issues are trying to send out a subliminal message that we are attempting to do something which we are patently not; that is, retain the content of communications. We are not in that business at all. I have received advice on this matter as important points have been raised and allegations made. The tribunal's staff has been increased and I understand that the backlog of cases which grew last year, and which is unacceptable in a public authority, has now been eliminated.

There will be no warehousing of data stored by communications service providers. Each individual request for access to data has to be justified. To talk—as Members of the Committee have done—of mass trawls of thousands of people is not on. That is not what this legislation is about. It is not what the code of practice will cover. We must be more moderate and realistic as regards what is on the face of the Bill as opposed to what people think is on the face of the Bill or what the media may say is on it.

The notice to obtain access to retained data must specify the conduct that is allowed and the purpose for which the access is required. Therefore, there cannot be mass surveillance in the way that some Members of the Committee have suggested. Having got that off my chest, I shall be happy to give way to the noble Lord, Lord Phillips, but there are one or two areas where I have indicated that we can meet legitimate concerns, particularly as regards some of the issues raised in previous amendments. We shall seek to do so even in the short time available. Much of that, of course, depends on goodwill in putting together the voluntary code of practice. I do not suggest that there is any bad will on anyone's part, least of all that of industry or the Committee. There is certainly no bad will on the Government's part.

All the indications are that we cart arrive at a successful conclusion to the matter but we must bear in mind what the Bill is about. The language that has been used in what were effectively Second Reading speeches on the two clauses we are discussing gives a misleading impression of the content of the clauses and the purpose for which we intend to use them. However, as I say, where we can meet legitimate concerns—we have tried to listen to concerns over the five days of discussion on the Bill—even in the short time that is available we shall do what we can to seek to accommodate the Committee.

Lord Thomas of Gresford

I have not so far intervened in the discussion on this section of the Bill but the heat generated by the Minister has drawn me to my feet. I think the starting point has to be Article 8 of the convention stating a right to privacy and this legislation requiring the retention of data so as to make them available for investigative authorities, which is a derogation from that right to privacy. From what he was saying, I am not sure that the Minister entirely appreciates that.

Lord Rooker

Perhaps I may—

Lord Thomas of Gresford

Perhaps I may finish, then the noble Lord can have his say. This is the first time that I have expressed myself on this matter.

I have had experience of the way in which tracking happens through mobile phones. I know that it is a very valuable tool in criminal investigations. For example, if a murder takes place, the police investigators see whether a starburst of communications has occurred on the mobile phone of a person who is a suspect. Very often, within 10 or 15 minutes of an incident such as that, it is possible to see that a suspect has contacted half a dozen people. Those people are potential witnesses whom the police can investigate. That is one way in which it is used.

Another way in which, in my experience, it is used is to show where a suspect was at a given time. A mobile phone operates in such a way that it must connect with a particular mast. Therefore, it is possible to demonstrate that when the defendant or suspect says that he was in place A, he was in place B or C. I recall one case, for example, in which a suspect was driving up the motorway from London to a northern town. Contrary to his account of what had happened, it was possible to demonstrate—he had admitted that he had his mobile phone with him—that at the time when various things were happening he was in this place and that place and so on. It was possible to track him the whole way up the motorway.

The significance of that is that the investigative authorities—the police or the security services—can at any time gain access to the records held by a communications server and say, "We are investigating a particular matter". They can then pinpoint the location of any individual who holds a mobile phone, for example. Therefore, when the noble Lord says that this measure does not apply to the general public, it does in fact apply to anyone who happens to hold a mobile phone. It is possible to tell where a person was at any time in the United Kingdom and possibly, although I am not certain, abroad. Therefore, the entire public are subject to such surveillance if the investigating authorities wish to take that surveillance on board.

Therefore, I cannot accept, in however heated a manner the Minister expresses it, that this matter affects only "criminals". It can affect any member of the public. Not only that—I am dealing only with mobile phones—but there are other means of communication held by servers to which the investigating authorities can demand access and from which they can ascertain where, when and to whom an e-mail was sent. From what the Minister said when he resisted the amendment which sought to add the word "public" to the Bill, it seems that the PDVN within the Houses of Parliament can hold on to the records of my e-mails. From those, the investigating authorities can see my connections with Al'Qaeda or my private or business connections. They can gain access to all the information that I have sent through e-mail. Those records will be kept and it will be possible to investigate them in due course.

There is a case to be made for the Minister's proposals but for the purposes of the Bill, the measure should be confined to anti-terrorism. If it is to extend beyond that, the proposals should be put before the public for a long debate to which everyone can contribute and for soundings to be taken. That point was made by my noble friend Lord Phillips of Sudbury in opposing Clauses 102 and 103.

I reject the Minister's argument that the Bill does not cover surveillance of the whole public. It potentially provides for surveillance of every member of the community who uses a mobile telephone or e-mail. Let us face up to that. Is such a measure in the public interest at this moment? Is it in the public interest for it to be debated in the confines of rushed anti-terrorism legislation?.

Make no mistake, the Bill widens the powers of the investigating authorities in an unprecedented way.

Lord Phillips of Sudbury

I am grateful for the Minister's response, which included some extremely warm expression of opinion. I do not resent that but I challenge the Minister to re-examine Section 22 of RIPA in relation to the debate on Amendment No. 171. I believe that he will be advised that unless there is some curtailment of the basis upon which information can be disclosed and obtained under the Bill, it will be open to a number of authorities—particularly the police and security organisations—to access a wide range of information, way beyond anything to do with terrorism or related crime.

Section 22 of RIPA deals with national security, prevention or detection of crime, prevention of disorder, the United Kingdom's economic well being, public health and safety, health, taxes, duties and preventing injury or damage to property. The way that the Bill is constructed, information that is collected and retained either voluntarily under Clause 102 or compulsorily under Clause 103 will be accessible for much wider purposes than those for which it was obtained. By rejecting Amendment No. 171, the Minister rejected his own argument just now.

The Minister said that the black boxes to which I made reference do not carry communications data—only communications that are beyond the remit of the clauses. The Minister is flat wrong. I hope that he will take advice and reconsider. The Minister said also, perhaps with the greatest warmth, that the public are not affected. That is not remotely true. The information that is to be retained under Clause 102, and potentially compulsorily under Clause 103, will affect possibly millions of citizens. I urge the Minister to study the wording of Section 103(2): Where any order under this section is in force,"— that is, a compulsory order where the voluntary code has broken down— the Secretary of State may give such directions as he considers appropriate about the retention of communications data … to communications providers generally". There is no control over the Secretary of State's exercise of that discretion or any definitional limit on the data he can ask to be retained. The Secretary of State can ask the entire industry to engage in such a retention. For the Minister to say that the public are not affected, when the information will be only about the public, is not true. I hope that the Minister will, on reflection, agree. It was for those reasons that I talked about mass surveillance and I do not withdraw that phrase. I hope that we can reach an accommodation. What the Minister and ourselves are concerned about is the same thing. But at the moment he is under a misapprehension as to what his own Bill is capable of doing.

10.45 p.m.

Lord Rooker

I do not dissent for one moment. The noble Lord, Lord Thomas of Gresford, added to previous extravagant claims. He may have put it in silken tones but he made out that the Government are hell-bent on mass surveillance of the British public. That is the thrust of what noble Lords have said. I absolutely and flatly deny that. We have no such intention. Millions have now been mentioned. It gets worse each time the noble Lord stands up. Several times I made it absolutely clear that the code of practice will conform to all necessary legislative safeguards, including—and I mentioned this twice—Article 8 of the European Convention on Human Rights. I specifically put that on the record.

If I am not believed, fine, but that is the point I made. It is the Government's intention to operate within Article 8, the Data Protection Act and all other safeguards in human rights legislation. I flatly deny that we are derogating from Article 8 of the European Convention on Human Rights. I made that point at least three times.

On the black boxes, if I am wrong, I shall take advice. The point, however, was that that related to communications. I repeat again, we are not interested in retaining communications data. I have made that clear several times yet noble Lords still refer to this in passing. We have no interest in retaining that data. Some people may be interested to have it, but the Government do not want it. However often I deny this, it is clear I am not making a satisfactory case for noble Lords opposite.

Where we can meet legitimate points for clarification, both on negotiations for the code and on the Bill, we shall genuinely seek to do so. I accept that time is short but there should be some way for both Houses of Parliament to look at the totality of operation of the Bill when it is enacted.

There are millions of mobile phone users. They carry a human tracking device. The phone companies do not say that, but that is the reality. A lot more can be discovered from both the phone and the components within it. I do not propose to go into details about that. But let me repeat, we are not embarking in this Bill on mass surveillance of the British public. Whatever noble Lords may say, I shall rise each time and make that point.

Lord Thomas of Gresford

Perhaps I may say in reply to the Minister that no one is attacking the good faith and intentions of the Government. We are riot suggesting that mass surveillance is about to take place. What we object to is the powers given to government; not this Government but to any government. There are two points: how long will this legislation last—the sunset clause argument. Had I been sitting on those Red Benches in 1912 as part of a Liberal government pushing through emergency legislation called the Official Secrets Act, I might have spoken with the same passion as the noble Lord. I would have said, "The legislation is only short term and deals with an immediate situation". In fact, it lasted until it became totally discredited and gave far too much power to subsequent governments.

It is not the good faith of the Minister that is in question and there is no allegation that he is about to embark on mass surveillance. We question the handing of powers of considerable potential to the executive; those of us on this side of the House will always resist that.

Clause 103 agreed to.

Clause 104 [Lapsing of powers in section 103]:

[Amendments No. 176G and 177 not moved.]

The Earl of Northesk moved Amendment No. 177A: Page 63, line 34, leave out subsection (4) and insert— ( ) It shall be the duty of the Secretary of State to receive quotations from businesses on the costs of complying with the data retention provisions of this Act and the code of practice, and to ensure subsequently that the appropriate payments in relation to capital and operational costs are made to communications providers.

The noble Earl said: In moving this amendment, I shall speak also to Amendment No. 177C.

I say at once that I welcome the Government's acceptance that communications providers should be compensated for complying with the proposed data retention regime. Unfortunately, the Bill's formula could be open to arbitrary decisions. The amendment therefore seeks to ensure that the Government obtain quotations from businesses about the costs involved in complying with the Bill's provisions and that payment is made to capital and operational investments. In seeking a system of data retention, the amendment recognises that there is a risk that the Government will unintentionally place UK communications providers at a disadvantage vis-à-vis their international counterparts. As has already been mentioned, the Government should not underestimate the possibility that communications service providers will seek to relocate their infrastructure in less onerous regulatory regimes. That is a very real prospect, and more so if the industry infers that the compensatory package is in any way unreasonable or overly burdensome.

Amendment No. 177C offers an alternative approach. Indeed, in that it more closely mirrors the wording in Section 24(1) of the RIP Act, it may—I doubt it—find more favour with the Minister. After all—dare I say it—there is something to be said for consistency. I beg to move.

Lord Rooker

I was rather looking forward to a debate on one of the amendments that was not moved. It is unfair—

The Attorney-General (Lord Goldsmith)


Lord Rooker

I am not trying to cause problems for my noble and learned friend. I wanted to discuss one of those amendments because it related to the fact that in 1911—was that the date?—there was no sunset clause in the Official Secrets Act. We have just passed over the little sunset clause in these provisions. There is a mechanism for returning to the matters. I am sure that Members of the Committee have taken that on board.

On the amendments, I have in some ways covered a couple of the points in previous debates but it may help those who are following our proceedings to put those points on the record. We are committed to giving what help we can to service providers, which might take the form of capital investment or running costs. We will work with service providers on that. I repeat that we want to ensure that there is no possibility of that damaging the competitiveness of British industry with its overseas competitors.

As I have said, the wording in Clause 105 is consistent, so far as I am aware—I have not been contradicted yet—with the RIP Act. I recall that similar words were used in our arrangements at the DSS, when we dealt with industry's access to information relating to the Social Security Fraud Act. That legislation began in your Lordships' House and there were great debates on it before it came to the Commons. I was grateful to noble Lords for their scrutiny of it.

Amendment No. 177C would require the Secretary of State to ensure that fair contributions were made towards any costs that were incurred by service providers. Such costs would not be limited to those incurred as a result of the Bill's provisions.

Furthermore, it removes the Secretary of State's responsibility to ensure that any contributions paid are appropriate. I am sure that the Comptroller and Auditor General will have something to say about such a wide statutory provision. Indeed the Public Accounts Committee will probably be in more uproar than the Human Rights Joint Committee is in relation to this Bill.

The existing provisions are and should be consistent with those in the Regulation of Investigatory Powers Act. In the light of that, I hope that the noble Lord will not press the amendment. We seek a genuine arrangement of consensus with industry. We realise that there will be greater burdens on some providers than on others. Therefore, we want to meet the special needs of different providers in the best way that we can.

The Earl of Northesk

Perhaps I should apologise to the Minister for not moving amendments. I had thought that he would be grateful. I am grateful for the comments that the Minister has made. I shall reflect upon them when I read them in Hansard. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Northesk moved Amendment No. 177B:

Page 63, line 41, at end insert— "( ) Section 65 of the Regulation of Investigatory Powers Act 2000 (c. 23) (the Tribunal) is amended as follows. ( ) In subsection (5), after paragraph (f) insert— "(g) the making of any request for the retention or disclosure of communications data in pursuance of any code of practice issued or agreement entered into under section 102 of the Anti-terrorism, Crime and Security Act 2001 and the making of any direction pursuant to section 103 of that Act." ( ) In subsection (8), after paragraph (f) insert— "(g) a code of practice or agreement made under section 102 of the Anti-terrorism Crime and Security Act 2001, or a direction made under section 103 of that Act.""

The noble Earl said: Bearing in mind the hour, I shall be brief. Communications service providers and individuals should have an appeals procedure against requests for the retention of data or directions issued under the Bill. That is our belief. That would provide the independent scrutiny of such requests that is an essential part of Article 8 of the ECHR and would make for better overall accountability. An appropriate body for such appeals would be the tribunal set up under RIPA. Among other things, that considers complaints from persons aggrieved by certain conduct under RIPA, including conduct in relation to obtaining or requiring the disclosure of communications data. Section 65 of RIPA confers on the tribunal jurisdiction to hear those complaints. Therefore, the amendment seeks to extend the jurisdiction of the tribunal to the hearing of appeals against data retention requests and directions made under this Bill. I beg to move.

Lord Rooker

I too shall be brief. The provisions on data retention in this Bill are not—I repeat not—investigatory powers. Therefore, we believe that they should remain outside the scope of the tribunal that deals with investigatory powers.

The code of practice and agreements are voluntary. There should be no need for a complaints mechanism for a voluntary regime. Before making directions, the Secretary of State is required, under the Bill, to consult with those to whom the directions will apply. Service providers are also free to apply for judicial review of the Secretary of State's decision to make directions. I kept a straight face and did not change my tone of voice while reading that. We are not opposed to judicial review; we are not opposed to scrutiny. In some areas we do not believe that it is necessary because we have a good mechanism in place anyway. I say that in case anyone is contemplating returning to Part 4 debates. Nevertheless, in this area service providers are annoyed about any decision directly from the Secretary of State. Judicial review would be open to them. With that on the record, I hope that the noble Lord will be satisfied and that he will withdraw his amendment.

The Earl of Northesk

I am grateful for the comments made by the Minister. I have one observation. I am bound to contemplate what the position would be vis-à-vis appeals in the event that the Secretary of State ever felt it necessary to impose a mandatory code of practice. I shall reflect on that overnight and I shall reflect on the comments made by the noble Lord when I read Hansard tomorrow. In the mean time, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 104 agreed to.

Clause 105 [Arrangements for payments]:

[Amendment No. 177C not moved.]

Clause 105 agreed to.

[Amendment No. 177D not moved.]

11 p.m.

Clause 106 [Interpretation of Part 11]:

[Amendments Nos. 177E to 177H not moved.]

Clause 106 agreed to.

[Amendment No. 177HA not moved.]

Clause 107 [Bribery and corruption: foreign officers etc.]:

[Amendment No. 177J not moved.]

Baroness Whitaker moved Amendment No. 178:

Page 65, line 10, after "Kingdom)" insert "and in particular such authorities having legislative, administrative, or judicial functions, or exercising a public function for that country or territory (including public agencies or public enterprises) and public international organisations"

The noble Baroness said: I declare an interest as a member of Transparency International UK's Advisory Council. Amendment No. 178 seeks to make clear beyond doubt who is covered by the words "public body". The aim of this part of the Bill is to make it certain that bribing a foreign public official is a crime in compliance with the OECD Convention. It is a splendid advance in the fight against international terrorism as well as supporting international good governance.

But the reality of the most damaging kinds of large-scale bribery is that the bribed party may well not be a public official in the sense of the 1889 and the 1916 British law definitions which Clause 107(4) invoke. He or she may be a member of the legislature, an officer of a newly privatised utility, a judge or an officer of one of the international organisations based in the country concerned.

That is why the OECD Convention defines a "foreign public official" in words very close to the amendment. I ask, therefore, how can my noble and learned friend the Attorney-General be confident that the text of the Bill as drafted complies with the OECD Convention? I beg to move.

Lord Roper

I must also declare an interest as a member of the British section of Transparency International. I rise briefly to support the amendment of the noble Baroness, Lady Whitaker. It is important that this matter is clarified, if not on the face on the Bill at least by a clear assurance by the Attorney-General on the point.

The public service in various parts of the world is not necessarily as well developed as it is in this country. Therefore, the risks described by the noble Baroness are very real ones. The Committee wants this matter to be made perfectly clear, if not on the face of the Bill, in terms of the assurance which I hope the Attorney-General will be able to give us.

Lord Goldsmith

I am grateful both to my noble friend Lady Whitaker and to the noble Lord, Lord Roper, for raising the issue. The definition which is provided by Clause 107(4) is wide. I draw attention to the words. It states that by amendment to the 1916 Act, public body includes local and public authorities of all descriptions". Added to those words would be, including authorities existing in a country or territory outside the United Kingdom". My view is that having made clear that the law covers authorities "of all descriptions"—I emphasise those words—it is unnecessary, and possibly confusing, to add that it covers some types of authority "in particular", as my noble friend's amendment proposes. Our courts are familiar with what is meant by "public authority". It is a term which is not infrequently used in legislation. In other legislation, for example the Human Rights Act, we have avoided using any definition of "public authority". There could be dangers in unnecessarily departing front those established precedents.

As amended, the 1889 Act—read with the 1916 Act that amends it—will have a wide reach. But even so, we will not be wholly reliant on it to meet the requirements of the OECD convention. We still have the common law crime of bribery, which, according to its standard formulation in Russell on Crime, covers: the receiving or offering— of— any undue reward by or to any person whatsoever, in a public office, in order to influence his behaviour in office, and incline him to act contrary to the known rules of honesty and integrity. That common law crime applies to persons who carry out functions which have nothing to do with the UK and carry out those activities outside the United Kingdom. That again is a wide formulation that is not tied to any particular form of authority. I hope that that gives additional assurance.

It is right also to bear in mind that the 1906 Act also provides an offence applicable to any person who is an "agent", which is defined as any person employed by or acting for another". Again, that can arise in both the private and the public sector. That provides an additional safeguard to ensure that the Bill achieves the wide cover intended. For those reasons, the Government are satisfied that the Bill as drafted covers all the categories of public official that the OECD convention requires to be covered.

To repeat what my noble friend Lord Rooker said at Second Reading, the Government remain convinced that the law of corruption is in need of wider reform. The existing offences are something of a patchwork. It is our intention to replace them by a single offence as part of a general reform of corruption law. That will be carried out as soon as parliamentary time permits.

In those circumstances, I hope that my noble friend will feel that that assurance is satisfactory to meet her concerns, and that she will not feel that she must press the amendment.

Baroness Whitaker

I thank my noble and learned friend the Attorney-General. I am sure that the Government will consult the OECD's evaluation mechanism to assure themselves that they are in compliance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 107 agreed to.

Clause 108 [Bribery and corruption committed outside the UK]:

[Amendment No. 179 had been withdrawn from the Marshalled List.]

[Amendments Nos. 180 to 183 not moved.]

Clause 108 agreed to.

Lord Dixon-Smith moved Amendment No. 184: After Clause 108, insert the following new clause— SECTION 107 OR 108 OFFENCES

  1. (1) No prosecution for an offence under section 107 or 108 shall be instituted except by, or with the consent of, the Attorney General.
  2. (2) The Secretary of State shall lay before both Houses of Parliament at least once every twelve months a report on any prosecutions arising under section 107 or 108."
The noble Lord said: The reasoning behind the amendment lies in the brutal reality that the intention behind Clauses 107 and 108 is entirely good and ought to be supported. As has been pointed out, the OECD wants adoption of such measures by all of its members. If a country such as the UK is not playing a leading part in that, we cannot hold our heads high.

We must consider the words of the clauses and what happens in the world. Clause 107 states: For the purposes of any common law offence of bribery it is immaterial if the functions of the person who receives or is offered a reward have no connection with the United Kingdom and are carried out in a country or territory outside the United Kingdom". Clause 108 begins by stating: This section applies if … a national of the United Kingdom or a body incorporated under the law of any part of the United Kingdom does anything in a country or territory outside the United kingdom, and … the act would, if done in the United Kingdom, constitute a corruption offence … In such a case … the act constitutes the offence concerned, and … proceedings for the offence may be taken in the United Kingdom". All of that is straightforward.

However, one needs to think a little about it. Let us consider, say, a hydro-electric dam in the back country of one of the many remoter nations of the world. A small part in the electric generation equipment packs up and the power of the dam to continue generating is endangered. Let us say that the part was British equipment and the British agent immediately sent for the spare part which may have a low value. Let us assume that when the telegraph comes to this country the spare part is loaded up and packed on a plane. It flies off, arrives at an airport in the third-world country and the part disappears into a warehouse at the airport. As a matter of normal practice, it is unlikely to emerge without the payment of a small sum of money to facilitate the speed of passage.

That could lead to an offence of bribery in this country. One might say that in absolute terms that is correct. However, if such cases happened to every firm in this country which traded internationally, the British courts would be overburdened with many, in one sense, trivial matters. However, in another sense, they are significant trading matters because if one cannot supply such parts quickly—if hydro-electric power stations were unable to run for the want of a nail, as the saying goes—they rapidly damage the trading reputation of this country.

The purpose of Amendment No. 184, therefore, was not to do anything to stop the possibility of such cases. However, if we invited the noble and learned Lord the Attorney-General to consider whether the case was in the best interests of the nation as a whole it might prevent some of the de minimis cases being brought. Let us suppose, for example, that we are asked to provide a new hydro-electric generating station worth hundreds of millions of pounds and in order to facilitate that contract a considerable sum of money were passed. It might then be deemed to be proper that a case should be brought.

Bearing in mind the distinction between those two levels of corruption, both of which in principle are the same but in impact are dramatically different, we thought it was worth while tabling a clause of this nature. We want to provide a limited check which we hope will prevent the bringing of many small cases with which no one could quarrel in principle but in practice would not do anyone a great deal of good. I beg to move.

Lord Monson

I would not like it to be thought that the addition of my name almost exclusively to these amendments indicates that I consider Part 12 to be the most important part of the Bill. Most emphatically that is not the case. The problem is that the Bill has been rushed through so rapidly that it is difficult for a mere Back-Bencher to keep pace with it.

At Second Reading, the noble Lord, Lord Goodhart, speaking from the Liberal Democrat Front Bench, said that:

What the Government have done with the Bill is to use 11th September to resurrect bits and pieces of legislation which have little or nothing to do with terrorism and tack them on to what is supposed to be an emergency Bill". Rather illogically, he went on to say in relation to Part 12: Although we agree that it is technically out of place in an emergency Bill it does not require much further debate and is unlikely to take up much time".—[Official Report, 27/11/01; col. 268.] Even if that is true—I dispute it to some extent—I cannot agree that this justifies rushing through the changes under the umbrella of anti-terrorism legislation.

It used to be generally agreed that extraterritorial jurisdiction is inherently undesirable and should be confined to such serious offences as murder, torture, war crimes and, more recently, paedophile offences against small children. I do not believe that in general corruption comes remotely into that league. As the noble Lord, Lord Dixon-Smith, pointed out, the problem is that there are no de minimis provisions in the clauses as they stand.

I was about to cite a scenario almost identical to that referred to by the noble Lord. Perhaps he has borrowed something from me. But is it right that a British civil engineer, such as the one cited by the noble Lord, who distributes the equivalent of a few fivers or tenners to secure clearance of vitally needed equipment from a Customs shed, should be subjected to the full rigours of extraterritorial jurisdiction?

If these provisions are to be approved they should be confined to cases involving really large amounts of money—thousands or tens of thousands of pounds—not two or three-digit sums. Exceptions to Amendment No. 184, in conjunction with Amendment No. 183, which the noble Lord saw fit not to move but which I believe is a very good one, would go a long way to prevent a legislative sledgehammer being misused to crack a tiny nut.

11.15 p.m.

Lord Thomas of Gresford

In the spirit of inquiry only, I should be grateful if the noble and learned Lord can tell the Committee whether his consent is required for any of the prevention of corruption legislation. If so, why is there a distinction in this particular provision?

Lord Goldsmith

The answer is that there are already two statutory schemes under the 1899 Act, as amended by the 1916 Act and the 1906 Act. Both require the consent of the Attorney-General. That is also what will happen under Clauses 107 and 108, because they operate in effect by way of amending those Acts or treating certain matters as falling within them. Therefore, the Government agree with what they take to be the spirit of the first part of the amendment moved by the noble Lord, Lord Dixon-Smith; namely, that a Law Officer's consent should be required. In saying that I do not intend either to bind myself or any successor as to any particular application of the consent. The fact I say that does not mean that the examples he gives are necessarily the way in which Law Officers' consent would apply. I am sure the noble Lord understands why I say that. It is right, therefore, that there is no need to put in that part of the amendment to deal with the basic offences.

For the sake of completeness, I should point out that there is a small anomaly. There is also the common law offence to which I referred earlier that could arise in certain circumstances. That does not require the consent of a Law Officer because common law offences do not require it. It arises as a matter of statute. However, at least in cases where a common law offence is being brought to avoid one of the issues in the statutory offence—which is that there is a presumption that may not be thought to be appropriate—it is the practice of the Crown Prosecution Service to ensure that they are brought to the attention of the Law Officers.

As Attorney-General I always have power to stop any prosecution, whether or not I have a statutory power of consent, by way of nolle prosequi. In practical terms even in that case it is possible. The Government do not believe that it would be appropriate to try to deal with that anomaly in this Bill, but when there is a more widescale reform of the corruption law, to which I referred earlier—the intention is to have a single offence of corruption which would sweep all this together—the Government believe that it should remain subject to consent by Law Officers.

I hope that that meets the first part of what was said by the noble Lord, Lord Dixon-Smith.

Before turning to the second part, perhaps I may say to the noble Lord, Lord Monson, that I hope to assist him in the consideration of his concerns over rushing through changes. The changes here were well considered before the Law Commission report and the White Paper produced in mid-2000, which signalled the changes so far as their appearance in this Bill is concerned. That was made clear in another place. The Front Benches of the two main parties were invited to consider in effect the inclusion of this part in the Bill. Cross-party support has been expressed for this part of the Bill and I understand that the position is that neither side has any difficulty over it remaining. I hope that that is of some assistance to the noble Lord.

Perhaps I may turn to the second part of the new clause. The noble Lord, Lord Dixon-Smith, did not address any particular comments to it, but I shall let him know what the Government's position would be. We do not think that an annual report to Parliament would be justified. The total number of persons proceeded against under the Acts in the year 2000 was some 17, which is a relatively modest number. Some idea of the additional number who might be proceeded against as a result of the Bill could be gauged from what has been the experience of the United States. It has proceeded against only two or three cases of overseas bribery per year. One can draw from that what conclusions one will. In any event, the Government's view is that a reporting requirement, given the small number of cases envisaged, is not justified. For that reason, we would not accept that part of the new clause.

I hope that overall my remarks have been sufficient to persuade the noble Lord to withdraw his amendment.

Lord Dixon-Smith

I am grateful to the noble and learned Lord the Attorney-General for his explanation. His assurances will apply not only to myself but equally and as beneficially to those who have prompted me to table the amendment.

I am grateful to the noble Lord, Lord Monson, for his support. Of course the noble Lord has supported a proposition which we have been arguing throughout our deliberations on the Bill; that is, the question of putting elements into the legislation that really have no business to be there. However, as the noble and learned Lord has said, it is a fact that the Front Benches of another place were agreed that this should be included in the legislation. That was why I did not mention that particular piece of the background.

Lord Goldsmith

I thank the noble Lord for giving way. Would he be kind enough to confirm, as I believe it to be the case, that the Front Benches in this House were also involved in those discussions?

Lord Dixon-Smith

I can speak only for my own part. I was made aware of the discussions after they had taken place. Be that as it may, I am absolutely satisfied with the outcome. Equally, I am satisfied with the explanation offered by the noble and learned Lord regarding the lack of need for an annual report. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 109 agreed to.

Clauses 121 and 122 agreed to.

Schedule 8 agreed to.

Clause 123 agreed to.

Clause 124 [Commencement]:

[Amendment No. 184A not moved.]

Clause 124 agreed to.

Lord Dixon-Smith moved Amendment No. 185: After Clause 124, insert the following new clause—

COMMENCEMENT OF PART 5 Part 5 of this Act shall not come into force until the Secretary of State has conducted a consultation exercise on its provisions with the following bodies, and placed a copy of their responses in the Libraries of the two Houses of Parliament—

  1. (a) The Law Society,
  2. (b) The Bar Association,
  3. (c) The Justices' Clerks,
  4. (d) The Districts Judges (Magistrates' Courts),
  5. (e) The Lay Magistracy, and
  6. (f) The Crown Court Judges."

The noble Lord said: The amendment refers to Part 5 of the Bill, which deals with race and religion. It always seems to me to be gloriously inconsistent to propose amendments to a part of the Bill that one would prefer not to see in the legislation in the first place. However, we believe that it is worth while bringing forward this amendment because of the acute difficulty of a possible conflict between freedom of speech and the possibility that that may verge on or merge into incitement.

The amendment seeks to ensure that before Part 5 of the Bill—if Part 5 survives—is implemented, there shall be the widest possible consultation with, particularly, those bodies of the law which would have to face the difficulties in court of dealing with the consequences of what we had agreed. That is the very simple purpose of the amendment.

The amendment does not specify that the consultation has to be agreed to or anything else; it simply says that there should be consultation and the results placed in the Libraries of the two Houses. It is a simple requirement which could reasonably be complied with. It may well be that the consultation will take place anyway without any need for the amendment. If that happens to be the case, no one will be more delighted than I. I beg to move.

Lord Monson

I could speak for 10 or more minutes on this amendment and Part 5 of the Bill generally, but I would not be popular with the Committee if I were to do so at this time of day—or, indeed, at any other time of day.

Perhaps I may draw the Committee's attention to a fact which, as far as I am aware, was not raised either at Second Reading or during the first day in Committee when Part 5 was largely dealt with. It has been an offence since 1987 in Northern Ireland—the order was passed in 1986 but came into effect in 1987—to "stir up" religious hatred. "Stir up" is an interesting verbal construction in so far as it implies that the hatred is already there, bubbling away beneath the surface, ready to be stirred up at any moment. But this is perhaps not the moment to go further into that.

However, in 13 years there have been only four convictions, and the longest sentence imposed was six months imprisonment. Bearing in mind the perennial passions aroused by religion in Northern Ireland when compared to England and Wales and, to a slightly lesser extent, Scotland, two conclusions can be drawn. The first is that such legislation is scarcely necessary; the second is that experience proves that in the rare cases of conviction a two-year maximum sentence is more than adequate. Seven years is quite unnecessary.

Lord Goldsmith

The amendment seeks to stop both the incitement to religious hatred and the religiously aggravated offences in Part 5 from coming into force until after a formal consultation process has taken place. It ill becomes a lawyer like me to take issue with the noble Lord, Lord Dixon-Smith, for describing the consultation recommended in the amendment as "the widest possible consultation", but it is a consultation which consists solely of lawyers. If one were going to have a consultation, one would think in terms of a much wider group in any event, including those in the community.

Given that I was privileged to be the chairman of the Bar Council, as a matter of personal pride I should have liked to have seen it described by its proper name rather than as the "Bar Association". That sounds to me a much less distinguished body than the one I was privileged to lead.

I do not want to repeat what I said at Second Reading and during the first day in Committee on this part of the Bill—I wish simply to summarise—but the critical point is that there are people who have already sought to incite hatred against religious groups and to drive divisions between communities in this country. There are consistent reports of assaults motivated by religious hatred and of churches and mosques being attacked and damaged. The reality is that some law-abiding, peaceful people are in fear of their lives because others wrongly associate their religion with terrorism. That is why these provisions are included in the Bill. It is why we want the provision to which the amendment relates—if Members in both Houses are content that it should remain in the Bill—to come into force not in three months' time after a group of lawyers, however distinguished, have been consulted, but now.

I draw attention to the point made by the noble Lord, Lord Dixon-Smith, that this is rather an odd amendment in any event. It does not require any agreement. It does not require any particular review after the agreement. It simply imposes a delay while a particular group of people are consulted before the provisions can come into force. If those provisions should come into force, as we have suggested that they should in order to deal with a present situation, they should not be delayed for this process of consultation. I recognise that there was a slower process of consultation in 1998 in relation to racially aggravated offences. But that is not the position that we believe we are in at the moment.

In short, the amendment would do no more than delay the coming into force of the provisions. If, as we hope, Members will be persuaded that they should come into force, they should not be delayed by this particular process

Incitement to religious hatred is not a new idea. It goes back at least to the Law Commission's report on blasphemy, where the subject was first raised. It has been touched on from time to time since then, and the proposed framework—as I ventured to suggest previously—is the tried and tested framework for incitement to racial hatred and racially aggravated offences. So the principles and the framework are there already. I suggest, therefore, that there is no need to consult on that framework, and I invite the noble Lord to withdraw his amendment.

I acknowledge the remarks made by the noble Lord, Lord Monson. Again, without responding directly to what he said, perhaps I may respectfully direct his attention to my remarks at Second Reading and on the first day in Committee, when I set out the Government's response to the points that he has made as to the importance of these issues. I hope that that will be of assistance.

Lord Dixon-Smith

I am grateful to the noble and learned Lord the Attorney-General. I apologise profoundly to him for making a mistake over the title of the Bar Council. I am in fact responsible neither for drafting the amendment nor for its being before the Committee. So I plead complete ignorance in every sense of the term.

I am satisfied with the noble and learned Lord's explanation. With that background, and at this hour, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 185A and 185E not moved.]

Clauses 125 and 126 agreed to.

House resumed: Bill reported with an amendment.

House adjourned at twenty-five minutes before midnight.