My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

• Waste and Emissions Trading Act 2003,
• Arms Control and Disarmament (Inspections) Act 2003,
• European Union (Accessions) Act 2003,
• Fire Services Act 2003.

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

My Lords, perhaps the noble and learned Lord will forgive me; I am not a lawyer. How far are the rights to undertake such surveillance limited to the purpose for which the agency was created? How far is it limited in such a way that those investigations cannot go beyond that particular purpose? Finally, does there need to be evidence to show that there may be reasons to believe that a criminal act—for example, in the case of an unregistered childminder—has been suspected, so that this is not an open mandate to that agency to investigate every household in which there may be children?

My Lords, it certainly is not an open licence. Perhaps I may take the questions asked by the noble Baroness, Lady Williams, in two parts. First, are agencies limited to their own statutory functions? The answer is absolutely yes. They have the powers to carry out their particular functions and no others. I am grateful to the noble Baroness for asking the question. In addition to the requirement that surveillance should be necessary for one of the listed purposes, it must also be within the functions of that particular agency. In relation to a particular agency, there may be only one listed purpose—namely, the prevention of crime—and no other. There are several layers of requirement.

Secondly, surveillance must be necessary for that purpose and proportionate. I would not say that a particular agency might not take the view that it is necessary by reason of knowledge about an individual or that it is necessary to use the powers in a particular case. The agency would also need to be satisfied that it was proportionate to what was being considered. I would not go so far as to say that it must already have evidence of crime, but it would have to be satisfied that it is necessary for the purpose and proportionate to the use of that purpose. In considering whether it is proportionate, the agency would also have to consider whether there is some other way of obtaining the same information.

I hope that that at least goes quite a long way to reassuring the noble Baroness that these are strict and well defined requirements. I am grateful to her for giving me the opportunity to make the point that as well as the requirement in the Act—for example, the prevention of crime—each agency in each of these orders is limited by its own functions. We absolutely are not suggesting that the chief inspector should suddenly take on, for example, a roving brief to investigate any crime of any kind that he comes across.

Passing over the further examples that I offered to give—to which I will return if any noble Lord would like me to deal with those particular agencies or any other agency listed—we have also taken the opportunity to amend the definition of "local authority" so that it now excludes parish councils and a meeting of a parish council. That was following a recommendation made by the Chief Surveillance Commissioner in his annual report of 2001–02 to the Prime Minister. That undertaking was given in response to a Parliamentary Question answered by my right honourable friend the Home Secretary on 11th February 2003.

I turn now to the two issues with which I dealt under the first order. What about oversight? What about complaints? Oversight of the use of directed surveillance and the use of covert human intelligence sources falls, in the main, to the Chief Surveillance Commissioner by virtue of Section 62(1)(a) of the Act. That excludes those authorisations granted by the intelligence services, the MoD and Her Majesty's forces, which are overseen by the Intelligence Services Commissioner. Either way, there is oversight by a commissioner.

As regards complaints, again, the independent Investigatory Powers Tribunal is the appropriate forum to consider complaints. As I said on the first order, it has power to award compensation for unlawful use of powers against an individual.

My Lords, does the noble and learned Lord agree that if one does not know an abuse has taken place, it is not possible to complain? For every case that has gone before the tribunal to date, no single case has been found in favour of the complainant.

My Lords, I am grateful to the noble Baroness for giving me the information in her second point; I was unaware of it. No doubt, it will be checked. I take that as very reassuring. It indicates that the independent tribunal has not found evidence of misuse. I noticed that one or two noble Lords were amused by that remark, which I hope was because it was apposite rather than surprising. It certainly seems a proper response.

My Lords, perhaps I may return to a point the noble and learned Lord made before he was interrupted. He said that, within the context of the powers, the definition of a local authority had been changed to exclude a parish council or a parish meeting. Do we imply from that that these powers will be available to district councils?

Yes.

My Lords, everyone on this side of the House is saying, "Yes". I shall come back to that question in case there is an issue in relation to it. I am told that the answer is yes: I am delighted to say that there is unanimity on that point. I shall come back to the issues about where local authorities, at whatever level, have a role to play under these orders. One of the examples given in the consultation paper on the access to communications data is that of trading standards officers concerned with protecting people who may be at risk from those who provide defective gas installations. That may be something that local authorities will be responsible for policing and on which will need some powers in order to protect people. I shall come back to that when we deal with access to communication data.

My Lords, will the noble and learned Lord answer the first point of my noble friend Lady Blatch about how people will know whether there has been abuse or not?

My Lords, I am obliged. I did not intend to overlook that point. The noble Lord, Lord Elton, asked a supplementary question before I managed to answer the noble Baroness, Lady Blatch, fully. I want to deal with this issue more comprehensively. On looking at the powers of the oversight of the commissioner, we would expect commissioners to draw attention to abuses that they have discovered. I shall also come back to that issue later so that I can give a full answer. One of the difficulties of dealing with five orders together is the risk of moving from one to another. I want to be careful not to do that.

I repeat what I said in relation to the first order because it is apposite. It is another move to ensure that public authorities carry out their activities in a strictly regulated manner in a way that is consistent with the European Convention on Human Rights and Human Rights Act obligations. That is the purpose of the orders, which we believe they will achieve.

As we go through the orders, I want to make a general point. Of course, a great deal of the activity with which we are concerned is already capable of being carried out and is being carried out. In the orders, the Government are anxious to produce a strong regulatory framework, strictly regulated with requirements of necessity, proportionality and oversight. The whole framework of regulation should be ECHR compliant, which the 2000 Act sets down.

I turn now to the Regulation of Investigatory Powers (Communications Data) Order 2003. That was laid before Parliament on 1lth September. It is made under Sections 21(1), 25(2) and 25(3) and Section 78(5) of the Regulation of Investigatory Powers Act 2000. Approval of this order will enable implementation of Chapter II of Part I of the Regulation of Investigatory Powers Act. In the Government's view, that will bring long overdue regulation to public authorities' acquisition of communications data and will improve the protection of individual privacy rights.

The use of data, such as telephone and Internet subscriber information, itemised billing records—even mobile telephone location data—is a vital tool in the prevention and detection of crime and, in some cases, saves lives.

Communications data is information about communications. It is about who called whom, and when. It is not about the interception of communications—this is an extremely important point about which I want to leave no doubt. It is not about what is said in telephone calls or written in e-mails or letters. That is already regulated quite differently and very tightly by Chapter I of Part I of the 2000 Act. We are not concerned here with the content of phone calls and e-mails.

Parliament has already approved that certain authorities—the police, Customs and Excise, the intelligence agencies and the Inland Revenue—may, when the relevant provisions are implemented, use the Act to acquire communications data. The draft order designates additional relevant public authorities that may use the provisions. For all of these authorities, that is, both the existing authorities and the additional ones, the order restricts the purposes for which they can acquire data.

Further, the order will restrict the type of data that public authorities may acquire. Where an authority, or type of authority, has demonstrated a necessary and proportionate requirement for access to a type of data, the order provides for that, but not otherwise. It also restricts those persons who may use the powers to identified, designated senior authorising officers.

As I mentioned a few moments ago, I want to make clear a further point. The acquisition and use by public authorities of communications data is not new. Noble Lords have seen references to such access even this week, as we noted in the reports of a particular case. This activity already goes on, but it is not subject to the regulation set out in the Act; in effect, it is unregulated. Most of the public authorities listed in the draft order already seek communications data from communications service providers, using existing statutory information-gathering powers and by providers exercising exemptions to non-disclosure set out in the Data Protection Act 1998.

Some public authorities with statutory responsibilities for the investigation of specific offences have identified a necessary and proportionate requirement for acquisition of communications data in particular cases, but have chosen not to pursue that. Instead, they have elected to wait until they can demonstrate very clearly that they have assessed their requirements against the principles of the Human Rights Act 1998 and the convention, as the Regulation of Investigatory Powers Act explicitly requires.

The aim of the order, therefore, is to bring these public authorities within the strict control and oversight regime of the Regulation of Investigatory Powers Act. This means that all requisitions for the acquisition of data will have to be subject to the following requirements: first, they will have to be for a specific purpose, one that is drawn directly from the European Convention on Human Rights—such as the prevention of crime, matters of national security and so forth, as set out in the Act. Secondly, it must be necessary for one of those purposes—not simply desirable, but necessary. Thirdly, it must be proportionate to what is sought to be achieved by obtaining the data; a balance will have to be struck between the potential importance and the degree of intrusion. Finally, it will have to be authorised by an officer at a specific and senior level within the public authority.

The exercise of these powers will be subject to oversight by the Interception of Communications Commissioner, Sir Swinton Thomas, a former Lord Justice of Appeal in the Court of Appeal and a very distinguished and experienced High Court judge. He is obliged to keep under review the exercise and performance of powers and duties relating to the acquisition of communications data under Chapter II of Part I of the 2000 Act.

The commissioner must report to the Prime Minister if, at any time, it appears to him that there has been a contravention of the provisions of the Act relating to the acquisition of communications data. His annual report to Parliament on the interception of communications includes details of all errors that are made. It will be for the commissioner to determine how he should fulfil his obligations in respect of the acquisition of communications data—this has not arisen because we have not yet managed to put this part into force, which we are seeking to do by way of this order. It will be for him to determine how this is reported to Parliament and to consider whether, and the extent to which, he should notify individuals affected by any inappropriate or deliberate misuse of the provisions for access to communications data.

In answer to the question raised a little earlier by the noble Baroness, Lady Blatch, concerning access to communications data, it will be for the commissioner to decide the extent to which he thinks it right and appropriate to notify individuals affected by any inappropriate or deliberate misuse of the provisions for access. If so notified, those individuals will be in a position to act.

My Lords, I am very reluctant to interrupt the noble and learned Lord, but it may be helpful to the House if I were to question the advice the Attorney-General has just given. So far as I am aware, there is no right under Chapter II of Part I of the Act vis-à-vis communications data for the Interception of Communications Commissioner to inform a citizen whose information has been purloined of that fact. I make the point now because it may be possible for advice to be given to the noble and learned Lord by his officials. However, it is an important issue.

My Lords, I am grateful to the noble Lord for giving me notice of his point and I shall take up his proposal with regard to advice. Others have heard his question and I shall come back to it with an answer.

My Lords, while the noble and learned Lord is having a break, may I ask him whether he considers that the commissioner, who I understand has a staff of only four people and receives in the region of half a million inquiries every year, has sufficient capacity to deal with the work that he is expected to do?

My Lords, again, I shall take advice. However, I think the answer is that if the commissioner considers that he does not have adequate resources and staff to his job, then he will make that plain to the Government. I shall come back to the noble Countess if I can give her any further information. Certainly no one has suggested heretofore that the commissioner will not be in a position properly to carry out his important functions, ones which the Government now want him to be able to exercise in relation to access to communications data, which is in part why we have brought forward this order.

I shall make an additional point. Whatever the commissioner may decide to do, anyone who thinks that their data have been wrongly acquired will have the right to go to the Investigatory Powers Tribunal. The Home Secretary has made it quite clear that the commissioner will have the resources he needs to carry out his duties effectively; that is, to report to Parliament and the public. That is the assurance given by the Home Secretary. It corresponds exactly with what I have just said in response to the noble Countess, Lady Mar.

All the public authorities listed in this order must follow the procedures set down in the code of practice on acquisition of communications data explaining the statutory provisions in detail. A draft code has been published, has completed a public consultation exercise, and exists in draft for public authorities to follow. Further, the draft code will be laid before Parliament for approval.

In addition, public authorities may develop their own guidance material to foster professional standards. The Association of Chief Police Officers, working with the Association of Chief Police Officers in Scotland and Customs and Excise, has developed a manual of standards for accessing communications data under the Regulation of Investigatory Powers Act. That manual has already been published.

There are further administrative safeguards. These include a "double lock" safeguard where the acquisition of certain types of data, such as itemised call records, by certain authorities is granted only after prior approval by the Interception of Communications Commissioner. He will determine which authorities should be subject to such additional approval.

Specialist training for public authorities will support the proficient and appropriate use of the provisions, building on that developed jointly with the communications service industry by the police service and Customs and Excise. The accreditation of trained officials and authorising officers will ensure that those with legitimate and necessary access to such information know the legal and technical issues, which provides another safeguard. Accreditation of authorised officers will also support the authentication of disclosure notices served upon communications service providers.

I have spelt out a number of the safeguards that are in or lie behind the draft order. The regulation it provides and the clarity it introduces is welcomed by public authorities; it is welcomed by the communications service industry; and it was broadly welcomed by the public in response to the consultation issued by the Government last summer.

The scope of the order is constrained by what primary legislation permits it may cover. I know that in Committee in another place and in various public meetings concerns were expressed about the order. I anticipate that noble Lords will raise some of those concerns today and it may be helpful to noble Lords if I indicate the Government's response to them. This will enable noble Lords who wish to speak to them to know in advance the Government's position.

As we understand it, the concerns do not relate to the principle of regulating public authorities' acquisition of communications data—I hope that no one will disagree with the proposition that that is highly desirable—or the enhanced protection that will be provided to an individual's human rights. The concerns are not about what the order will put in place but about the practical arrangements and how the legislation will work in practice.

Let me deal with those concerns, one of which relates to the so-called legacy powers. At the moment, various public authorities undertaking their statutory function use powers that they have already for compulsory disclosure of information—usually defined in terms of information not restricted to communications data—to acquire communications data. RIPA approves a regulated scheme for acquisition of communications data which is specifically designed to be compliant with the purposes permitted by the ECHR.

The public authorities have identified that they can best demonstrate their compliance with the Human Rights Act by using the new specific legislation—the RIPA legislation—rather than relying, as they do now, on the pre-Human Rights Act legislation that gives access to this range of information. I hope noble Lords will agree that that is a very important step to bring their acquisition of communications data within the specific, human rights-compliant, regulated scheme.

But it would not be right to repeal the legislation that is already in existence—which still provides powers for necessary and proportionate disclosure of other information—because, since the introduction of the Human Rights Act, public authorities have to exercise those powers, however they are expressed, in accordance with that Act.

There has been only one example subsequent to the coming into force of the Human Rights Act and the passage of the Regulation of Investigatory Powers Act where Parliament approved specific provision—in the Social Security Fraud Act—for benefit fraud investigators, primarily those in the Department for Work and Pensions, to acquire communications data. That is why the Department for Work and Pensions and the Social Security Agency in Northern Ireland are absent from the public authorities listed in the schedule to the order.

These bodies have a requirement to acquire communications data to prevent and detect benefit fraud, and they intend to exercise that requirement using the legislation that Parliament has relatively recently approved—and, as I said, since RIPA and the Human Rights Act were passed—for that specific purpose.

I turn now to the next issue: for what purpose may data be acquired? I hope I have made it clear, because it runs through all that I am saying, that the permitted purposes under the Act are derived directly from Article 8.2 of the European convention. In their consultation paper the Government invited views on whether public authorities' access to communications data under the Act could be restricted not only by purpose but also by function. Although the functions of some public authorities can be captured in a way that is meaningful in law, the functions of many others responsible for enforcing wide and diverse pieces of legislation cannot.

The Government have concluded that it is not necessary to restrict by function because, as I said to the noble Baroness, Lady Williams, public authorities which try to do something that is not within their statutory remit would be acting ultra vires. They would not be acting in accordance with the law as required by the European convention and they could not properly and lawfully do so.

I know that there is some concern about the definition of communications data within Section 21 of the 2000 Act. The definition was deliberately conceived to be technology neutral and, as my note puts it, durable in a time of very rapid technological advance. Noble Lords will not need to be reminded how quickly this area can and does change—new methods of technology seem to come on stream all the time—and it was important that the definition should be neutral as to the form of technology so that it would be a durable provision. Parliament approved that definition rather than a complex and technically precise menu of categories of data. Those who work with the legislation will interpret the statutory definition. There was a guide to interpretation included in the consultation paper and, where necessary, the courts will interpret the definition.

I know that there is a concern about the transfer overseas of communications data. That subject will be raised later in an amendment and, given the length of time that I have been on my feet, I will deal with it when we come to that particular aspect.

The order represents a significant move to ensure protection and to ensure a regulated system of things which are happening already.

I turn now to the two orders arising under the Anti-terrorism, Crime and Security Act—that is, the Retention of Communications Data (Code of Practice) Order and the Retention of Communications Data (Extension of Initial Period) Order. I apologise for having to withdraw and relay the order originally laid on 11th September 2003. This was due to human error as the reference under Article 2 of the initial order for the code of practice did not precisely replicate the title of the code.

Part 11 of the 2001 Act allows for the publication of the code of practice for the voluntary retention of communications data by the communication service providers. It is not about the retention of the content of communications—it is not about the content of telephone calls and e-mails—but about the retention of related communications data such as telephone subscriber information, numbers dialled or addresses to which e-mails have been sent. It is, again, a vital tool in the investigation of terrorist incidents.

The purpose of the order is to bring into force the draft code of practice on the retention of communications data. The code relates to that information which is already kept by the communications service providers for their own business purposes. It does not require additional information to be stored. It sets out two matters: first, it identifies the kind of data that the Government would like to see retained by the communications service providers; secondly, it details the length of time for which they would like to see that data retained.

Terminologically, I should draw a distinction between "retention" and "preservation". "Data retention" means storage of everyone's communications data; "data preservation" relates to specific individuals—for example, those who are already under suspicion.

Past experience has shown that we are unlikely to know the identity of perpetrators of any attack at the time it takes place. Only painstaking investigative work after the event—which may depend upon identifying the communication trail of those who have committed such an outrage—will enable that to be done. The reason for the provision in the Act is the threat of terrorism. Regrettably, that threat is as clear and present today as it was when the Act was passed.

Sometimes this information may be the only piece of evidence that links a terrorist suspect to an attack. It may be available to identify any co-conspirator belonging to the same terrorist cell and ultimately it can provide clues as to how that cell links to others all over the world. There are many investigations in which the crucial steer for investigators has been communications data. I know that a number of issues have been raised about this—again, I will deal with them so far as they are raised by noble Lords.

Finally, the purpose of the Retention of Communications Data (Extension of Initial Period) Order is to extend the powers of the Secretary of State in Section 104 which would otherwise lapse on 14th December this year. It will extend those powers for a further two years. The powers in question allow the Secretary of State to give directions that he considers appropriate about the retention of communications data. Before using those powers, he must consult the communications service providers to whom it will apply.

The period of nearly two years between the passage of the Act and the presenting of the code to Parliament has been taken up with the consultative process required by the Act, but during that time the threat to the United Kingdom from terrorist activity has not diminished. This extension is necessary because by the time the voluntary code of practice has been in operation for three months and reviewed, the powers under Section 104 would have lapsed. It is essential that the Secretary of State should retain the ability to make such directions. I beg to move.

rose to move, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House declines to approve the draft order laid before the House on 11th September".

My Lords, given that the noble Baroness raised the question of the availability of the code, I should put it on record that the House authorities have made inquiries and are satisfied that the code was provided to the Printed Paper Office on 1lth September, and has been available ever since.

My Lords, the information that we had this morning was that it had been available since 18th September, but that does not alter the fact that those of us who asked for it have not received it.

The most extraordinary point that I want to raise relates to a Written Question put down by my noble friend Lord Skelmersdale, which was answered on 5th November, one week ago. The Question was as follows:

"Which orders give directions about retention of communications data under the Anti-terrorism, Crime and Security Act 2001; and on what dates such orders were made [HL5107]".

The Answer given by the noble Baroness, Lady Scotland, was:

"No orders giving such directions have been laid".—[Official Report, 5/11/03; col. WA 111]

That Answer came one week ago.

Even the Joint Committee on Human Rights, in its latest report, has argued that after a draft of the code has been laid and approved by resolution of each House of Parliament, the Secretary of State should bring the code into force by statutory instrument. As we all know, the code, unlike the order, is not subject to the parliamentary approval of both Houses.

Due to the emergency nature of the anti-terrorism Act itself, the parent Act, there has been insufficient discussion in both Houses. There was no discussion whatever in the House of Commons about the issue of retention. There was, fortunately, some discussion in this House, but there was not enough.

I turn, finally, to the orders dealing with retention. It would be wholly wrong to ratchet up the powers granted to law enforcement and government without ensuring that a correct balance is struck between those powers and individual rights. We have palpable concern that the proposals for data retention fail this test, as the Joint Committee on Human Rights said. It observed that it was not able to say that it was satisfied that the arrangements in the draft code would be proportionate to legitimate objectives. That should, and does, set alarm bells ringing as to whether it is right to pass these orders into law.

Contemplating the Retention of Communications Data (Extension of Initial Period) Order 2003, it is worth reminding ourselves of the thinking that underpinned the House's scrutiny of Part 11 of the Anti-terrorism, Crime and Security Act 2001. The Government's proposals for data retention were deemed a legitimate and appropriate response to the emergency situation. However, and evidently this is acceded to by the Government, it was also added that, because of the threat to civil liberties and individual rights posed by the proposals, it was appropriate to make any mandatory scheme specifically subject to a sunset clause. In fact, the presumption at the time, and certainly the impression conveyed by Ministers, was that not only could a voluntary scheme be put in place relatively quickly, but also that there were no reasons to move a mandatory scheme.

During your Lordships' scrutiny of Part 11 of the Act, the noble Lord, Lord Phillips of Sudbury, in particular sought to persuade the Government to recognise how muddled that approach was, not least because of the likely futility of a voluntary scheme and the absence of any proper linkage back to the Regulation of Investigatory Powers Act, the Data Protection Act and the Human Rights Act—a matter with which the noble Lord, Lord Lester, will no doubt deal in speaking to his amendment. For whatever reason, those warnings went unheeded. It cannot be denied that there is a serious tension between the passage of these orders and other statutes.

We are now nearly two years on and, contrary to expectation, the Home Office has so far been unable to initiate the voluntary scheme. Indeed, far from showing any sense of urgency, it could be said that they have been somewhat lackadaisical in their efforts to implement one. In these circumstances, we feel that it is inappropriate that the will of Parliament as expressed in the sunset clause—and I repeat that the Government have also acceded to this point—should be subverted for the convenience of the Home Office, the more so because it has demonstrated such a casual attitude. At the heart of this is the sense that, if data retention is so important and so urgent, two years should have been more than enough time to implement a voluntary scheme in the first instance. In effect, by accepting this order, we are circumventing the very purpose for which this House put the sunset clause on the face of the legislation. That strikes me as ludicrous.

I turn to the Retention of Communications Data (Code of Practice) Order. I have already suggested that a voluntary scheme for data retention is doomed to failure. In fact, I suspect that the Government have come to the same conclusion—that was more than hinted at in our meetings with officials. Bluntly, it is unsettling to realise that in all sorts of ways, the Home Office is only going through the motions of attempting to establish the voluntary scheme because it is the only route to what, despite protestations and commitments to the contrary, it has decided it wants all along— namely, a mandatory scheme.

However, be that as it may, it is generally recognised that very few, if any, communications service providers will sign up to a voluntary scheme. The reasons are obvious. The proposals are fraught with legal uncertainty, a matter with which, as I say, the noble Lord, Lord Lester, will no doubt deal in due course. There are myriad issues here, including potential breaches of Article 8 of the ECHR and so on. However, I shall confine myself to what I understand to be the nub of the issue.

Communications service providers will be legally required to retain data under the code of practice in breach of the provisions of the Data Protection Act. It is unreasonable to suppose that a CSP should be required to expose itself to that sort of liability. What flows naturally from that is that it is inconceivable that the voluntary scheme in the code of practice can be effective.

For avoidance of doubt, I repeat that we on these Benches are well seized of the significance and importance of data retention in the fight against crime and terrorism. We would welcome the opportunity to make common cause with the Government in implementing a scheme that is fit for the purpose and that strikes the right balance between the needs of the state and the rights of the citizen. Part 11 of the Anti-terrorism, Crime and Security Act and these orders are not such a scheme. It is in the gift of the Government to introduce a new Bill in the next Session to deal with this matter properly and sensibly. We would welcome that and we would give it all possible co-operation. In such circumstances, I can offer the Minister a guarantee. If such a Bill were to come forward, we would work tirelessly with the Government to ensure its enactment at the earliest opportunity.

I have covered many issues of real concern. There will be more elaboration by other noble Lords during our debate. My plea is to invite the noble and learned Lord to accept that there is real desire on our part to arrive at an effective, deliverable scheme with proper safeguards for the British people. I beg to move.

Moved, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House declines to approve the draft order laid before the House on 11th September".—(Baroness Blatch.)

My Lords—

My Lords, the original Question was that the draft order laid before the House on 1lth September be approved, since when an amendment has been moved, to leave out all the words after "That" and insert the words, "this House declines to approve the draft Order laid before the House on 11th September". The Question I now have to put is that this amendment be agreed to.

My Lords, I was trying to ask the noble Baroness a question before she sat down. Perhaps I can at least metaphorically ask her a question before she sits down. I should start by apologising for having missed the first two or three minutes of her speech.

Do I take it from what the noble Baroness has said this morning that the Front Bench of the Official Opposition are moving a fatal Motion on a statutory instrument? She will know, as I do—I have good cause to know—that throughout the whole period when we were in opposition we did not move a fatal amendment. We certainly did not vote on a fatal amendment. Indeed, there was a practice, verging on a convention of this House, that statutory instruments were not voted on in a fatal way. The only example I can think of in recent years, I suppose, involved the Rhodesia order in the mid-1960s.

If the noble Baroness will be kind enough to address herself to that question, I would be greatly obliged. Is it now the policy of the Official Opposition to move fatal amendments to statutory instruments in this House?

My Lords, I should like to ask the noble and learned Lord the Attorney-General a question on the intrusive surveillance order. Is there expected to be any provision by which the Northern Ireland Assembly will be able to monitor the activities of the Prison Service?

My Lords, I rise to speak to the amendment in my name on the Order Paper.

There is no doubt that communications data can be of immense help in the fight against terrorism and crime. None of us would disagree with that. Moreover, I readily accept that law enforcement agencies believe delivery of powers to retain and access data to be a matter of urgency. Equally, I am entirely happy to state my support for the underlying principle of the RIPA orders; namely, that activity which has thus far been unregulated should be regulated under a single— I repeat, single—procedure. Notwithstanding my support for those general principles, the devil is in the detail, as usual. Happily, the eloquent contribution of my noble friend Lady Blatch has covered many of the points of concern. It would be invidious for me to repeat her arguments. I merely say for the record that I wholeheartedly support and endorse her comments. That said, there are a few additional points that I believe are relevant.

There is a perception that the subject matter of all five of these orders is the exclusive province of "anoraks", or "geeks" or "techies". It is true that it would be quite easy to fall into the trap of mouthing incomprehensible techno-babble in speaking to them. However, I shall try to avoid that. Rather I think it useful to attempt to measure them against a statement of general principle. One that I have in mind is the following:

"Any limitations on individual freedom must be proportionate to the threat; they must be sanctioned by law and cannot take place on an ad hoc basis; and they must be implemented in a way which ensures that there are safeguards and that the activities of the executive are subject to monitoring, scrutiny and accountability".— [Official Report, 26/3/03; col. 852.]

Those are fine words, but they are certainly not mine. They are those of the noble and learned Lord the Lord Chancellor in March of this year in his then incarnation as a Home Office Minister. I think we can therefore safely assume that they are a fair representation of the Government's view.

Evidently these orders represent a "limitation on individual freedom". The Joint Committee on Human Rights has highlighted the fact that data retention and access raise,

"very important issues relating to the rights to respect for private life and for correspondence".

That being so, I fear that, as a generality, the orders do not stand up to the general statement of principle of the noble and learned Lord the Lord Chancellor. I quote again from the Joint Committee's report on the data retention orders:

"It is [therefore] particularly important to establish the necessity for and proportionality of standard retention of all communications data. However, we have insufficient information which would enable us to satisfy ourselves that those requirements are met".

Evidently there is doubt that the Government's proposals for data retention are "proportionate to the threat".

It is appropriate here for me to turn to the amendment in my name on the Order Paper. It is, of course, the case that in respect of the RIPA orders the Home Office is seeking to establish a single procedure for regulation of surveillance activity that is ECHR compliant. As I say, I adjudge that to be both welcome and desirable. However, because it has separate legislative provision under the Social Security Fraud Act 2001, the Department for Work and Pensions and the Northern Ireland social security investigators, in so far as they need access to communications data in their investigations, have elected to exclude themselves from the regime. To my mind that is nonsense. Either we have a single procedure with all—I stress "all"— appropriate public authorities bound by it, or we do not. Leaving the Department for Work and Pensions outside the regime wholly undermines the premise upon which this Home Office policy is based.

There is the additional problem here already mentioned by the noble and learned Lord the Attorney-General and by my noble friend Lady Blatch. In determining which public authorities should be included on the face of the communications data order, the Home Office has assumed that there is equivalence between information and communications data. The justification for inclusion of the authorities listed is that they have all been granted "information gathering" powers in previous legislation. Yet, as my noble friend observed, there are no plans to repeal or rescind any of the "legacy legislation" powers because, so the Home Office argues, information is a different commodity from communications data. The simple fact that the Department for Work and Pensions is outside the RIPA regime and a host of unregulated information-gathering powers remain in statute—again outside the RIPA regime—cannot mean anything other than that an ad hoc approach is being adopted to the whole issue.

I need not dwell on the issue of whether adequate safeguards are in place to protect individual rights. The noble Lord, Lord Lester of Herne Hill, will no doubt cover that ground much more adequately and with far more expertise and eloquence than I. However, I would just make one small point. It is important to realise that, by definition and of necessity, data access under the existing communications data proposals would be to all intents and purposes covert in character. Data subjects, individual citizens, can have no way of knowing whether or not their data have been accessed or for what purpose. That must be wrong. As I understand it, knowledge of this by an individual is a specific right granted by provisions in the Data Protection Act. To this extent the safeguards for the individual citizen are less robust than they should be.

There are considerable problems too with "monitoring, scrutiny and accountability" of both the retention and access regimes. I acknowledge that this is probably not relevant per se to the orders. Nevertheless it is important to understand the context in which the respective regimes will operate. It has been estimated that the Office of the Interception Commissioner will have oversight of more than a million surveillance requests per year, although I suspect that the Home Office considers that that figure is rather overstated. Whatever the true figure, even when properly resourced, it is unlikely that the office will be able to examine more than a fraction of the total requests made. It should be noted too that the Information Commissioner has already reported "significant" and "unacceptably high" numbers of errors in RIPA Part 1, Chapter I interception warrants. The Home Office, and, indeed, the noble and learned Lord the Attorney-General, may wish to parade the success rate of the interception of communications and investigatory powers tribunals as testimony of the robustness of this element of the oversight regime. However, for the convenience of the noble and learned Lord I confirm that of the 470 cases considered by them between 1996 and 2003, none was adjudicated in favour of the complainant.

As Dr Chris Pounder has observed—in contrast to the Attorney-General's view—

"This 100% 'perfection', like 100% support for Saddam Hussein in the recent 'presidential election' in Iraq, is simply not credible".

From a broader perspective he adds:

"The oversight system is fragmented, overlaps and is riddled with competing bodies".

In effect there is a justifiable case for arguing that "monitoring, scrutiny and accountability" of the oversight regime is less than adequate.

I turn to a matter of which I have given the Government advance notice—the status of the orders in respect of the technical standards and regulations directives. I am extremely grateful to the noble Baroness, Lady Scotland, for the promptness of her written reply to me on that yesterday. None the less I think that it would be helpful if the noble and learned Lord the Attorney-General could state the position for the record.

My antipathy towards data retention as encapsulated in Part 11 of the Anti-terrorism, Crime and Security Act is well known. I stand by the remarks that I made at that Bill's Second Reading; namely, that the provisions fail four essential tests: those of effectiveness, necessity, proportionality and consequence. I need not rehearse those arguments here. They are a matter of record. Quite apart from that, as my noble friend Lady Blatch has already said, the implementation of the Government's voluntary scheme is an exercise in futility. It will be wholly ineffective if only because there is every prospect that very few, if any, CSPs will sign up to it. Nor should we lose sight of the fact that a form of data retention is already permitted under extant statute. As the Explanatory Notes to the Anti-terrorism, Crime and Security Bill stated:

"Whilst the Regulations permit the retention of communications data on national security and crime prevention grounds there is currently no general guidance given as to when these might apply".

To my perception the Government could more usefully have turned their attention to determining appropriate general guidance for the exercise of those extant powers rather than getting bogged down by their ill fated attempts to make credible sense of Part 11 of the Act. I have pursued this issue on a number of occasions and have yet to receive an adequate reply. So, can the noble and learned Lord now confirm that powers for data retention already exist, irrespective of the status of Part 11? Can he also confirm that, in so far as such powers do exist, they were exercised in the wake of the September 11th atrocity? Can he shed some light on the period of time for which these powers were granted, indeed, whether or not even now they are still being actively exercised in the interests of national security and criminal investigation? Can he indicate whether the exercise of retention powers has led directly to any arrests?

I have a host of other issues and concerns—the blurring of the data categories on the face of RIPA, the single point of contact arrangements, the absence of appropriate sanctions against abuse of the access regime, and so on. However, time is short and in the circumstances I refer to them only in passing. In sum, I have deep misgivings as to the wisdom of enacting the communications data order and the two data retention orders irrespective of whether they are amended. I ask myself a simple question; should flawed law be entrenched?

My Lords, I should like to speak to the two amendments in my name to the communications data order and the code of practice order. I am very pleased that the Official Opposition, led by the noble Baroness, Lady Blatch, and the noble Earl, Lord Northesk, have supported the principles underlying my amendments.

I am sorry that the noble Lord, Lord Richard, is not in his place when I say that my amendments are not fatal. I would not have dreamed of tabling fatal amendments unless the clock had stopped at 13 and we really were in George Orwell's world of Nineteen Eighty-Four. In those circumstances, I would have done, but I did not. My amendments are designed to send back the orders, to have them returned to us in a form that gives adequate respect to personal privacy.

It is very agreeable to be able to say that I am particularly glad that the noble and learned Lord the Attorney-General introduced the debate, not only because he and I are old and good friends, but because we were colleagues on the Joint Committee on Human Rights. I have no doubt about his personal commitment to human rights as Attorney-General, and it is very good that he should be dealing with the subject today.

As a member of that committee, I pay tribute to its chair, the right honourable Jean Corston MP. Although she is also chair of the Parliamentary Labour Party, she and my colleagues have always performed their jobs on the committee with conspicuous independence. We do not play politics, as I am sure that the noble Baroness, Lady Whitaker, who is a member of the committee, would confirm.

I said that the clock had not stopped at 13, as it did at the beginning of George Orwell's Nineteen Eighty-Four, but the debate raises very important issues about the right to personal privacy and the principles of legal certainty and proportionality to which the noble and learned Lord the Attorney-General referred. No one other than him has yet said something that I recognise; namely, that such orders are necessary to meet one important principle of the convention, that of legal certainty. That is to say that there has to be lawful authority for the kind of invasions of personal privacy that would otherwise not be regulated by law. Therefore, if one is to have a regime of this sort at all, such orders are certainly necessary. As the noble and learned Lord recognises, that leaves over the key issues of proportionality.

The House has the benefit of two reports that had not been before the other place when it debated the matter. The first is that of the Joint Committee on Human Rights of 10th November, and the second is that of the Joint Committee on Statutory Instruments of 12th November, although the subject matter of that came earlier. When the matter was debated by the Third Standing Committee on Delegated Legislation on 4th November, it was made clear that several Members of the other place wished to have the report of the Joint Committee on Human Rights before them before they approved the orders. However, they did not have that benefit.

That is why it is important in this House to give careful attention to what the Human Rights Committee said. Although reference has been made to part of the report, I would like to focus on the main issues, if I may without boring the House to death, so that the House fully understands the context. I was not present at the meeting that finalised the report on Monday, but I was present before that, and I respectfully agree with what my colleagues put in the report.

There are four main important issues. The first issue dealt with in the report was that:

"The communications providers which retain the communications data are nearly always likely to be private businesses rather than public officials. If they are not 'public authorities' for the purposes of the Human Rights Act 1998, they are not directly subject to the legal obligation imposed by section 6 of that Act to act compatibly with Convention rights".

The committee was concerned, because it is,

"unclear how the Draft Code would ensure that the state can discharge its obligations under ECHR Article 8 in relation to the retention and storage of the data".

The second important issue is that:

"It is not clear how the Draft Code's standard periods of retention would meet the requirement of proportionality",

in accordance with Article 8. The third issue is that:

"The availability of the communications data to agencies for purposes other than the protection of national security would call in question the legitimacy of the aim for which the data are to be retained, the necessity for that retention and its proportionality, all of which are elements",

required by our convention rights.

The fourth and final issue is that:

"It is not clear how thoroughly the consultation exercise required by section 103 of the Anti-terrorism, Crime and Security Act 2001 was carried out and how far the frui:s of it have been taken into account in the Draft Code".

I shall go back to the first issue, which is about the fact that the communications providers are mainly private and not public, and therefore not subject to direct liability under the Human Rights Act.

We asked the Government,

"whether it considered that service providers holding information for the purposes of the Anti-terrorism, Crime and Security Act 2001 were to be regarded as functional public authorities for the purposes of the Human Rights Act 1998. The Home Secretary told us that the Government takes the view that the retention of communications data by communications providers is 'a private function that arises out of the commercial service that the communication services providers provide"'.

We pointed out that that had "the disadvantage"—it is a serious one—that,

"the communications providers are not public authorities for that purpose and are not bound by… section 6 of the Human Rights Act".

We then pointed out that that makes it absolutely vital to ensure that other safeguards can deal with the problem that the communications providers are not public authorities yet can exercise the powers given to them under the orders. That is a real problem that the House needs to consider.

The more substantial matter is that of:

"Across-the-board standard retention periods for communications data in various categories".

As the House will know, in:

"Paragraphs 7 and 8 of the Draft Code … the Secretary of State considers it to be necessary for the purpose of national security for service providers to retain communications data for the periods set out in Appendix A to the Draft Code … This would not deal with the position under ECHR … and the Human Rights Act 1998. If a service provider is a functional public authority when retaining data for national security purposes, it would have to show both that the retention is necessary (… to a pressing social need) and proportionate … We therefore asked the Government why it considers that it would be proportionate to retain communications data by reference to across-the-board standard periods of time, without reference to the identity of the user of the service or the circumstances in which the communications took place".

We expressed the view that whether or not the service provider is a functional public authority, the state has an obligation under the convention to take positive steps to safeguard the service user's right to respect for private life and correspondence. I would be grateful if the noble and learned Lord the Attorney-General would confirm that it is the Government's view that they do have a policy of obligation, under Articles 1 and 8 of the convention, in that respect.

We also asked the Government whether, and if so why, they consider that a code that does not mention the requirement of proportionality would discharge the UK's international obligations. In paragraph 18 of our report, we give the Government's response. Although the following point has been partly quoted, I want to emphasise it because it illustrates the importance of our debate and the view taken by this House. We noted that the provisions had not been debated in another place at all and that after receiving evidence from the Home Office, we had not been able to establish for ourselves how pressing is the need or how often the police and the security and intelligence services find it necessary to make use of such data or are significantly hampered by their absence. We stated:

"Those matters seem to us to be relevant to the assessment, to be made by each House, of the necessity for the retention which would be sought by the Draft Code, and of the proportionality of the periods set for retention".

Having raised the issue clearly in our report, we hope that the noble and learned Lord the Attorney-General will give more than a blanket or general reply to our dilemma in paragraph 19 of the report. It is important that he satisfies the House on those matters.

We dealt thirdly with the equally important matter of the transfer of data from the terrorist context to other contexts, because of the interaction of the two statutes. We pointed out that the draft order would greatly extend the range of bodies by whom the data could be obtained and how they could be disclosed. The Home Secretary told us the Government do not intend to take any legal or technological measure to restrict the use of the data for national security purposes, because it is their view that if the data are available, they should be accessible to other public authorities for other purposes.

After considering the matter, we recognised that there may be cases not involving national security where it is necessary, as the noble and learned Lord the Attorney-General has submitted, that there should be access to that data; for example, for the investigation of a murder. We pointed out in the report that,

"we do not consider the relationship between the powers under the two Acts is as straightforward as the Government suggests".

Your Lordships can read that in paragraph 24 of the report.

The report goes on to state:

"It seems to us that the main safeguard against abuse of the power to access for non-national-security purposes communications data retained under the 2001 Act is the fact that any access will have to be authorised or required by a designated person in a public authority empowered to access such data by the 2000 Act. The designated person will be a public authority, bound by the Human Rights Act 1998".

I am sure that the noble and learned Lord the Attorney-General was gratified to read that:

"On balance, we were prepared to accept the Government's view that, as a matter of policy, it should be possible to have access to any communications which are available and are relevant to a case if those conditions are satisfied on the facts of a particular case".

We came to the conclusion that the safeguards already mentioned, plus the availability of judicial review of a notice or authorisation and the need to comply with the data protection legislation, are capable of being proportionate. I would be grateful if the noble and learned Lord the Attorney-General could tell the House exactly how the judicial review would provide an effective remedy in the sensitive context that we are discussing.

My Lords, the noble Lord quoted the conclusion from the Joint Committee's report. Would he agree that while it expressed the view that the safeguards are capable of being adequate, the conclusion of the committee was that, "on balance", it was "satisfied" that those safeguards,

"are likely to provide adequate safeguards for Convention rights"?

I am reading from paragraph 32 of the committee's conclusion. It is an important point.

My Lords, I was reading from paragraph 25. In that paragraph, we reported in the way in which I have just described. In paragraph 32, we reported in the way in which the noble and learned Lord the Attorney-General has quoted. I regard that as confirmation that, on balance, the requirement of proportionality would be satisfied, but perhaps I may ask the noble and learned Lord the Attorney-General exactly how he believes that the availability of judicial review could provide an effective safeguard. That is obviously important to this House.

I shall not detain the House much further on consultation. I shall not repeat the views that were expressed so eloquently by the noble Baroness, Lady Blatch, but in paragraph 30 of the report, we made an observation on the parliamentary procedure and stated:

"The total sitting period allowed for consideration of these proposals… amounts to about five weeks. In our view, this is not sufficient in view of the importance of the measures, their potential to affect human rights, and the long period of gestation of the proposals since December 2001".

The Joint Select Committee on Statutory Instruments was also concerned about that. The Government are therefore confronted by two watchdog bodies, neither of which has been satisfied by the manner in which the consultation on matters of such great importance to the citizen has been handled. I would be grateful if the noble and learned Lord the Attorney-General would express at least some regret on behalf of the Government at the way in which the matter has been handled. The other place has not been allowed to consider the proposals properly and it now requires us to do so in a hurry, not in terms of the length of the debate, but of the length of the consultation.

My Lords, I want to speak to the amendment standing in my name, which would amend in a non-fatal way the orders before us; in particular, the Regulation of Investigatory Powers (Communications Data) Order 2003. We are not staging in any sense a contest about who has the best civil libertarian credentials. Our debate might well have taken place during the course of the RIPA legislation itself. However, as the noble and learned Lord the Attorney-General has rightly said, and others have reflected, I not aware of any measure during my five years in this House where your Lordships' House has been so at sea for so much of the time. The issues with which we are contending are arcane, complicated and interlocking, and one of the dangers in such circumstances is that the politics of the issue does not reach the wider public. If ever a measure affected the wider public—not in thousands, but in millions, because the communications data of millions will be accessed under the order—this is it. However, as I have said, it is not a contest, but rather a challenge to try, even at the eleventh hour, to improve an order that everybody believes needs to be improved.

It would be cynical and irresponsible for us to pretend that we protect the citizen against abuse of his communications data while denying the selfsame citizen the information without which he cannot protect his personal data, because he will not know that an abuse and a breach has taken place. That is most vividly demonstrated by the whole tribunal mechanism to which the noble and learned Lord the Attorney-General referred in his opening remarks. The tribunal exists to protect aggrieved citizens. Section 65(4) of the Act states:

"The Tribunal is the appropriate forum for any complaint if it is a complaint by a person who is aggrieved by any conduct falling within"—

and so forth. I suggest that it is a farce to have that section and the others alongside it if there is no means of the citizen knowing of the abuse. Judge Brandeis of the Supreme Court said:

"Experience should teach us to be most on guard to protect liberty when the Government's purposes are beneficent".

And that they are beneficent there is no doubt. We support the broad thrust of the legislation in the orders, but this is a challenge to our ability.

While thanking Home Office officials for the help they have tried to give to those of us who are bemused by these orders, I remind the House that the Home Office has form when it comes to legislation of this kind. Perhaps I may take noble Lords' minds back to the Anti-terrorism, Crime and Security Act 2001. In my view, and in the view of many Members of this House, it was not proper, correct or right that on the back of emergency anti-terrorism legislation the Government should sweep up many petty offences which had nothing whatever to do with terrorism—

Hear, hear!

My Lords, if there is a touch of extra caution, that must be excused. In any event, we must be jealous and vigilant when liberties are at stake, particularly when seeing the libertarian woods for the bureaucratic and state trees is hugely difficult, as it is here.

Let me come to the point. What are the protections for a citizen whose communications data rights have been abused? First, the communications data definition in the RIPA is not at all clear. That is an impediment to the huge number of officials who under the order will have the right and duty to seek authorisation to tap into the communications data concerned.

Secondly, the Attorney-General repeats the mantra of proportionality. That is all very well because lawyers, particularly the able, senior lawyers such as himself and my noble friend Lord Lester, live by proportionality— they wake up breathing proportionality. However, the officials who will have to deal with this legislation are not chief constables and the like; they are middle-ranking civil servants. In the Charity Commission, their rank is PB5, if that means anything to your Lordships. That is a middle-ranking civil servant. It is totally excessive for the Government to place such huge reliance on this rubbery word that only expensive lawyers can understand—and even they cannot because they have to go to the House of Lords to have it decided.

Furthermore, the severe drawback in the regime on communications data compared with any other part of the RIPA is that there is no pre-event check on a decision made by a middle-ranking civil servant to seek authorisation. Under any other part of the Act, it is necessary to go to the Secretary of State for an interception warrant. That is a massive protection of the citizen because the Secretary of State will be extremely cautious and judicious in the way he exercises the power. Above all, if there is no second check, the matter is left solely in the hands of the official who is personally involved in wanting the information, and who may have an excessive zeal in relation to his actions. That is not good enough.

I have referred to the fact that without information, the tribunal protection which exists in the RIPA is useless. Furthermore, the Interceptions of Communications Commissioner has no duty to tell a citizen when his or her information has been purloined or otherwise abused. I am afraid to say that I take no solace from the point made by the noble and learned Lord the Attorney-General in his opening remarks that under Section 58(2)(a) he will be required to report to the Prime Minister. We achieved that change to the Bill. The duty report is in respect of contraventions of the provisions of the Act. That refers to the many criminal offences that are available as a protection for the citizen in all other parts of the Act except this. In Chapter 2 of Part 1 of the RIPA legislation there is no criminal offence. Therefore, I do not believe that there will be a duty to report to the Prime Minister because I do not believe that there will be contraventions within the technical meaning of that word.

Even if I am wrong on that, what solace to the citizen? The matter goes to the Prime Minister, but he has no duty to do anything in regard to it. There is a duty to report and the report is laid before Parliament. Jolly good, but there is no warrant in the legislation to name names in the report. The most recent report of the Interception of Communications Commissioner for 2002 is extraordinarily cautious in its detail. For example, at paragraph 34 he states:

"I can only provide the information on the total number of complaints made to the tribunal".

Nothing more. One assumes that the Interception Commissioner has a great body of people charging around the country seeing that nothing amiss is occurring. I have to tell the House that the staff available to the commissioner is not remotely sufficient to do that. At paragraph 7 of his recent report, he talks of his twice yearly visits to various bodies, which he names. He then states:

'"I then select, largely at random … a sample of warrants for close inspection".

Fair enough, but how big is the sample? And what about the majority—I suggest the vast majority—of matters which are not investigated at all? This is the only protection for the citizen against this massive extension of state surveillance. And it is a massive extension. We are not talking about 10,000, 20,000 or 50,000 because estimates from the industry are between 1 million and 1.5 million authorisations a year. I put it to the House that that is not good enough.

We then come to the question of whether the interception of communications data is important. There was a hint that it was pretty minor beer compared with interception, direct surveillance, covert human surveillance and so forth. I suppose in the sense that it does not go to the contents, that is a fair point. However, sometimes what is not said is more important than what is and often actions are more important than communications. Communications data include who, when, where and how any of us communicates at any time with any other person by any technological means. I am told by people in the industry that an extremely sensitive profile can be built up of any of us who uses any of those instruments frequently. There can be built up an extremely sensitive profile of our life patterns, our contacts, where we go and when we go—not why we go, but the "why" can be built up out of a great deal of data. The Rio Ferdinand case gave one a slight hint of the kind of thing that can occur.

Therefore, the reason for putting forward the amendment—I am grateful for the support of others who have spoken and I, in my turn, extend my support for their amending resolutions—is that there are simply not sufficient and adequate protections in place for the so-called "ordinary" citizen.

I extend to the noble and learned Lord the Attorney-General my deep sympathy for the fact that he is sitting where he is today. I would extend it to him even if he had had three years to prepare for the occasion. However, when he comes to respond, I should be grateful if he could say whether or not the Government would be minded to make a wilful or reckless abuse of the communications data chapter the subject of an offence. The same protection might be afforded as under the Data Protection Act, which, incidentally, provides all the protections that do not occur in relation to personal data. The protection would be that there would not be a prosecution without the consent of the Interception of Communications Commissioner or the Director of Public Prosecutions.

My Lords, my noble friend Lady Blatch delivered what I can describe only as a devastating attack on the way that this whole matter has been handled by the Home Office. I have every sympathy with the plea that she has made for the Government to take away these orders and think again. We have heard other attacks. My noble friend Lord Northesk and the noble Lord, Lord Phillips of Sudbury, have very much reinforced that case.

I ask only one question and, in a sense, I ask it of my noble friend Lady Blatch. I do so on behalf of the local authorities. I declare an interest in that I am a vice-president of the Local Government Association and a joint president of the Association of London Government.

Local authorities make regular use of the powers to intercept—in particular, with the communications data and the directed surveillance and covert human intelligence sources—frequently to detect and so prosecute serious fraud, which they are under a duty to do in order to protect local communities and local families. However, if the orders are now withdrawn, as has been sought, or if they are voted down—the noble Lord, Lord Richard, made the point that this is a somewhat unusual procedure—will local authorities continue to have the powers which they currently use?

Can I also be assured that there would be no lacuna between the powers being defeated today and the point at which the orders are brought back in a more acceptable form? Local authorities would be devastated if they found that suddenly their powers to detect rogue traders were stopped. Glass fitters have been mentioned. There is another case of an electricity fitter who left equipment in a thoroughly dangerous state. The only way that local authorities can get such people is through the use of telephone and other information. I hope that I can be given that assurance.

My Lords,—

My Lords, it may be for the convenience of the House if I respond to my noble friend, given that he directed the question to me. In the meetings that we have had, I have received reassurance on two points. One is that the RIPA scheme is doing no more than bringing under a single umbrella and a single regulatory framework all the organisations which currently have powers to seek and access information. It is absolutely true that no single power to access information is being rescinded as a result of the orders, and we believe that that is a problem. It means that the orders under which local authorities presently operate will continue and that there is respite time for the Government to take away the orders and bring them back in good order. However, in the mean time, having spoken to Home Office officials, my understanding is that local authorities will be able to continue to pursue crime and disorder in their localities.

My Lords, I believe that the noble Baroness is correct. I declare the interest that she has already declared to the House—that is, I am a Surveillance Commissioner. I operate under Part 2 of RIPA and I have visited a very large number of local authorities under the aegis of the noble Lord, Lord Jenkin of Roding. I am sure that they will be able to continue to act in the way described, whether or not the orders are made. However, I wish to put in a word for the RIPA orders to be endorsed by this House. I shall do so very briefly, otherwise we shall never finish in time for the Law Lords.

The first one brings the intrusive surveillance procedures and safeguards in Northern Ireland prisons on to the same basis as prisons in England, Wales and Scotland. At present, there is no system to deal with that. I have talked to the Prison Service in Northern Ireland, which would benefit from having this power, and I am sure that the prisoners would benefit from the supervision that they would receive under that order.

So far as concerns the communications data order, there is, indeed, great confusion, particularly among local authorities and, I believe, other public bodies as well. Until Chapter 2 of Part 1 is brought into force, there is a very haphazard system whereby they can find out the type of information about which the noble Lord has just spoken. They need it to enforce their duties and the powers that they have under other legislation. Therefore, it would be very convenient for them, although perhaps not essential, that this order should be made.

I believe that the third order should be approved. It brings up to date Statutory Instrument 2417, which is now hopelessly out of date. It includes a whole collection of public authorities which no longer exist but it does not include many public authorities that do exist. The whole system of authorising officers needed to be reviewed, and a fourth column has now been included in the schedule, which describes under which category of necessity each public authority can operate. All those issues will make for greater clarity, will bring the measure up to date and will make it far easier to carry out the duties that the Office of Surveillance Commissioners must carry out under Part 2. It would be the greatest possible pity if the order were to fail.

I do not want to say very much about the Anti-terrorism, Crime and Security Act matters because they are not in the least within my jurisdiction or much within my knowledge. However, I believe that two things could be said. Earlier, a noble Lord said that there are a large number of commissioners and other bodies that supervise this whole matter. So there are, and one will now be the Information Commissioner under the orders and procedures that occur in Part 11 of the 2001 Act.

I want to ask the noble and learned Lord the Attorney-General a question. There is now a directive—2002/58/ EC—which pulls together this whole matter. Having read it, it seems to me to provide a very sensible regime— probably rather better than cobbling together Part 11 of the 2001 Act with the Data Protection Act, which, although it bears some resemblance to the ECHR regime, certainly preceded it and is not entirely in tune with it. When will the directive be implemented? It would take the place of both these matters; it is entirely up to date; and it should have been introduced in this country by 31st October last. Perhaps that would be a good opportunity to reconsider this issue and pull together all the threads.

My Lords, briefly, I support the amendment of the noble Lord, Lord Phillips of Sudbury. My personal concern is that there are still inadequate safeguards for the individual citizen against the possibility that those gathering permitted information may accidentally or deliberately come across data of a personal or market-sensitive nature which they can obviously exploit.

My Lords, I want to make one or two comments on the commercial side of this subject. I shall not take very long because I agree with, and shall heartily support, everything that has been said so far.

In principle, like everyone else I thought that the concept of RIPA was good as it would bring everything together. Then I suddenly remembered the old saying: "Just because you are paranoid doesn't mean to say they're not out to get you". So, what is the fear?

My remarks will address the second order, the Regulation of Investigatory Powers (Communications Data) Order 2003. As the noble Lord, Lord Phillips, so accurately said, the terms of the order enable a picture to be built up of a person's life. The definition of data which fall within Section 24(4)(a)(b) will determine the information district authorities and people working at fairly low levels can obtain to build up a picture of someone's life. Some of that could be commercially sensitive, and on this point I agree with my noble friend Lord Cobbold.

Unscrupulous people could build up a picture of someone's life. For example, a person trying to "chase up" a divorce case, who knew someone at the right level in the local authority, could, if the right data were released, obtain a picture of when and where someone was at a particular time and with who they communicated. As has been mentioned, from the point of view of foreign agencies and commercial intelligence, it could be useful to know who senior executives are talking to in other companies, particularly if one were bidding for large contracts. One would be able to build up a picture of what was going on. I do not think people realise how much intelligence information is gathered from analysing publicly available data. The order would make a lot of data more or less publicly available, particularly if one was abroad because of the lower level of scrutiny. Assurances on that point would be useful.

The key words here are "strictly regulated", on which I agree with the noble and learned Lord the Attorney-General. The problem is the word 'strictly". I am concerned about self-authorisation—authorities will authorise themselves to proceed with inquiries— and the word "proportionate". Thousands of people will be involved. The police, four other bodies and intelligence services will be authorised under RIPA. This will add another 28 bodies or types of body to that. Will the people who are trained to carry out such authorisations understand the word "proportionate" and what that is to mean?

I am told that there will be checks from around eight oversight bodies. However, according to Home Office figures, we are talking of half a million general requests per year. That is some 2,500 inquiries per working day. Not many of those will be got through and checked by just four people. I do not know what the resources are, but that needs to be considered.

There is no requirement in the code of practice to report to the oversight bodies what one is up to; they will have to come in and investigate. The other point is that you do not know what it is that you do not know. Will you catch in your trawl what is going on?

One of the interesting points made is that if we do not pass the order it will cause a lot of trouble but that it does not really matter because the police carry out 85 to 90 per cent of the requests. I find that interesting. If only 10 per cent of requests are to come from all the other bodies, why are they not channelled through the police, who would do a brilliant job of ensuring that other authorities are not abusing their power? Police services would have to be increased slightly to do that, but it would be a wonderful check. I would prefer checks to be done by the police than by an outside body. The other threat is that we should have to proceed under the existing powers of PACE: and so forth, and for authorisations to be carried out by circuit judges. That would be wonderful as there would be yet more checks. We are removing the checks and balances, which concerns me.

We are talking about people trying to investigate information on other people—communications data are a subdivision of that. This is where I find real difficulty with the comments of the noble and learned Lord the Attorney-General. On the one hand he says that we need RIPA in order to be compliant with the ECHR. Part of the ECHR concerns the right to a personal and private life. Therefore, paper files are equally relevant to the ECHR. Either these powers are ECHR compliant, in which case RIPA is not so urgent, or they are not, in which case they have to be repealed and come under RIPA, and requests for all information on a person must be regulated by RIPA.

Equally, if it is so important to bring all of this under one umbrella—I echo the noble Earl, Lord Northesk— so that the communication service providers (CSPs) know what they are doing and there is one single training process, why are we excluding the Department for Work and Pensions? Unfortunately, we did not realise the implications when this was slipped through. Therefore, it is no good saying that Parliament approved this. Parliament did not understand the implications at the time. A small Bill to remove those powers and bring them under RIPA is essential.

I have two final points. First, I do not know whether people realise but there are 500 to 600 small internet service providers (ISPs) employing five or fewer people. As these 2,500 inquiries go out, some of them will have to trawl for data and will have a serious problem responding to requests. I am not sure how they will handle that without going bankrupt.

Secondly, paragraph 32 of the code of practice states:

"Once the individual communication service provider has the technical capacity to retain data for the extended time periods-then the communication service provider shall inform existing and new customers that the purpose for retention and the periods of retention have been varied to meet with the needs of the Act".

There are no powers to do anything about that; they cannot reject it. Yet that means that everyone with a mobile telephone, an e-mail address and a landline telephone will have to be mailed or informed somehow by their CSP that information has been retained. There is nothing they can do about it anyway. What a waste of money. Of course, I may be wrong.

I do not understand the undue haste. Protections are in place. Interestingly, I learnt that at present, CSPs vet applications. Some are referred to the information commissioner under the Data Protection Act and some are turned down. So, we are not unprotected at present. Measures are in place. I believe that this is a better way to proceed and that this is the way forward for the future but we must get it right. I shall vote to approve the first order. I shall vote in favour of all the non-fatal amendments. I shall not vote for the fatal amendments, with the exception that I shall think about data retention.

My Lords, by the leave of the House I shall seek to respond briefly to the amendment in the name of the noble Earl, Lord Northesk, as it affects the Department for Work and Pensions. This was picked up by the noble Baroness and referred to as a major anomaly. That is why I intrude on your Lordships' time.

There has been no challenge that DWP needs the powers it has. I bridle a little at the assumption that your Lordships did not scrutinise the Bill. I remember vividly the noble Lord, Lord Higgins, pressing me on credit agencies, fishing trips and the like. But it was a Bill which passed through this House without Division.

No one denies that the powers that the DWP has are ECHR-compliant. No one would deny that fraud is a major concern of the department and of your Lordships costing perhaps £2 billion or very much more per year. Each year we initiate around 330,000 to 340,000 inquiries and take around 9,000 to prosecution. Therefore, given that communications information is vital to us, why are we not happy to accept the amendment standing in the name of the noble Earl, Lord Northesk?

The noble Earl raises three basic issues concerning RIPA: first, the issue of transparency and accountability, which was the particular concern of the noble Lord, Lord Phillips; secondly, cost; and, thirdly, effectiveness. As regards transparency and accountability, I am perfectly happy on behalf of my department to take away some of the concerns to see whether in the annual report to Parliament and the like we could increase the transparency of our procedures. That would be entirely proper. If I can meet the concerns of the House in that way I am very happy to do so and would do so in good faith.

However, I wish to explore briefly two other options. The first is that of cost. Ever since the foundation of the Department of Social Security in 1948, on behalf of taxpayers and to protect taxpayers, it has requested information as of right from employers for National Insurance purposes and from landlords for housing benefit and the like. If within RIPA we were required to pay, as we would be, for telecommunications details and then were not able to refuse similar requests from banks, building societies and other agencies which give us information about health, income, capital, identity, address and family circumstances—all of the bread-and-butter data of the department which piggybacks on other sources of information for the benefit of the taxpayer—we would face multi-million-pound bills in order to pay for what we currently get with consent in the public interest. So I urge the House not to go down that path.

The third consideration—to my mind the most important—is the consideration of effectiveness. As I say, we lose something like £2 billion—perhaps £4 billion—per year in fraud. We need this information. Since the enactment of the Social Security Fraud Act 2001 we have had an integrated, robust and effective structure for pursuing fraud. Let me give one example. Operation Utah was an investigation in which four defendants pleaded guilty to 25 charges of benefit fraud of a total overpayment of nearly a quarter of a million pounds. The Act was used for 42 credit references, 25 bank checks, eight credit finance checks and one telephone subscriber check.

Is the House really asking us to pay for each and every one of those checks? If so, does it then become financially worthwhile pursuing fraud, in particular low-level fraud? Is the House asking our staff— recently trained—to seek two sets of authorisation where now they operate within—thanks to the Act— an integrated and robust structure?

Let me explain to your Lordships what would happen if the House took the amendment on board. We would have to return to Parliament to change the legislative framework of the Social Security Fraud Act, within which we operate. We would probably have to change and amend the statutory code of guidance, which was the result of extensive consultation and laid before Parliament. On the ground we would require more senior staff and our recent training of staff would be wasted. We would have to retrain and restructure our existing fraud teams. Essentially, we would have to run two parallel routes to seek authorisation for data requests instead of, as now, one integrated coherent structure.

In other words, to bring telecommunications used by the department into RIPA, we would have to fragment our integrated coherent structure, which allowed us to be so effective with Operation Utah. As a result I suspect—I have checked this information this morning—we would disrupt the use of our fraud powers for anything up to three months.

My Lords, I am grateful to the noble Baroness for giving way. She has made coming under the RIPA regulatory framework sound extremely laborious, very time-consuming, extremely expensive in staffing and very expensive in terms of paying the providers. Do not these arguments apply to all other bodies which operate under different statutes? All the arguments put to us about coming under the regulatory framework indicate that it will not make any difference to these bodies, and that the position will not be as the noble Baroness has just described. It seems extraordinary that it should apply only to DWP and not to any other body.

My Lords, that is precisely why, as I was trying to say, our legislation was introduced in 2001; it is ECHR-compliant; and it builds on existing practices of obtaining the information which protects all our interests at no public expense. The noble Baroness may not like the information I am giving. It is information from my department about the implications on the ground of the cost, the laboriousness, the expense to staff training and our effectiveness. I know that the noble Baroness will not feel comfortable with any—

My Lords, is not this a very good argument for using the DWP model for the code of practice under RIPA, to bring everything into the DWP-type framework, and call that RIPA? Then everything is under a united umbrella. I have been told that the DWP has better procedures for checking the identity of a person making a request than those under the code of practice proposed under RIPA. So I am not against it at all.

My Lords, as I understand the position, one of the powers under RIPA is to require payment for all requests for such information. I spent some time trying to explain that since 1948 we have not, for the most part, paid for such information, whether to employers for information about national insurance and earnings, to landlords for information about housing benefit or to banks and building societies and so on. That was thoroughly discussed in your Lordships' House. It was recognised that, in pursuing the protection of taxpayers' financial interests, we all had a public policy duty to persist in allowing the department to acquire the information it needs. To do as the noble Earl, Lord Erroll. suggests would add to public cost, add to delay, add to complexity and would actually reduce the capacity of the department to be effective on the ground.

The noble Earl's amendment would be wholly negative and disrupt the Department for Work and Pensions' capacity to pursue and eradicate fraud. We have a good coherent, integrated and robust structure in place. To disrupt it now would be to undermine the very thing that this House has called for on several occasions, which is the effective and proper pursuit of fraud at the taxpayers' expense.

My Lords, perhaps I may clarify one point with the noble Baroness. The purpose underpinning my amendment is to make sure that, where the DWP has a need for access to communications data, communications data alone are brought within the RIPA regime. That is the logic of it. The rest of the DWP's investigatory activity would not be in any way affected. So I do not see how the nightmare scenario painted by the noble Baroness can be generated.

My Lords, I tried to give the answer in the example called Operation Utah. I could have given any other example. Our staff have a single route to acquire a range of data which include bank credit references, credit checks, information from building societies, information about utility bills to get people's addresses and so on. What the noble Earl's proposal—

My Lords, they are not covered by RIPA. That is the point.

My Lords, as I understand the position, RIPA would require us to seek to establish separate routes of authorisation and payment for the information we seek. Both would be severely disruptive and entirely negative for the department.

My Lords, I beg to move that the debate on the amendment of the noble Baroness, Lady Blatch, be adjourned.

My Lords, I beg to move that the House do now adjourn during pleasure.

asked Her Majesty's Government:

My Lords, the Government are committed to spending 90 per cent of Department for International Development country programmes in low-income countries by 2005–06. That, together with contributing to the cost of recovery in Iraq, is leading to some reductions in aid to other middle-income countries in future years.

My Lords, I thank the noble Baroness for that precise reply. On Monday, she told me that I had misunderstood the matter. I remind her that DfID stated to the International Development Select Committee—

Question!

My Lords, does the noble Baroness recall that DfID stated that it would clearly be wrong to consider withdrawing DfID funding from development efforts elsewhere in the world; that she said a week later that money for Iraq would come from DfID's reserves; and that the Prime Minister wrote to a director of Christian Aid on 25th April stating:

"Funds will not be redirected to Iraq from programmes supporting poor people elsewhere"?

Is that not clear?

As the security situation in Iraq worsens—

Order!

My Lords, you do not want to hear it, do you? What assurance can the noble Baroness give the House that the poorest people elsewhere in the world will not be affected by this situation?

My Lords, I shall repeat what I said on Monday. We are currently spending 78 per cent of our bilateral funding on the poorest countries in the world. We have a target to increase that to 90 per cent of our bilateral funding by 2005–06. That commitment remains. In addition, we shall be spending £1 billion in Africa by 2005–06. That commitment remains.

Again, as I said on Monday, we are considering our spending in middle-income countries. Iraq is a special case as a post-conflict country. That is the basis on which the World Bank will make a special case of Iraq for the next two years.

So our spending in middle-income countries for the current financial year will be sustained, but the ongoing reprioritisation—it is ongoing because we are moving from 78 per cent to 90 per cent—will continue. We will have to advance the closure of some programmes in middle-income countries to fund our programmes in Iraq as a special post-conflict country. That will not affect our commitment to the poorest countries in the world.

My Lords, in the light of the decision of the Red Cross and other charities to close their offices in Baghdad and Basra, what discussions have the Government had with non-governmental organisations about the reallocation of funding?

My Lords, we have had ongoing discussion with NGOs, especially about security issues in Iraq. In fact, we have told NGOs that we will help to fund some security measures that they need to put in place, and which can be expensive, to enable them to continue to work in Iraq. Several NGOs have expressed concern about our long-term programme in middle-income countries more generally, but that would have been the case regardless of the situation in Iraq.

My Lords, does not my noble friend agree that the best way to ensure effective aid in Iraq would be if all our allies, especially some other countries in the European Union, would accept all the obligations of the most recent Security Council resolution, which calls on them to provide all sorts of assistance to create the security environment in which that aid can be properly dispersed?

My Lords, I agree with my noble friend. The UN Security Council resolution put in place a framework that would enable other countries to engage more effectively with that agenda. We will continue to work with our partners to ensure that they can contribute to the longer-term future of Iraq.

My Lords, is there any truth in the reports that the Government are going to cut back the extremely important funding that they provide in support of the G7 pilot programme for the conservation of Brazilian rainforests? If so, why?

My Lords, that is not correct. A number of projects were agreed. They are all approaching the end of their funding period. Only one of them will undergo review because it has come to the end of its funding period, but it will continue. I will be happy to write to the noble Lord with details.

My Lords, in order to restore prosperity in Iraq, should not the priority be the restoration of the oilfields, which in the past have brought a good income to Iraq?

My Lords, the noble Lord is quite right. We need to ensure that Iraq's own resources, which will be fundamental for the longer-term development effort, are restored. Noble Lords will know that the current security situation and the ongoing programme of sabotage is the result of a deliberate effort to ensure that Iraqi resources cannot be used in that way.

My Lords, as the noble Baroness mentioned middle-income countries, what does she expect to be the effect of the money spent in Iraq on our aid to Latin America by 2005–06? In particular, Brazil has been mentioned as a middle-income country. Is she aware that some of the poorest people in the world are in middle-income countries such as Brazil?

My Lords, of course I am aware that there are poor people in many middle-income countries, but this country's strategy for our development effort has been clear. It was set out in our White Paper in 1997, when we stated that our core commitment was to the achievement of the Millennium Development Goals. The continent in the world in which we are least likely to achieve the Millennium Development Goals is sub-Saharan Africa. That is why our focus on increasing our spending in sub-Saharan Africa to £1 billion by 2005–06 remains.

It is important for noble Lords to remember that all our spending does not go through the bilateral route; 40 per cent of our expenditure goes through multilateral channels. As for Latin America, in 2001, our share of European Commission spending in Latin America was about £21 million. That level of spending will continue. The total for all multilaterals, including the Commission, was £49 million.

asked Her Majesty's Government:

My Lords, the report of my noble friend Lord Haskins was published on Tuesday. It recommended significant and wide-ranging changes to modernise the way in which government delivers rural policy. The Secretary of State's Statement in the House of Commons set out the Government's initial response. Her first priorities are immediately to review rural funding schemes and to set up an integrated agency to conserve and improve the natural environment. The Government will publish a practical implementation plan in the spring.

My Lords, what is the Minister's response to the remarks yesterday of the noble Lord, Lord Haskins, at the crops conference at which I spoke? He said:

"Defra will fall flat on its face when it tries to cope with CAP reform if it does not respond"—

that is, to his report. Secondly, the Minister said that the department will have a review and will be modernised, but that will not happen until next year. What urgent action will the Government take to address the description of the noble Lord, Lord Haskins, of Defra's current structure as,

"a dog's dinner of the highest order"?

My Lords, we asked the noble Lord, Lord Haskins, to look at the delivery of the policy and the mechanisms for delivery. Defra's inherited structure, particularly from MAFF, has long been recognised as in need of serious reform. But we should also look at each of the agencies and NDPBs involved in delivery and, as the noble Lord, Lord Haskins, said, bring delivery further down the line so that the regions and, to some extent, local authorities bring the action closer to rural businesses and farmers. That will take time, but we need to do it in parallel with the delivery of the change in the common agricultural policy, whose implementation starts at the beginning of 2005. We intend to clarify by then the proposed structure and to deliver the outcome of CAP reform in that way.

My Lords, does the Minister not agree with me that, if the Government are to remain consistent with their previous responses to other reports produced by the noble Lord, Lord Haskins, they have only option: to disregard completely this new tome from the noble Lord?

My Lords, I am not clear what report the noble Earl attempts to draw to our attention. We have had very effective reports from my noble friend Lord Haskins, particularly on recovery from foot and mouth disease, much of which was implemented and has guided government policy. That will also be the case with this report. We accept the broad principles of the report. We will need to sort out some details. But the most important thing is to find the best means of delivery for the best policy. Those two aspects need to be taken in parallel.

My Lords, although there are convincing arguments in the report about the devolution of the delivery of many rural services to a more local level, can the Minister assure us that there will be proper parliamentary debate before any firm changes are established? Is he aware of the strong need to maintain the autonomy and the expertise of English Nature, and to give a great deal of training to RDAs if they are to take over, with their present strong urban bias, the delivery of rural services?

My Lords, devolution of responsibility will need to be accompanied by an assurance that we have the correct staff in place with the correct orientation, towards rural business in particular. On English Nature, my right honourable friend the Secretary of State made clear that we will continue to rely heavily on independent advice from the new agency proposed by the noble Lord, Lord Haskins. General parliamentary debate is not a matter for me.

However, if we are to change the status of English Nature and other agencies, there will be legislative implications, which, I am sure, will receive thorough consideration by this House.

My Lords, there is an overdue need for the rationalisation of the plethora of local schemes and initiatives in the countryside. However, if responsibility for delivery is transferred from the centre to local authorities and the RDAs, will they have the necessary expertise? The existing agencies have that expertise at ground level. Can we ensure that it will survive after the changes are implemented?

My Lords, there is substantial expertise at the centre, both in the department and the agencies. The noble Lord, Lord Haskins, proposed that we bring those together and move them closer to where rural businesses operate and farming is carried out, so many of the same people will be involved and undoubtedly that expertise will be retained.

My Lords, there is no doubt that local authorities, as democratically elected bodies, are in a very good position to receive information from communities and to deliver services. However, can the Minister assure me that in this case the Government will not do their usual trick of asking local authorities to deliver an awful lot more with no extra money?

My Lords, that is not a correct description of providing greater powers to local authorities to deliver closer to where enterprises operate. If significant responsibilities for delivering schemes are devolved to local authorities, or indeed to RDAs, we will ensure that the resources go with them.

My Lords, what role will broadband play in delivering his department's services to small businesses, post offices, farmers and schools? I have read the report— cursorily, only twice—and can see no reference to easy broadband access for any of the units that would require its services.

My Lords, it is to be hoped that discussions on the changes to the CAP, for example, can be delivered via broadband to the central systems. We therefore need to provide farmers with the means to deal with detailed information, such as mapping, that can be delivered only through broadband. My colleagues in the DTI have committed themselves to ensuring that we get broadband to rural areas so that farmers and other rural businesses can take advantage of it.

My Lords, to what knowledge was the noble Lord, Lord Haskins, privy that was not available to Ministers when they created that dog's dinner, Defra?

My Lords, as the noble Lord will know, in the creation of government departments, we are often required to accept an inheritance that has had its own ethos and status for many years. Under all governments MAFF had operated in a certain way. There may have been an era when that was the appropriate way, but it was more akin to a Stalinist production ministry than to a department trying to engage the enterprise and creativity of our agricultural sector to meet the economic and environmental needs of the modern age. We had to live with that and to change it; we need to change it further. The insights of the noble Lord, Lord Haskins, have been very helpful in pointing the way.

asked Her Majesty's Government:

My Lords, the European Commission issued a consultation document in October covering the composition and labelling of yoghurt and yoghurt-like products. The Food Standards Agency is consulting interested parties on the document and will seek to ensure that the interests of UK consumers are fully taken into account.

My Lords, I thank the noble Lord for his Answer. However, how come all the information in press reports suggests that yoghurt must now be labelled as "fermented milk pudding", which would be a disaster for the British dairy industry? I hope that the Government can squash that rumour forthwith.

Does the Minister agree that the farming industry is going through very difficult times? It still awaits good leadership on the common agricultural policy and how the grants system will work. The National Farmers' Union has not been consulted in enough detail on the host of orders coming out of Brussels. Farmers are finding the provisions difficult, expensive and time-consuming to implement. It is time that the Government began to help agriculture instead of sitting on top of it.

My Lords, as I recall, the question was about yoghurt, which is what I proposed to respond to. The noble Lord may be aware that most of the yoghurt that we eat in this country is mild, using lactobacilli species other than the real McCoy, which is lactobacillus delbrueckii sub-species bulgaricus. Other countries who eat the real McCoy are very concerned that there should be no misleading labelling. Those countries are as entitled as this one to have their views considered by the Commission.

My Lords, can the Minister assure us that those plans will be reconsidered when, and if, Turkey joins the European Union?

My Lords, I have no idea how long the consultation process on the Commission's document will take.

My Lords, if the word "yoghurt" is a misleading description, does the noble Lord not agree that "fermented milk pudding" is even worse and more misleading?

My Lords, I have no idea whether we are going along the path of "fermented milk pudding", but I see nothing in this document to suggest that we are.

My Lords, does the Minister agree that it is an important scientific point that live yoghurt has been demonstrated to have pro-biotic qualities and is important in the treatment of conditions such as candidiasis? It is therefore important that consumers have full knowledge and choice. Does he agree that if we do not go down that route it will not be long before we have on our supermarket shelves small pots labelled "I can't believe it's not milk"?

My Lords, the noble: Baroness is exactly right. This issue is about the public not being misled by the labels on particular products. It is important that the public understand what they are eating.

My Lords, will not the Minister fight the corner of British producers to keep the name "yoghurt", which we all understand? Why have milk and milk chocolate been allowed to keep their names when people on the Continent view those products in a different light? Surely, what is good for the goose is good for the gander.

My Lords, noble Lords on the Benches opposite seem to get rather excited when any document emanates from the Commission. There is no plan to drop the word "yoghurt". We are considering only whether there are problems with products being properly labelled. I am confident that the term "yoghurt" will survive whatever the outcome of the consultation. The question is whether any qualifying words should be added to make it clear to the public what is in the container.

My Lords, is the Minister aware that the general public think that yoghurt is a healthy product? In view of the fact that one in three adults and one in four children are either overweight or obese, it is probably regarded as a good thing to eat yoghurt. However, there is a problem if it is labelled as fermented milk pudding because, by its nature, "pudding" means something that is fattening and not very good. The Government should resist any attempt, even if it does not come about, to ensure that we can still have our yoghurt.

My Lords, the Government's policy is that people should pursue a healthy balanced diet— children included. I do not know where this argument about fermented milk pudding comes from. It is not part of the consultation in which the Food Standards Agency is involved.

My Lords, is the Minister aware that behind these problems is a serious issue. I was with a manufacturer of healthy bacilli yesterday. It is a growing UK industry and also has great benefits in animal husbandry. The manufacturer said that it is now quite impossible to trade with Europe because the degree of regulation and complication has made it impossible to carry on any active trade in that area at all.

My Lords, I fundamentally disagree. This exercise it is about ensuring that consumers throughout Europe do not have misleading labels on their products.

My Lords, the Minister has said that he does not know where the term fermented milk pudding comes from. I flew back on a British Airways flight from Lyons on Monday and at lunchtime I was served exactly that—fermented milk pudding. It splattered all over me, which tends to happen on planes because of pressurisation.

My Lords, the fermented milk pudding eaters of this world should have their product properly labelled in the same way as consumers of yoghurt.

asked Her Majesty's Government:

My Lords, I have had several constructive meetings with the Lord Chief Justice about the constitutional reforms I announced to this House on 14th July. I expect to have further discussions. Protecting judicial independence is fundamental and was one of the principal reasons why the reforms were introduced. I am committed to ensuring that such independence is maintained and strengthened.

My Lords, I am grateful to the noble and learned Lord for that Answer. However, despite all the assurances given to the your Lordships' House, it is clear from the comments of the noble and learned Lord the Lord Chief Justice only last Friday that judicial independence is at risk from the Government's constitutional reforms. The Judges' Council report states that the reforms that are proposed,

"would enable a future government to create a judiciary that was committed to its own political agenda by selecting criteria that would result in the appointment of judges sympathetic to its policies".

Does the noble and learned Lord accept that judicial independence is at the heart of our democratic process? What action does he propose to take to ensure that the appointment and functions of the judiciary are not tampered with?

My Lords, I entirely accept that judicial independence is at the heart of our constitution and our democratic process. I would also entirely accept that the judges, the Government and I are at one in ensuring that that independence is preserved under the changes that we introduce. One way in which we seek to embed and strengthen judicial independence is by taking the ability to appoint judges from the hand of a government Minister and placing it much more firmly in the hands of an independent appointments commission. We must discuss the matter in detail with the judges to ensure that we get the detail right.

My Lords, is my noble and learned friend aware that the law of unintended consequences can have powerful results in a country without a written constitution? What we do have is a tradition that has given the judiciary the independence that has been entrenched in that particular tradition. Will my noble and learned friend acknowledge that the role of Lord Chancellor has provided the high position and special standing as the head of the judiciary from which we have all benefited? Is he absolutely certain that, before tinkering with one of the foundations of our liberties, he will be able fully to justify these changes?

My Lords, as we have made clear at every stage, the preservation and strengthening of the independence of the judiciary is what we seek to achieve. As I said in answer to the noble Lord, Lord Dholakia, it is a fundamental part of our constitution. That is why the detail matters and that is why we have adopted our approach. As somebody said this morning, imagine if we had said to Parliament or the judges, "How about having a Cabinet Minister appoint the judges, discipline a large number of them and decide where individual judges sit?". We do not believe that that is a sensible basis on which to continue. The independence of the judiciary is embedded in our constitution. We will ensure that that is reflected in the statute that we introduce.

My Lords, will the noble and learned Lord explain why the Sentencing Guidelines Council set up by the Criminal Justice Bill was pre-empted by the Home Secretary producing Schedule 19, which ups by 50 per cent the sentence previously approved by the Lord Chief Justice himself and the Lord Chancellor? In the words of the Lord Chief Justice in his memorandum deposited in the Library, that has made it quite impossible to accommodate those who, as a result of that upping by 50 per cent—without any consultation—will over-fill the prisons and, as a result, it will show that judicial discretion has been tampered with by ministerial decree.

My Lords, there is no doubt that sentencing is a matter for judges and Parliament together, sometimes by setting minimum sentences, sometimes by setting maximum sentences and, in the case of murder, by setting out principles in statute. As has been made clear in all of the debates in this House, the provisions set the starting point in each individual case. It is then for the judge to reach a conclusion about the right sentence based on the merits of the case.

My Lords, to what deficiency on whose part does the noble and learned Lord the Lord Chancellor attribute the Lord Chief Justice's present anxiety for the future independence of the judges?

My Lords, so far as the current position is concerned, there is absolutely no deficiency whatever in the independence of the judges. However, as was made clear on 12th June when the reforms were first announced and on 14th July, we need to embed that independence and look forward to the future. As we made clear, having one person making all the appointments is not an appropriate way forward. An independent Appointments Commission preserves independence and provides a better way for the future. Every other modern, developed democracy has been able to have that. I think that we can.

My Lords, will the supervising and disciplining of the judiciary be in the hands of an elected government Minister, such as the Home Secretary, after these reforms come into effect?

My Lords, the disciplining of the judiciary is absolutely vital to ensure the independence of the judiciary. We made it clear in the paper that we produced on 14th July that, with the absence of the Lord Chancellor—with the abolition of that role—new arrangements would have to be introduced. Those arrangements must give the judiciary confidence. They cannot be ordered to give particular decisions by the executive. That is vital. It would have to be a partnership between the executive and the judiciary.

My Lords, will the noble and learned Lord confirm that some of our ablest judges have served in Parliament and belonged to various parties?

My Lords, indeed, if one looks back in history, some of our ablest judges have indeed served in Parliament and have been members of political parties.

My Lords, is the noble and learned Lord the Lord Chancellor concerned that in the Criminal Justice Bill the minimum starting point is being raised from 12 to 15 years old for those children who kill? Only last May, the Lord Chief Justice, with advice from the Sentencing Advisory Panel, decided that the minimum starting point should be 12 years old. Is the Lord Chancellor concerned that a minimum starting point at 15 years old is being imposed on the judiciary? Does that not inevitably lead to an increase—perhaps only a slight increase—in the likely length of sentence for those children? Is he not concerned about that?

My Lords, I know that the noble Earl has participated fully and helpfully in all the debates on the schedule in which the juvenile figure is mentioned. There are different starting points for different ages. Most juveniles convicted of murder are convicted at the age of 16 or 17. The schedule allows a starting point for different ages. It also allows judges to take into account the precise age at which the offence was committed. There is still a substantial discretion.

My Lords, those noble Lords fresh to the debate, who did not attend before lunch, will have missed the extraordinary spectacle of the noble Baroness, Lady Hollis, arguing vigorously against government legislation—that is, the orders regarding the Regulation of Investigatory Powers Act being considered today—being applied to her own department. A number of noble Lords in the Chamber seemed to have puzzled faces because the noble Baroness's comments appeared to drive a fairly substantial coach and horses through the arguments being advanced by her noble and learned friend the Attorney-General as to the effectiveness and the necessity of the regime.

Indeed, we live in dangerous times. No Member of the House who spoke on any of the orders today—either against or for the amendments—would do anything which would weaken the ability of the appropriate agencies to prevent terrorism, nor to prosecute serious offenders. However, we must recognise that the public's trust in the integrity of the law enforcement process will be weakened if advantage is taken by the Government to take additional powers in this climate without proper safeguards. If it were realised beyond this Chamber and beyond the speciality press the degree to which the Government have awarded themselves new powers under the two Acts to which we are referring—that is, the Regulation of Investigatory Powers Act and the Anti-terrorism, Crime and Security Act—there would be considerable disquiet.

In addition, there is the great laundry list of organisations contained in the communications data order which is being added to those bodies which can acquire communications data. Not only the police, security services, Customs and that type of organisation, but also National Health Service trusts, ambulance services, the Department of Transport and fire authorities will be able to acquire all types of data under Section 21(4) of the Act. Of course, those are all very worthy bodies, but as the noble Earl, Lord Erroll, asked just before lunch, why could their inquiries not be forwarded through the police? Would it not be much more appropriate to use a regime through the police, such as that for search warrants? If the net is cast absurdly wide, abuse would not be just expected, it would be guaranteed. With the addition of the bodies contained within the communications data order, how many additional individuals will be authorised to acquire the data?

There has also been a great deal of argument about whether the requisite powers already exist and whether they are just being brought under the safeguards of the Act. Up to a point, that may be so. But are the original powers being rescinded? When my noble friend Lady Blatch asked that question this morning, I think that the answer from the noble and learned Lord the Attorney-General was that if the powers were rescinded, it would be difficult not to disrupt other powers. That appears to be an extremely weak argument. How can the Government have it both ways? How can they say that while they have the existing powers they would like to have them under a new regulatory regime, but they will retain the old powers, just in case.

We are also concerned about the definition of communications data. I recall the long and tortuous debates—the noble Lord, Lord Bassam, represented the Government—when we discussed the original Regulation of Investigatory Powers Bill and the great changes made in another place because of those representations. The key point is that it is far from clear. It was not clear three years ago and it is less clear now.

In an age of cookies and hyperlinks being attached to e-mails and voice mail being accessed electronically, are these communications data or communications themselves? They may sound like esoteric points, but they are very important. The noble and learned Lord drew a firm parallel between the interception or the monitoring of communications data and the interception of communications itself. When communications largely were written by letter, that clear definition could be made; now it cannot. As we have heard, a firm picture can be built up of an individual's life and with whom he or she is in contact, just by the use of communications data.

We need specific answers from the noble and learned Lord about the capacity that the commissioner will have to oversee the enormous number of requests. The Home Office has admitted to at least 500,000 possible requests. I should be interested to know how that figure compares with the total number of police investigations. But it is a huge number, which the industry thinks might be three times higher. We have heard from some speakers today that the commissioner will have a staff of four to monitor a possible 1 million transactions, which would be extraordinarily difficult to do. What is the commissioner's budget? How many staff will there be? How many inquiries do they expect?

The noble Lord, Lord Phillips of Sudbury, also put a powerful case for a provision to be made to require the commissioner to inform the subject of a wilful misuse, subject to the interests of national security. At Question Time yesterday, the noble Baroness, Lady Scotland, was asked that exact question by the noble Countess, Lady Mar. The Minister ducked the question just as it was ducked earlier today. How can one complain without knowing whether abuse has been made of one's own data?

A number of serious concerns have come from around the House. I suggest that satisfactory answers are needed before accepting the orders.

My Lords, I shall take the orders in turn. Many points have been raised; I shall try to deal with what seem to be the main points raised in opposition to the orders. If there is a point or a question that I do not address, I shall seek to do that later. No doubt noble Lords who consider that it is necessary for the purposes of the debate to ask questions will do so, but I am very conscious of the time and the other business of the House.

I shall start with the intrusive surveillance order. If my memory and my notes are right, the only questions in relation to that order were those asked by the noble Baroness, Lady Blatch. First, how will that now relate the system in Northern Ireland to that in England, Wales and Scotland? Secondly, why cannot the Northern Ireland police deal with the matter?

As the noble Viscount, Lord Colville, said, this will bring Northern Ireland into line with England and Wales. It will mean that the Northern Ireland Prison Service will be able to do what the Prison Service in England and Wales can do. Rather than creating a different system, it will be brought into line.

In answer to the question why the police cannot deal with it, it is for the prison services to manage their estate, not for the police to do so. Just as in the case of England and Wales, if there were any concerns that a mutiny or a hostage situation in a prison might arise, it would be for the prison services to take steps to deal with it, and so it will be for the prison service in Northern Ireland to deal with.

My Lords, I thank the noble and learned Lord for giving way. I apologise for having intervened at an inappropriate moment but I, too, asked a question about the prison service for Northern Ireland.

My Lords, the noble Lord is quite right; I was just about to come to that. He asked whether the Northern Ireland Assembly can be told about intrusive surveillance conducted by the Northern Ireland Prison Service. The answer is no, but the Chief Surveillance Commissioner reports on the exercise of powers under Part II of RIPA, and that report will be published by Parliament. So the information will be made available in that form, certainly to the Northern Ireland Assembly. However, no report as such is made to the Northern Ireland Assembly. I hope that I have given a reasonable assurance.

As regards the first order on intrusive surveillance, the only objection raised about it, if objection it was, was the question: why cannot the police deal with it? The answer is that it is simply not appropriate to tell the Prison Service that, while it is responsible for managing the estate, it must look to someone else for this. We do not expect that to happen in England and Wales and we should not expect it in Northern Ireland. I hope that, at least so far as concerns that issue, the noble Baroness will not press her amendment.

I turn now to the second order covering directed surveillance and covert human intelligence sources. I did not note any specific objection made to that order. Thenoble Baroness, Lady Blatch, asked a question about the definition of a "service manager". Perhaps I may deal with that.

My Lords, for the sake of accuracy, I believe that the noble and learned Lord is speaking to the third order on the Order Paper, not the second one.

My Lords, yes, but it is the second order that I dealt with earlier; I addressed them in a different order. However, the noble Baroness is quite right. Perhaps I may continue to deal with the orders in the same way that I addressed them in my opening remarks.

The only point I noted in relation to this order was a concern expressed about the description of a "service manager". I took that reference in the order to be the identification of prescribed officers for local authorities. The description does not arise in relation to any other body, but I want to refer to a comment made by the noble Baroness about the Environment Agency. The order states that the prescribed officer for local authorities is an assistant chief officer, assistant head of service, service manager or equivalent.

The simple point is this: to find titles for different local authorities which represent the same level of seniority requires the use of a number of terms, reflecting how they are used in different local authorities. I am told by the local authorities and by the commissioners that it will be well understood that to describe someone as a "service manager or equivalent" is to describe someone who is second or third in the chain of command, similar to an assistant chief officer or an assistant head of service. I can assure the noble Baroness that the term does not cover a catering services manager.

The noble Baroness raised this point in relation to the Environment Agency, as I recall, to ask whether it could be someone who is simply a team manager. I may have misunderstood her, and if so I apologise unreservedly.

My Lords, that is what it says in the order.

My Lords, the order does not refer to a "team member", it refers to an "area management team member". Being a member of an area management team is not the same as being simply a team member. With respect, that point is not a reason for opposing the order.

I turn to the communications data order, listed second on the Order Paper and probably the one on which most time was spent in debate. I start by addressing a question that was touched on by many noble Lords: why does it matter to pass this order? Two things will happen if noble Lords do not accept the order. First, by voting it down, noble Lords will be voting to strip away the safeguards which are contained in the Act and the order. It will mean that there will be no purpose limitation on access by individual agencies; there will be no limitation on the type of data that they can access; there will be no limitation on the level of person who has to authorise; there will be no independent oversight; and there will be no report to Parliament.

My Lords, I rise to correct the noble and learned Lord the Attorney-General. Under the existing powers on which we would have to fall back, all those protections are already in place. Further, under the Data Protection Act 1998, the Chief Surveillance Commissioner is at present referring material to the information commissioner in order to protect the individual. I agree that, under a proper R1PA, the position would be better, but we now need the safeguards to be properly in place.

My Lords, in a moment, I shall outline the present position as regards the way that particular agencies access information. However, there can be no doubt about the safeguards which are set out in the order, requiring that data can be gathered only for particular purposes, only for certain types of data and authorised only by particular persons, and oversight carried out only by a particular commissioner who reports to Parliament. All those would disappear if this order does not go through.

My Lords, I am grateful to the noble and learned Lord the Attorney-General. Does he agree that that catastrophic consequence would arise only if the orders were not replaced by new orders that contained more effective safeguards? There is nothing to stop the Government coming back to the House with fresh orders containing more effective safeguards.

My Lords, we are now bringing to the House orders containing effective safeguards. To reject the orders would mean that the safeguards that we are seeking to put forward, safeguards that the industry wants, will not be put in place. With respect, it is perverse to say, "We are not prepared to accept an order containing safeguards because we are concerned about those safeguards". If we want to build on the safeguards which are set out in the order, there are ways to deal with those concerns.

I do not doubt for a moment the importance and sincerity of the questions that have been raised. The Government have made it clear that they accept entirely that the question of privacy is extremely important. Last year the Home Secretary accepted that we had got it wrong. A consultation document was put out that was well received, and I hope that noble Lords will have had the opportunity to look at it.

Let me identify some of what will happen in the future if this order goes through. We will be able to look at the commissioner's annual report. Some of the questions raised by noble Lords were based on the assumption that either there is or there might be abuse. The commissioner's report, enabled by this order, would allow us to look at what the commissioner finds. If the commissioner finds general abuse and the need for more safeguards, then that would be a matter for consideration. Alternatively—I suggest 1o noble Lords that this would be very important—if the commissioner finds that a particular authority is using the powers in inappropriate ways, he can recommend to the Home Secretary that such a person should be taken off the list. That safeguard would not be introduced if the order is voted down.

We will be able to look at the commissioner's resources. The question has been put to the commissioner as regards what resources he will need in order to take on these new responsibilities. He has not yet come back to the Home Secretary with his response. However, what resources he needs will be made available to him.

My Lords, I am most grateful to the noble and learned Lord for giving way. Is he suggesting that the Government are minded to bring in further powers, ones that are not available either in the present RIPA order or in the Act, which would enable the Interception of Communications Commissioner to take steps with regard to individual transgressions and to name the people concerned in his report?

My Lords, this relates to the amendment tabled by the noble Lord, Lord Phillips of Sudbury. If he will permit me, I should like to deal with it when I come to the amendment because I have something to say which I hope he will find helpful in relation to that issue.

I said that I wished to make two points. The first point is that the safeguards and the strict regulation that we have been discussing will not be brought in if the orders are voted down. The second point concerns what will happen to the requirement that authorities should be able to exercise these powers, which all noble Lords who have spoken agree is extremely important.

Without bringing in the RIPA power for access to communications data, authorities will be thrown back on one of two alternatives. The first alternative, which many authorities adopt at the moment, is to call upon communications service providers voluntarily to disclose data under the Data Protection Act. There is an exemption for non-disclosure. The noble Baroness looks surprised, but that is the fact. Communications service providers currently provide information voluntarily under an exemption in the Data Protection Act, most usually under the crime exemption provided in Section 29(3).

This voluntary disclosure places the communications service providers in the difficult position of having to make a decision of whether or not to exercise the exemption. With the police service, that may well be a clear decision, but with other public authorities exercising their statutory functions it may be less clear. Where a public authority which does not have an investigatory function tries it on, it may have no idea whether or not it should exercise the exemption.

My Lords, the noble and learned Lord the Attorney-General said that if the order was not passed the public authorities would have to fall back on the voluntary powers. But it is the Government's intention to have a voluntary scheme. They have not yet expressed their intention for a compulsory scheme. Is the noble and learned Lord now talking about the merits between a voluntary and a compulsory scheme?

My Lords, unless I am very much mistaken, the powers in RIPA which would be conferred as a result of the access to communications data would enable people to require information to be passed to them. I am getting strong nods from the Box. We are not talking about retention of data; we are talking about the access to communications data. RIPA provides powers which do not exist at the moment and which will not exist unless and until this order is brought into effect.

As to what will happen if communications service providers simply go back to the Data Protection Act exemption, there are potential difficulties. Some have already arisen in certain cases. I am told that the Maritime and Coastguard Agency has been frustrated in trying to obtain communications data that would assist in the location of individuals reported lost in coastal waters. What happens there is that someone manages to make a call but locating that person, who does not know where he is in a storm, depends upon being able to track traffic data. The agency has been unable to obtain that information in certain cases because the service providers have been unable to assure themselves that they were exercising their exemption under the Data Protection Act appropriately.

The noble Viscount, Lord Goschen, referred to the NHS. The NHS Counter Fraud and Security Management Service has tried to obtain communications data to investigate NHS fraud—which is very important to the taxpayer and to the country—and it has found that providers are unclear about what is their service function and whether it is appropriate to disclose data.

Communications service providers have made clear that once this part of the Act comes into force they will no longer disclose information under the Data Protection Act. There is a real risk that, if this order does not come into effect, some providers will take it as a signal that Parliament is of the view that they should not provide the information. That would create further confusion and could lead to great problems, an inability to deal with important matters and perhaps even a risk to lives.

The Association of Chief Police Officers has told the Home Office and, I understand—if I am wrong, I shall withdraw the point—the official Opposition that should the communications data order fail the police service will decide to stop relying on the good will of communications service providers, as they do at the moment, and instead rely upon compulsory Police and Criminal Evidence Act production orders issued by circuit judges.

The problem in relation to that is that some crimes will go uninvestigated because the powers relate only to the investigation of serious arrestable offences; the industry will not be recompensed because the arrangements in place for providers to be recompensed will not be required; the Crown Courts would be flooded with applications for production orders; industry would incur extra legal costs in attending hearings; and there would be inconsistency because the established single point of contact system between the police and the industry would break down. The Government want to ensure that a single point of contact with the industry is established.

The noble Lord, Lord Jenkin of Roding, asked about local authorities. There will be some cases where local authorities will be able to rely upon existing powers—for example, under the Timeshare Act trading standards officers have powers to obtain information. But they do not have such powers in all cases and they would have to go back to relying upon voluntary disclosure by service providers—if they will do it—under the Data Protection Act.

So there is absolutely no certainty at all that voting this order down will not matter or that everything will go on as it does at the moment. There will not be the regulation in place; there will not be the safeguards in place; and there is a very real risk that information that ought to be provided for the protection of all our citizens will simply not be available.

My Lords, the noble and learned Lord's reply is predicated on an all or nothing approach. He is saying, "You either accept the orders or you have no orders, and then look where we are". But I do not understand why one cannot have the orders reconsidered to include more effective safeguards than there are already. In that way we could reach a fair compromise that protects the right of privacy and balances it more appropriately.

My Lords, we need the orders now. We have reached the stage where, having brought forward the orders, the amendments of the noble Baroness, Lady Blatch—I am not talking about the non-fatal amendments—would prevent the orders having effect at all. There is no getting away from it. That is what would happen.

My Lords, perhaps I may suggest to the noble and learned Lord that he is being extremely disingenuous. During the course of my speech to these amendments I emphasised many times that the purpose of both my fatal amendment and the supporting amendments was to give the Home Office time to take them away and re-present:hem. I made it clear time and again that we support the principle; that we support the framework of regulations; and that we believe it is right that all people should come under the same regulatory framework. Everything I said was constructive to that end. The idea that we would be voting the orders out for all time so that their powers are never exercised was not part of my presentation.

My Lords, I hope, in turn, that noble Lords opposite have heard what I have been trying to say about how we can see if the scheme is operating. I shall deal with some specific points, including those made by the noble Lords, Lord Phillips and Lord Lester, but if the orders are voted down and do not go through today, they will not come into effect.

The question of the noble Lord, Lord Lester, presupposed that the order could introduce more safeguards. The power that Parliament has given under this order is to add authorities and to place restrictions. That is what has been done. I do not believe that the order could, for example, do what the noble Lord, Lord Phillips, would like it to do. There may be another way of achieving that, but it cannot be done by this order. It is not, therefore, a reason for not accepting the order now. Those concerns have been expressed.

My Lords, I am grateful to the noble and learned Lord for giving way. Could the orders not be amended or brought back with additional restrictions not only in terms of the four columns detailing the bodies that can acquire data at the moment but also to restrict the type of data, not just the purpose for which they can obtain them., which is an existing restriction? I am talking about an additional restriction to acquire the type of data—not just that described under paragraphs (a), (b), (c) and (d). In that way, the Maritime and Coastguard Agency could acquire location data about mobile telephones, for example.

My Lords, it is already restricted in two ways. First, the order carefully identifies which sort of communications data a particular agency can obtain. There is a difference between what is called traffic data, which tells you about the location of individuals, and subscriber details, which tell you who has a certain telephone number. Certain agencies are limited to the lowest category of communications data. Someone wanting to know who is the cowboy who has been going around fitting dangerous gas heaters, to use the example of the noble Lord, Lord Jenkin, may be able to identify someone only because they have a card with a telephone number. That is subscriber information which one would need.

My Lords, with respect, the local authorities are already using many of these powers under RIPA. Of course they do not deny that if the order comes in, there would be additional safeguards and additional powers. As they point out, the same powers will be conferred on a number of additional bodies. I was greatly reassured by what my noble friend said; the local authorities will not be deprived of using their powers—they have RIPA powers already.

My Lords, they do not have RIPA powers at the moment to access communications data because the order has not been passed so the powers have not come into force. They have the ability to ask communications service providers voluntarily to provide information to them under the exemption in the Data Protection Act. That is a voluntary provision by the communications service providers except in those cases where there are specific powers. There are some specific powers—there are timeshare powers, the Serious Fraud Office has powers, and so forth. Local authorities are not operating powers under RIPA to get access to communications data because the order has not come into force.

My Lords, the noble and learned Lord made a point about traffic data. This is where we had problems, as I mentioned in my speech. Regarding paragraphs (a), (b) and (c), I cannot find the Maritime and Coastguard Agency among the bodies that are allowed to access the traffic data which the noble and learned Lord has defined as the stuff that tells you where the person is. I cannot find the agency in the list of bodies that can access such information. I can only see the security services, intelligence services, Government HQ, the Armed Forces and the police. In fact, the Maritime and Coastguard Agency will not be able to access such data under these powers unless it comes under paragraph (b), in which case a huge number of bodies also have access to them, which was my point earlier. Subsection (4)(a), (b) and (c) give the definitions of data. This is one of my points—it is not clear and the blurring of the edges is causing us problems. The Government should go through this; some caveats have to be included so that they can come back with something better in the future.

My Lords, with a little assistance, I am sure I can answer the noble Earl's question in a moment.

I said in answer to the noble Viscount, Lord Goschen, that there were two points. First, the order restricts the type of data. Secondly, as I said this morning, the authorities cannot use their powers except for a function that they have. That, in itself, results in a significant restriction on what they do. I respectfully commend the consultation paper to noble Lords because it sets this out so clearly and deals with a lot of the concerns that have been expressed.

In answer to the noble Earl, the Maritime and Coastguard Agency comes under the area operations manager of the Department of Transport. That is on page 5 of the order.

I want to deal next with the shortcomings that are alleged. I am trying to identify from what noble Lords have said what the shortcomings in the legislation are. The first such concern is whether there is any penalty for misuse in the legislation. There are other sanctions for misuse of data. Section 55 of the Data Protection Act makes it an offence knowingly or recklessly to obtain personal data without the consent of the Data Controller. An official of a public authority misusing the power to acquire communications data could commit this offence.

My Lords, I am terribly sorry, but the answer the noble and learned Lord has given me is nothing to do with the question. Page 5 is about the people who are authorised and the purpose for which they are authorised. My question was about having access to traffic data, which the coastguard agency is not allowed, which will give them the location.

My Lords, may I draw the noble Earl's attention to page 4? In Part 1, under the heading to Schedule 2, it reads:

"Individuals in additional public authorities that may acquire all types of communications data within section 21(4)".

I hope the noble Earl is now satisfied.

Absolutely, my Lords.

My Lords, again, I am grateful to the noble and learned Lord for giving way. The definition of personal data in the Data Protection Act is much more limited than communications data under RIPA. I have checked that with the noble and learned Lord's officials.

My Lords, I was going on to say that there are certain safeguards and penalties already.

However, the Home Secretary acknowledged in the consultation paper that there is a concern about where the balance should lie between respect for individual privacy and the need to protect the public from crime and terrorism. It is not limited to access to communications data—it is much wider than that. It includes the use of CCTV, the use of automatic number plate recognition cameras, covert surveillance, and so forth. I entirely understand why notifying individuals where that right has been improperly interfered with is a concern. It has been raised by noble Lords and has been acknowledged in the consultation paper.

The Home Secretary and his officials are working on proposals which will address the privacy balance with the organisation Liberty and researchers working for the office of the Information Commissioner. Obviously, it is for the Home Secretary to say when he will bring forward proposals for consultation by the public and Parliament, but proposals will be brought forward, perhaps early next summer. So the issue about which the noble Lord is concerned is under active consideration as part of a wider question of the balance between privacy and powers. I hope that the noble Lord will find it helpful, therefore, to know that the issue he is concerned about, which cannot be sorted in this order as there is not the power to do it, is under active consideration. The very cogent remarks that he and other noble Lords have made on this subject will be taken into account in that consideration. I hope that he finds that assurance helpful.

The noble Baroness referred to the sharing of information, particularly with overseas authorities. I want to deal with the big points. This raises two issues: first, will United Kingdom public authorities acquire communications data on behalf of foreign agencies? The answer to that is yes, but it will happen only where the normal safeguards apply—that is, it is necessary for the prevention of crime and, in this respect, contrary to the belief of the noble Baroness, the dual criminality requirement applies in relation to the use of this part of the powers. It will have to be proportionate in the particular circumstances of the case, and the authority in question will have to assess that for itself.

The second issue concerns what other restrictions are in place. The vast majority of public authorities which obtain communications data have no need to disclose them to anyone outside the United Kingdom. There are some occasions when it might be necessary and right to do so. As noble Lords said, in debate on the Crime (International Co-operation) Bill, with trans-national organised crime it is often very important that there is co-operation between international agencies in the right case.

If the foreign agency is within the European Union, it will be bound by the data protection directive and its own data protection legislation. The data will be protected in the same way there as they are here. The directive also recognises the need to protect data that might be transferred out of the European Union. The eighth data protection principle says:

"Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data".

That is a requirement before such information should be passed across. The public authority that contemplated disclosing information would need to assess that data would be adequately protected and what steps could be taken to ensure that. We would be happy to set out and lay in a report before the House the particular circumstances in which that might happen—saying, for example, under what treaties it might happen.

As regards legacy legislation, I repeat what I said in opening. Some authorities have general powers. The Serious Fraud Office, for which I have ministerial responsibility, has them. Those powers can be, and are occasionally, used to access communications data, but they are also used to access a great deal of other information. It is the basic power under which directors can be required to answer questions. We cannot conceivably repeal that section, because that would prevent all other methods of gathering information from being operated. Once the order is in place, the communication service providers will be saying, "We will provide information to you under RIPA—that is what the order says, and in accordance with the safeguards set out in it". That is what will happen.

The noble Viscount, Lord Goschen, asked whether the number of instances of requiring information data would go up. We cannot be precise until the order comes into effect, but the indications are that, in so far as authorities and providers have followed the RIPA model not in force in relation to access to communications data, the number of requests has gone down. Other parts of RIPA are in force—in relation to directed surveillance, for example. That may be why the noble Lord, Lord Jenkin of Roding, has information from local authorities. There has been something like a 6 per cent reduction in authorisations sought from police forces, the National Criminal Intelligence Service, the National Crime Squad and others in the past year. That is an indication that applying the safeguards in the RIPA order has the result of reducing the number of authorisations and access taking place.

One or two noble Lords asked why the police did not use the provisions in every case. There are specialist investigators for specialist issues. If a trading officer was concerned to investigate defective gas fittings, it would not be sensible to say that the police had to take over part of the investigation. It is more than that, however. There will be a number of areas, such as the Financial Services Agency, where there are specialist investigators who need the powers to do it themselves. It simply is not sensible to say that they cannot make those investigations and that the police must take on that responsibility. The police do not want it.

The noble Baroness, Lady Blatch, raised one point with which I must deal. She complained about an Answer given to a Question asked by the noble Lord, Lord Skelmersdale. The Question was specific. The noble Lord asked:

"Which orders give directions about retention of communications data".—[Official Report, 5/11/03; col. WA 111.]

I emphasise the word "retention".

The Act is very specific; no orders for the retention of communications data—not access but retention— can be given, until the voluntary approach has been reviewed. None of the orders gives directions, and the reply to his Question reflected that. The orders open the way for the voluntary code to be put in place in relation to the retention of data.

The noble Earl, Lord Northesk, referred to an answer that he had received from the noble Baroness, Lady Scotland. I am happy to have that put in the Library, if that would satisfy him as having the answer on the record, to save time reading it out. I am glad to see the noble Earl nodding assent to that.

Finally, in relation to communications data, the noble Baroness, Lady Blatch, said that nothing had changed since last year. With respect, that is simply not the case. The order that the Home Secretary put forward and withdrew was simply a list of public authorities, which did not include the qualifications or restrictions. The new order not only lists the public authorities but restricts access to data to specific purposes, restricts access by the type of data, and restricts who may give authorisations. It is significantly different from the previous order.

My Lords, I apologise for intervening on the noble and learned Lord. My understanding was that last year there were two orders; one of them was the list and the other contained safeguard elements. What happened in the intervening period was that the Home Office compiled a single order rather than two.

My Lords, I shall deal with the next issue and get information on that, as I do not have the previous order in front of me. I am working from what I have been told, and do not have it in my recollection.

I turn to the retention of data and the amendment proposed by the noble Lord, Lord Lester. The Government have stated consistently that Part 11 of the 2001 Act provides for the retention of communications data and chapter 2 of Part 1 of the 2000 Act provides for the regulated acquisition of communications data in a way that requires explicitly respect for individual human rights. It follows that the legislation already provides that any communications data retained under the Anti-terrorism, Crime and Security Act 2001, only because of that Act and for no other purpose, can be obtained or disclosed under RIPA, but only in accordance to the fundamental right to personal privacy. That is what lies behind the access to communications data order.

I repeat what I said to the noble Lord when he was speaking—that the Joint Committee on Human Rights, for which I, like him, have great respect, reached the conclusion that, on balance, it was satisfied that other safeguards within the structure of the Regulation of Investigatory Powers Act and the procedures for judicial review were likely to provide adequate safeguards for convention rights. That essentially deals with the issue. I wanted to take that point a little further, as the noble Lord asked who would form the view that retention of data was necessary. The Secretary of State would form the view that data retention was necessary in order to safeguard national security. His decision is based, as it always is in matters of that sort, on reports given him by the relevant agencies. He is not under an obligation to prove that case to the industry; the view has been echoed by the Information Commissioner, who told industry that it was entitled to rely heavily on the conclusions formed by the Home Secretary.

Under the Act, communications data can be accessed only if it is proportionate and appropriate to do so. There will be the stringent oversight regime to which I referred. The clear view of the Government is that the additional retention period is for retention of information that the service providers already keep for business purposes. The retention period may add up to additional days or months, but not years, and is nothing that people need to fear.

Before I turn to the final order, I want to return to the question that I was asked by the noble Earl, Lord Northesk. The second order to which he referred was never laid. The proposal last year did not restrict access to any type of data. Every authority potentially had access, for example, to traffic data. That has been restricted this time round. It is plain that I overstated the case in what I said before but there are still important differences, if only in that respect. But the purposes—in that respect and in the respect that we are discussing—open to authorities have been restricted as well so that now the permitted purposes that each authority may rely upon are clearly identified. That has been done as a result of a process of asking them to prove what they actually need.

My Lords, I am grateful to the noble and learned Lord for that reply but I now have to ask another question as I fear that he is about to leave the code of practice order. Will he respond to the specific questions that I asked in my speech regarding what kind of data retention regime emanated as a result of the September 11th atrocity, and how longstanding has that been post that event? Have any arrests emanated directly from that?

My Lords, I am afraid that I cannot answer the question regarding the use of the information that the agencies have retained and what that has given rise to. I certainly cannot do so in terms of the number of arrests. I shall see what more detailed information can be provided and write to the noble Earl. I know from my own responsibilities as Attorney-General the amount of work that has been carried out by agencies since September 11th in order to try to track down those who put our citizens, and citizens of other countries, at risk. Communications data are often a key part of being able to track down such people. I personally have no doubt at all that they are important.

As regards the length of time for retention, as I said previously people do not leave their calling cards at the time that an atrocity takes place. Often it is possible to track the information only after painstaking work undertaken over a period of time. If by the time one tracks information back to a particular individual the communications data is no longer being retained, one comes to a dead end. This is an important matter and the Government so regard it for the reasons that I have given.

I am conscious of how long I have spoken, although I pray in aid the number of questions that I have attempted to answer in the course of speaking. I refer to the extension of the initial period. We now have a voluntary code that can be tested. Until that has happened, it is not possible to enforce a mandatory code. I suggest that the kind of extension which the order seeks is reasonable.

I am conscious that I have not touched at all on the point made by the noble Earl, Lord Northesk, about the Department for Work and Pensions. My noble friend Lady Hollis, as a Minister in that department, set out the position. The fact is that the department has a special power post-dating the two Acts. Noble Lords heard what my noble friend said about the circumstance in which that came into effect. The fact that the department seeks to stay outside the regime does not undermine the great benefit to the public, providers and authorities of bringing in this strictly regulated scheme which will apply to everyone else.

My Lords, I am grateful to the noble and learned Lord for giving way. In deciding what position I should take on behalf of the committee on which I have the privilege of serving, it would help me if the noble and learned Lord the Attorney-General could be a little clearer about what is proposed to occur between now and July—next summer. During that period will there be full consultation on how the right to privacy might be further strengthened without damaging the legitimate aims of this legislation? It would very much help me if we could be told something a little more specific about that.

My Lords, I am afraid that I cannot be more specific than I have been. The issue was stated very clearly in the consultation paper and discussions are already taking place with Liberty and with officials from the office of the Interception Commissioner. Although I cannot tie the Secretary of State regarding when matters will be brought forward, I hope that it will be by the date that the noble Lord indicated.

My Lords, will the noble and learned Lord comment on the issue raised by the noble Viscount, Lord Colville, regarding the status of the draft directive on data retention? That would be extremely helpful.

My Lords, the noble Viscount gave me leave not to reply to that point as he cannot be present this afternoon. However, I thought that I should inform him of the position. I promised to write to the noble Viscount with the answer. I understand that the directive will come into force and that the noble Viscount may be mistaken regarding the date. I am told that there is no question about our not having implemented the directive in time. I think—but I shall clarify this in writing—that there will be implementation of the directive by the due date which is December of this year. I cannot assist further on that matter. I hope that the noble Earl will forgive me on the basis that I have been relieved of answering the examination paper in that respect.

I say to the noble Lord, Lord Lester, that if there is any further information that I can provide about the detail of what is going to take place, I shall write to him and place a copy of the letter in the Library of the House so that other noble Lords are aware of it.

I have spoken for a very long time. I have tried to answer what I believe are the main points. The noble Earl, Lord Northesk, might think that there is a directive regarding data retention. That is not the case. The directive concerns electronic communications and privacy. I do not know whether that helps him.

The noble Earl also asked about the length of retention following the atrocity of September 11th. Communication service providers voluntarily preserved data generated on September 11th and the days immediately around it. The Home Secretary is very grateful for that assistance.

I have attempted to demonstrate why these orders are important. The Government recognise the concern that arose last year and carried out an important consultation that contained considerable detail. That consultation was welcomed. The orders that are now proposed—particularly regarding communications data, which has been the subject of most debate—are welcomed by the industry. The industry wants certainty and clarity. Other measures may emerge that can be put in place but they are not for this order. By putting these orders in place we can get on with the regulatory scheme that Parliament wanted to have when it passed RIPA. For that reason I very much hope that noble Lords will support all the orders.

My Lords, before the noble and learned Lord sits down I should be most grateful if he would help me decide exactly how to react on the Motion in my name. I am grateful to the noble and learned Lord for his sympathetic comments vis-à-vis the prospect of an offence being legislated for breach of Chapter 2 of Part I, bearing in mind that at present there is none. The noble and learned Lord said that the consultation would take place and held out the implicit promise that legislation may arise in its wake.

However, the noble and learned Lord did not refer at all—I do not blame him given the massive task he has this afternoon—to my amending resolution. That of course was concerned with requiring the interception of communications commissioner to inform citizens where there had been a wilful or reckless breach of their communications data. I got no hint from the noble and learned Lord on whether that would form part of the consultation and ensuing legislation. I would be most grateful to know.

My Lords, the answer to that clear question is yes, that will form part of the legislation. I should also have said—we had the short passage of arms before—that we take a different view at the moment on what the commissioner could in any event do under the powers that he has, but he could in the Government's view take on further reporting tasks if he wished to do so.

My Lords, I am grateful to all noble Lords, and in particular to the noble and learned Lord the Attorney-General. As I said at the outset of the debate, he undertook to deal with these complex orders at very short notice, and his expertise has certainly shown through in the way in which he has dealt with some pretty penetrating questions from all parts of the House.

There have been many powerful and persuasive speeches in favour of the amendments. I speak now of the non-fatal amendments as opposed to my own amendments, which are fatal. Many of the concerns that I flagged up at the start of the debate have been reinforced by almost all the speeches that followed. The cases put via the amendments in the names of the noble Lords, Lord Lester and Lord Phillips of Sudbury, and my noble friend Lord Northesk were advocated with care, were constructive and were based on points of principle.

I want to pick up some of the points mentioned by the noble and learned Lord in his response on the amendments. First, I shall deal with the discussions taking place with Liberty. We have all been in receipt of a missive from Liberty that is as current as only yesterday. There is no hint whatever from Liberty that any discussions are taking place along the lines suggested by the noble and learned Lord. I am not suggesting that he is personally responsible for what he has said, because he is in receipt of advice from Home Office officials.

However, we have been with such officials, met Home Office Ministers, been to conferences, and met people from the industry and all sorts of very learned people concerning the orders. On no occasion whatever have our fears been allayed and have we been told that there are constructive, active discussions to address some of the points made in the amendments. Had we been told that, it might have made quite a difference to what appeared on the Order Paper today.

However one looks at the present statute, there is no duty to inform. I believe that the noble Lord, Lord Phillips of Sudbury, is as much concerned about duty to inform the person aggrieved by the abuse as about simply informing the Prime Minister or some third-party body that abuses have taken place. The individual citizen who is on the receiving end of malicious, vexatious abuse of the system has a right to be informed. If we do not do that, trust in the system will be destroyed.

I shall deal with penalties. Again, if wilful, vexatious and reckless activities take place that result in abuse of the system against an individual by an invasion of privacy for the wrong reasons, that must be considered a breach of the law. That needs to be addressed.

The noble and learned Lord was very careful—he used his words wisely, as he always does—on the intrusive surveillance order to refer to the system as it covered England and Wales. He did not mention Scotland. Therein lies an interesting point.

My Lords, I am so sorry. The noble Baroness is quite right. I have a note on that. The answer is that the Scottish regime is dealt with by the Regulation of Investigatory Powers (Scotland) Act, which I am told—I have not checked it myself—is in the same terms as the English Act so far as the matter is concerned.

My Lords, I believe that there is a difference, but I would be dancing on the head of a pin if I pursued that any further.

The concern addressed by the noble and learned Lord on directed surveillance referred to my query about service managers. I have had his interpretation of what such a manager is. That is either a personal view of his or the view of the Home Office, but there is no definition or qualification anywhere in the statute. It is not referred to in the primary Act or the order, so it is very much in the interpretation of the chief executives who appoint people for such purposes to be responsible for a level of authority. That is a very real area of concern. If what the noble and learned Lord said was somewhere in statute and there was some qualification, we would feel more assured.

I am winding up on all the orders, so that I save time later.

My Lords, as the noble Baroness pauses for breath, as it were, I want to come back on her point about the involvement of Liberty. Obviously, I am grateful that she said that I had not said anything false, but I am told that the noble Lord, Lord Phillips of Sudbury—he may be able to confirm it—is participating with the Home Office in the Liberty work. If that is right, it may give the noble Baroness assurance that the work is actually taking place.

My Lords, perhaps I should speak for myself. Liberty and Justice are running a project into the whole realm of privacy, and what we are discussing today is at the heart of it. I chair an advisory committee on which certain noble and learned members of the Home Office team are lending their great knowledge. If that helps, I shall be happy.

My Lords, my point stands, because it was in the context of something happening imminently. I took from the noble and learned Lord the first thing that he said rather than the qualified statement that came later, which was that something was going to happen, and it was likely to do so in spring or summer next year. If that is the case, in 13 days' time we expect a line in the Gracious Speech to indicate that the work is going ahead and that something will appear on the statute book during the coming legislative Session. However, I hold out no great hope on that.

The noble and learned Lord suggested that the communications data order would have two results. First, it would strip away safeguards. There would be no purpose definition, no limitation on access, no definition of what the level of person was to authorise such applications for access, and no independent oversight. The noble Earl, Lord Erroll, dealt with some of that. However, one of the interesting points— it links to a point made by my noble friend Lord Jenkin of Roding—is that the local authorities and many other bodies that exist have more scope to do what they are doing at the moment.

One of the arguments put forward by the Home Office was that the provisions were about regulating and making things more restrictive. More restrictive was the very phrase used by the noble and learned Lord. At the moment, bodies are relatively unrestricted and relatively unregulated. That is why we always agreed in principle that to be restricted and have proper definitions of types of access, and certainly to have a regulatory framework, was right. That is rather a weak first point.

The second point was that authorities with RIPA powers would be thrown back on the alternative voluntary system. I make an abject apology to the noble and learned Lord, because my mind jumped— not surprisingly; I have had a towel round my head for about a month on these orders—from the RIPA orders to retention. I apologise most profusely to him for that. I understand what he is saying about the voluntary scheme, but the system is in place now. The past two years are probably some of the most vulnerable years in terms of possible acts of terrorism and such activity. It does not seem to me that the world has fallen apart and that people have been prevented from accessing the kind of information that they need.

Something that the noble and learned Lord said over and again gives me cause for concern. I shall ask him a direct question. Does the RIP Act override the Data Protection Act in terms of protection of the individual? Service providers might be concerned about their vulnerability—about betraying the privacy of an individual—but he went on to say that the information could be found under RIPA. What is the interaction between the two Acts? Which has primacy over the other? To what extent is the individual protected, and under which statute?

I repeat that the purpose of voting down the orders is to give an opportunity to the Government to strengthen the safeguards rather than to go away and lose them in the back room. That would act as a spur and we might just see something on the statute book by June or July of next year.

Interestingly, the noble and learned Lord pointed out that if the orders were voted down, the safeguards would not be put in place. That is a decision for the department. If they are threatening to do nothing if the orders are voted down, one has to ask what the Home Office is doing. We regard them as important; I believe that the Liberal Democrats regard them as important; the Government say that they regard the provisions to be important; they sympathise with the safeguard that we would all like to see in the orders. The case for getting a move on is more than made.

The Government said that the current situation cannot continue while they rethink the flaws. The world will not fall apart if RIPA is not introduced and the situation continues. The noble and learned Lord described a chaotic situation, but the Home Office and the Government have sat on their hands for two years and allowed that to exist. They have had two years in which to be much more proactive on the matter. They cannot have it both ways. They cannot claim, on the one hand, that the world is pretty chaotic, but, on the other, sit around and do nothing about it.

Until now, Ministers and Home Office officials have argued that the RIPA orders do not represent more powers. They have said that since we currently have 48 different statutes operating in many different ways, with unregulated bodies and no restriction on the type of access, we need a single framework under which everybody operates. We have accepted that argument. The noble and learned Lord may claim that only if the orders are passed will the Government gain more powers. There are either more powers or there are not. I do not know what they are if that is the noble and learned Lord's argument.

I turn to my final point. The noble and learned Lord said nothing about my example of Zimbabwe or about that of the Greek policeman seeking access to information. I understood his response to everything else. I understood his comments on the difficulty of rescinding legacy powers. However, his comments on legacy powers totally answer the point raised by the noble Baroness, Lady Hollis. All the fears that she expressed about the Government's impotence under RIPA were answered simply and succinctly by the noble and learned Lord.

On retention, I wish to be clear. I said unequivocally that retention is an important weapon in the armoury for those who are seeking to detect crime and fraudulent activity. It is also the case that if the orders are not put in place, there is nothing to stop the Government introducing a voluntary scheme. They have had two years in which to do so. The sunset clause could be enacted in a couple of weeks. Nothing has been done in those two years. The voluntary scheme is not in place. It could quite easily have been brought into play. If the two retention orders are not enacted, that would not prevent the Government putting a voluntary scheme into place. We all know that it is a doomed scheme anyway. Anyone who knows anything about the subject will say that the only scheme that will work is a compulsory one, but the Government have not shown their hand on that.

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

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

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

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

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

Finally, I shall address the specific point of the noble Lord, Lord Richard. First, the power to divide was exercised as recently as 2000 on the matter of a free leaflet that was being sent to all voters in the London mayoral elections. Although the exercise to vote down an order is a rare occurrence, this House affirmed in 1994 its unfettered freedom to vote on any subordinate legislation submitted for its consideration.

I shall add my own words to that. If a question comes before Parliament, whether it be this House or another place, to which the answer is yes or no, with no powers to amend, we must have the freedom to say yes or no. I agree that that freedom should be extremely rarely used and that the reasons for it should be carefully thought through, but the whole area of invasion of privacy, of getting the balance right between detecting fraudulent and terrorist activity, and of the freedom of the individual is fundamental to the people of this country. That is why it is an important issue.

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

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

My Lords, I have been listening to the debate and I understood the noble Lord, Lord Carter, to say that one day our party will be the Government and his will be the Opposition and we are doing something silly. I hope then he will divide the House because there seems no point in the convention that an order cannot be amended and we can never do anything about. We might as well let everything go through completely and not allow any change to be made.

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

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

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

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

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

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

rose to move, That the draft order laid before the House on 1lth September be approved [28 th Report from the Joint Committee.]

had given notice of her intention to move, as an amendment to the above Motion, to leave out all the words after "That" and insert "this House declines to approve the draft order laid before the House on 1lth September".

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

rose to move, as an amendment to the Motion, at end to insert "and this House calls upon Her Majesty's Government to lay a new draft order wherein, notwithstanding the provisions of the Social Security Fraud Act 2001, the Department for Work and Pensions and the Northern Ireland Social Security Investigators are included in the list of named public authorities on the face of the order and thereby subject to Part 1, Chapter 2, of the Regulation of Investigatory Powers Act 2000".