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moved Amendment No. 159C:
Page 51, line 7, leave out from beginning to ("unless") in line 21 and insert--
("(1) A section 46 notice imposing a disclosure requirement in respect of any protected information shall not contain a statement for the purposes of section (Effect of notice imposing disclosure requirement)(3)(c)").
On Question, amendment agreed to.
[Amendments Nos. 160 and 161 not moved.]
moved Amendment No. 161A:
Page 51, line 23, leave out ("a section 46") and insert ("the").
On Question, amendment agreed to.
[Amendments Nos. 162 to 164A not moved.]
Clause 47, as amended, agreed to.
Clause 48 [Arrangements for payments for key disclosure]:
[Amendment No. 164AA not moved.]
Clause 48 agreed to.
Clause 49 [Failure to comply with a notice]:
moved Amendment No. 164AB:
Page 52, line 2, leave out from ("person") to end of line 6 and insert ("to whom a section 46 notice has been given is guilty of an offence if he fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.").
I am happy to deal with this group of amendments if the Committee so desires. I understand entirely the motives behind the amendments in the group. We have been considering whether or not the offence at Clause 49 can be redrafted so as to retain its effectiveness while removing any potential for harm to justice. It will be noted that we tabled Amendments Nos. 164AB, 167B, 167C and 167D as a result of our deliberations.
These are difficult issues and it is a difficult offence to formulate. It involves many technicalities--the possession of a key--which it will be difficult for the prosecution to prove. However, I shall try to address the amendments as briefly as I can.
Amendments Nos. 164B and 164C seek to introduce the notion of intent into the offence. It is said that it should not be enough for the prosecution simply to prove that an individual did not comply with the notice, but also that there should have been some intent on their part. We resisted this in the past and shall continue to do so. A Section 46 notice will impose a legal burden. The offence is clear. It is simply a failure to comply with the notice. There is of course a defence for those who were not able to comply because it was not practical to do so.
I can be more helpful on Amendment No. 164C. This would say that a person is only guilty if he intentionally fails to comply; in other words, a person who fails to comply because he never received the notice or through sheer inadvertence is not guilty. We do not feel the strict liability which the offence imposes is onerous or unjust and do not believe the amendment is necessary. In the light of what I have said, I hope that Members of the Committee will agree that to raise the burden on the prosecution any higher would be unnecessary and would remove the efficacy of the deterrent. I hope noble Lords will consider not moving those amendments.
In Amendment No. 164D the noble Earl, Lord Northesk, seeks to add a stipulation that the offence will only work where someone failed to comply with a valid notice served under Section 46. We agree with the sentiment behind this amendment but believe it to be a clarification too far. There can be no question, under the Bill as currently drafted, that the offence will only work if the Section 46 notice is valid.
Turning to Amendment No. 165, there are difficulties with the notion of proving that a person,
"has had possession of the key".
Let me spell out why the Government included this in Clause 49(1)(b). This limb to the offence is included not because we intend that people should be prosecuted where they have had possession of a key but have no longer got it when they are served with a notice; that is not now and never has been our intention. Rather, this part of the offence is there as explicit recognition of the extreme difficulty of prosecuting these offences.
The real issue created by the second limb of the offence is what burden is placed on the defendant where the prosecution has only been able to prove prior possession of the key. We have tabled an amendment making it clear that where the prosecution has been able to prove previous possession, that alone cannot lead to a conviction if the defendant raises some doubt as to whether or not he still has the key. I believe that that will deal with the issue addressed by Amendment No. 165.
Amendment No. 166 tries to add the possibility that the prosecution need only prove possession of a key or that someone was reasonably able to obtain such possession. I believe that that possibility is already provided for in Clause 52(2), to which we have tabled a slight amendment. Amendment No. 166 is therefore unnecessary and I ask the noble Lord not to move it.
Amendments Nos. 167 and 167A come from broadly the same motives. Amendment No. 167A includes the notion of intention, with which I dealt in my comments on Amendments Nos. 164B and 164C. The rest of the thrust of Amendments Nos. 167 and 167A deals with the time by which a person may have had possession of a key and the difficulties caused by including in Clause 49(1)(b) the notion that a person may be guilty of an offence where he,
"has had possession of the key".
Those issues are addressed by government amendments.
We have tabled amendments that make it clear that proof of previous possession can lead to a conviction. However, it will not do so if the defendant raises an issue about whether he still has possession of the key. Once that happens, the burden falls back on the prosecution in the normal way. I believe that that will deal with the issue addressed by Amendments Nos. 167 and 167A. Accordingly, I hope that noble Lords will not press those amendments.
Lawyers refer to this as placing an "evidential" burden on the defendant, as opposed to a "persuasive" or "legal" burden. It means that the defendant simply has to raise some evidence to discharge the burden. That could be done, for example, by the defendant going into the witness box and saying that he has lost his key, or by producing some evidence that his system has crashed.
I believe that I understand the intent behind Amendment No. 168. In providing for a defence to the offence under Clause 49, the noble Lord, Lord Lucas, wishes to ensure that it will be sufficient for an individual to hand over any key that enables possession of the information to be obtained rather than a key that is specifically demanded. As I said earlier, it will not be possible under the Bill for the authorities to identify a specific key that they wish to be handed to them--rather, they must identify the protected information in question. That being the case, any key that unlocks the protected information will work for the purposes of the defence at Clause 49(3)(c). Again, we have tabled amendments to make that clearer.
Amendment No. 168A tabled by the noble Earl, Lord Northesk, is an attempt to make it plain on the face of the Bill that, where a key has been destroyed as part of routine practice designed to protect confidentiality, this should be a defence against any prosecution. Once more, that is already catered for in the Bill as drafted. All the circumstances set out in this amendment would undoubtedly meet the threshold required to be proved by a defence in a case where previous possession has been proved. Indeed, in as far as this amendment only provides for destruction of keys as part of "routine" practice, it may not go as far as the current situation outlined under the clause as drafted. As currently drafted--and even more so if government amendments are accepted--it should be enough just to explain that a key has been destroyed in a particular set of circumstances.
Amendment No. 168B seeks to lower the burden of proof on the defendant in this case to an evidential burden. I am sure that Members of the Committee will have noticed that a similar amendment has been tabled under my name. However, there is one significant difference. As drafted, Amendment No. 168B would seek to lower the burden of proof on the defendant in those cases where his defence is that compliance with the requirement was impractical. The Government's intention is only to apply this to the defence of showing lack of possession.
We do not see the need to lower the burden on the defendant as outlined in this amendment. This defence is for someone who, on the face of it, has committed the offence. The notice has been proved to have been served on him; he has been proved to be in possession of the key; he has not complied with the notice; but he is claiming that there are circumstances which made it impractical for him to comply. Necessarily, those circumstances are within his knowledge. Therefore, it must be for him to show them. In the light of this and the changes proposed by the Government, I ask noble Lords not to press the amendment.
The discussion that we are having on Amendments Nos. 168C and 169A was forecast at Second Reading and also in another place. Although I share to a considerable extent the concerns expressed and can see the attractions in moving in the direction proposed, I believe that there are constraints on us in this respect. In the final analysis, I do not believe that we can make such a move.
Amendment No. 168C is a very straightforward proposition--the maximum sentence for failure to comply with a Clause 46 notice should be 10 years, not two. This would be designed specifically to cater for the circumstance in which an individual sought to conceal his activities by not handing over a key in the full knowledge that, were his activities to be revealed, he would be facing a much longer sentence. How will the prosecuting authorities, or the judiciary, ever know the nature of protected information in a case where an individual has not complied with a Section 46 notice?
I share some of the frustrations of those who seek to move these amendments, but we need to focus on the offence in question. The offence is not complying with a notice under Section 46. By any view, a sentence of 10 years for such an offence must be disproportionate.
I turn to Amendment No. 169. I believe that in the fundamental interests of justice we must focus on the offence at Clause 49. That offence is failure to comply with a notice served under Section 46. By definition, if someone fails to comply with a Section 46 notice, the prosecution will not know the nature of the material that has been protected. They may have strong suspicions but they cannot know what the material is.
Even where the nature of other charges against an individual may lead one to have suspicions that the material has been protected, I still believe that the interests of justice dictate that the sentence for this offence must focus solely on what that offence is. I believe that a situation in which a person can be convicted of, say, an offence of unlawful possession on the assumption that unknown material is treated as incriminating risks offending against the presumption of innocence. I appreciate that Amendment No. 169 involves a different way of trying to achieve a similar objective to that in Amendments Nos. 168C and 169A. We need to focus on the offence. For that reason we believe that the appropriate sentence for this particular offence should not exceed a two year prison term and/or fine.
I have outlined our views in detail and I have tried to draw attention to the issues which I think are dealt with by the Government amendment in this group. In the light of that I ask noble Lords not to move their amendments. I beg to move.
I thank the Minister for Amendments Nos. 167B to 167D, which go to the very heart of the unease felt on these Benches--and, indeed, on the Government's own Benches--about the standard of proof which prevailed in this important clause. As the noble Lord, Lord Bassam, pointed out in the course of rejecting one of the amendments in the group, the maximum sentence for breaching this clause is two years' imprisonment and a fine.
I shall speak briefly to Amendments Nos. 164B and 167, which stand in my name and those of my colleagues. We propose to withdraw Amendments Nos. 167A and 168B. However, I hope that I may raise just one point on the question of intent, on mens rea, in relation to offences under Clause 46. Given that it is a serious criminal offence, I am not content merely to have the Minister assert that the Government do not propose in this case to apply the normal test which is basic to our criminal legal system; namely, that there should be no serious criminal offence found without an intent to commit the crime. The Minister might, in responding to this short debate, say something about that.
The second point I wish to raise concerns our Amendment No. 167. In our view, there is virtue--I believe that others share this approach--in requiring any notice to be time limited so that the person or persons to whom it is addressed know where they are in terms of the length of its validity. Our proposed Amendment No. 167 is probing in this regard. Again, I should be glad if the Minister could say whether he sees any problem with that because it seems to us that a time limit is a practical and sensible restriction on the scope of the notices.
Finally, I raise two questions of interpretation on government Amendments Nos. 167B and 167C. Amendment No. 167B provides that if it is shown that a person was in possession of a key and so on, certain consequences flow. I should like to refer to the key phrase,
"if it is shown that that person was in possession of a key".
Is that, as I hope and assume it is, a test on the balance of probabilities and not therefore a test beyond reasonable doubt? If that is correct--I believe it to be so--we have no trouble with it. If, on the other hand, the person who is at risk under that provision has to show at that stage beyond reasonable doubt, we do not think that the amendment works.
My second query is in relation to the crucial amendment, Amendment No. 167C. Paragraph (a) states that,
"sufficient evidence of that fact is adduced to raise an issue with respect to it".
"Sufficient evidence", I assume and hope, in this context means prima facie evidence and does not mean a balance of probabilities. We are content with the arrangements proposed under this amendment to throw the burden of proof beyond reasonable doubt back on to the prosecution but only if the evidence--the sufficient evidence that has to be produced by the accused--is prima facie evidence. Subject to those points, we are content with the amendments tabled by the Government.
Perhaps I may comment very briefly on the amendments standing in my name in the group. I think I am content with the Minister's response to Amendment No. 164D. I shall certainly read the Minister's comments with care. As to Amendment No. 168A, I am less certain. One of the many difficulties I have with the Bill is that, in its strident efforts to be technology neutral, it often conveys the impression that either it is ignorant of the way in which current technology operates, or pretends that there is no technology at all. The issue with which this amendment, Amendment No. 168A, attempts to deal is the particular case in point. I shall certainly read the Minister's comments very carefully indeed, but I suspect that this will be an issue to which I shall have to return at a later stage.
All that Amendment No. 169 does is to try to draw a line from the current position on the right to silence--that is the right of the court to draw an inference from the silence of a defendant. What we are talking about here is just another instance of silence by a defendant. He has refused to provide a key to enable the court to see what lies behind the files on his computer. I should have thought there should be a similar right for the court to draw conclusions from that as it sees fit.
I rise to oppose Amendment No. 169. I am more used to being in alliance with the noble Lord, Lord Lucas, on these matters, but it seems to me that this is not a good analogy with the existing inferences that the courts can draw where an accused is silent. This is rather piercing the veil, as one might put it, of past convictions, which is a key foundation of our criminal law. Someone who has been found guilty in the past shall not in the course of a new trial have that past guilt around his or her neck. That would be a backward rather than a forward step, although I understand the point behind the proposal.
I am glad that the Government have moved on the question of burden of proof. It was important that they should do so. I shall not comment any further on the points made by Members of the Committee on that issue.
Amendments Nos. 164C and 168C stand in my name and are essentially a pair. They seek to draw attention to the dilemma which, along with several other noble Lords, I mentioned at Second Reading. If someone is holding incriminating evidence on his computer, he may refuse to give the key because the incriminating evidence might incur a severe sentence. In those circumstances, if it is thought that someone has done that, that person deserves to receive a sentence longer than two years because he would receive a much longer sentence if he were convicted of an offence of, say, paedophilia as a result of the police gaining access to the computer.
However, this dilemma appears to be one that none of us can solve. I accept the Minister's point that a sentence of 10 years is a high penalty to impose in many of the cases that would be brought in this area. I fear that the dilemma remains and perhaps there is nothing that we can do about it.
At last I feel the urge to join in. I am delighted that my noble friends Lord McNally and Lord Phillips of Sudbury have been leading on this extremely complex Bill. I regret that I have not been able to join in the debates that have been held since Second Reading. That has not been entirely helped by the Government's change of dates for the Committee stage. However, I can assure noble Lords that I have followed the deliberations avidly.
In the debate on Second Reading, I raised concerns about the problems surrounding the penalty for failing to disclose a key. I must say that the view expressed by the police is that they would definitely prefer to see a far more severe sentence. They feel that this offence must be an arrestable offence, along with powers of search as set out in Sections 18 and 32 of the Police and Criminal Evidence Act 1984. As it stands, serious and organised criminals might possibly risk the two-year penalty--the likely tariff would be six to 18 months--if the encrypted material could provide evidence of serious criminality such as drug trafficking or paedophilia. If convicted on that evidence, they would face prison sentences of 10 years to life. On the face of it, the penalty provides little deterrent for major criminals. I am sure that the Minister will recognise the concerns of the police here, although I note that he has given reasons why he does not feel that this can be taken any further.
However, I agree with the Minister that a blanket 10-year sentence will not provide the answer. We need to be far more specific about what such a sentence would mean in practice. It could be a draconian measure. As the Minister said, it could well be disproportionate.
I believe that most of the questions that have been put to me were dealt with in my opening remarks. I do not intend to rehearse all those arguments again. There was perhaps rather too much of it even for my benefit and enjoyment.
However, I should like to respond to one or two questions put by the noble Lord, Lord Phillips of Sudbury. He raised a question about the way in which a matter would be considered under Amendment No. 167B. The noble Lord said that he would be satisfied if the test was made on the balance of probabilities. So far as concerns the Government, it would not have to extend even as far as that; a weaker version of it would be acceptable. I hope that helps the noble Lord.
The noble Lord also asked the Government to look again at the issue of intent as it is covered in Clause 46. At present we hold the view that Amendment No. 164B is unworkable, but that Amendment No. 164C may be more effective. We should like to give it further detailed consideration. If the noble Lord is content, I shall return to that matter, perhaps on Report.
That is not what I am saying. I said that we shall look at the issue in relation to Clause 46. We believe that Amendment No. 164B is not workable, but we believe that the way the proposal is expressed in Amendment No. 164C may well be workable. It is for that reason that I want us to have the time to give it further consideration. I am not querying the issue of intent as an issue in itself and how one expresses and understands it. That is not the point of the observation.
The noble Lord asked about "sufficient evidence". We see "sufficient evidence" as being any evidence that raises an issue. It is, if anything, less than prima facie evidence. I hope that that resolves that issue.
The noble Baroness spoke with considerable wisdom in addressing issues relating to the penalty, as did the noble Lord, Lord Cope. But I do not think that it is an easy matter for us to resolve. Both are right, but it is a matter of getting it right for the nature of the offence. At the end of the day, it comes down to an issue of compliance. That is what we have to satisfy. Those were the main additional points which were perhaps not covered in my earlier comments.
moved Amendment No. 167B:
Page 52, line 7, leave out from ("section,") to end of line 8 and insert ("if it is shown that that person was in possession of a key to any protected information at any time before the time of the giving of the section 46 notice, that person shall be taken for the purposes of those proceedings to have continued to be in possession of that key at all subsequent times, unless it is shown--").
moved Amendment No. 167C:
Page 52, line 10, leave out from ("it") to end of line 14 and insert--
("( ) For the purposes of this section a person shall be taken to have shown that he was not in possession of a key to protected information at a particular time if--
(a) sufficient evidence of that fact is adduced to raise an issue with respect to it; and
(b) the contrary is not proved beyond a reasonable doubt.").
moved Amendment No. 167D:
Page 52, line 16, leave out from ("defence") to end of line 31 and insert ("for that person to show--
(a) that it was not reasonably practicable for him to make the disclosure required by virtue of the giving of the section 46 notice before the time by which he was required, in accordance with that notice, to make it; but
(b) that he did make that disclosure as soon after that time as it was reasonably practicable for him to do so").
moved Amendment No. 169A:
After Clause 49, insert the following new clause--
:TITLE3:REGISTER OF OFFENDERS
(" .--(1) Where a person is found guilty of an offence under section 49 this fact shall be recorded on a register which the Secretary of State shall establish and maintain in such manner as will afford convenient and rapid access to anyone with a material interest in knowing whether or not a person has been found guilty of an offence under section 49.
(2) Pursuant to subsection (1) the Secretary of State shall lay before Parliament within three months of Royal Assent to this Act his directions as to how the register shall be established and maintained, and the circumstances in which, and by whom, it may be accessed and at what cost.").
This amendment seeks to establish a register of offenders convicted for not handing over their encryption key or clear text. It has the support of all the UK's major children's charities: NCH Action for Children; the NSPCC; Barnardo's; Childline; the Children's Society; the National Children's Bureau; and the National Council for Voluntary Child Care Organisations. That is an indication of the seriousness with which those organisations regard this issue, which was also raised in another place.
The purpose of the amendment is to establish a register of anyone and everyone who is convicted for refusing to hand over their key so that prospective employers, on discovering that a job applicant has such a conviction, can at least ask the person concerned to explain the circumstances which led to the conviction. It does not mean that anyone convicted will necessarily be assumed to be a child pornographer, a paedophile, or anything else for that matter; but an employer would at least be alerted to the fact that the person dabbled with or used encryption software and refused to assist the police when asked, even to the point of receiving a conviction for the refusal.
This provision is particularly important for the children's charities (and many educational institutions), which routinely refer to List 99 and the Sex Offenders Register for many categories of jobs that they advertise. The amendment would establish one more register that it would be essential for them to refer to. The extra administrative burden for them would be tiny in comparison with the comfort that they would obtain from having done this check.
If someone was convicted for refusing to hand over the key and escaped going on one of the existing registers, they could then in theory secure a job working with children. Who wants to take the responsibility for the tragic consequences for a child or children if that happened?
Someone who has evidence of serious offences encrypted and installed on their machines would be sorely tempted not to hand over the key and risk conviction for the lesser offence, carrying a maximum sentence of two years. The Guardian and other newspapers have lamented the existence of that obvious escape route, but I see no immediate or clear way around it.
I make no apology for reminding the Committee of the case of Mr. Gary Glitter, who, had he encrypted the images on his PC, would probably never have been arrested in the first place. But if he had been, and had refused to hand over his key, he would never have been convicted of the offence of possessing child pornography and would never have suffered the opprobrium that went with it. He would also have escaped being on the sex offenders' register, and at least in theory, although it might be unlikely in his case, would then have been free to apply for work in a residential children's' home.
There is clearly a real need for the Government to address this issue. I am encouraged by my observation that my noble friend the Minister has heeded the justified concerns of the industry and civil liberties organisations. I hope that he will give similar consideration to the organisations that have expressed their concerns about the matter. I beg to move.
I regret to say that I must oppose the amendment. I appreciate the way in which it was put forward. I understand the reasons for it and have every sympathy with what the noble Baroness, Lady Thornton, said about the children's charities that she mentioned. I suppose that I should declare an interest and say that I act for some of them.
The way in which the amendment is drafted does not confine it to children; it gives anyone with a material interest in knowing previous convictions a right to have access to the register. It blows a hole in the fundamental principle of British justice that convictions are not public knowledge, willy-nilly, and that anybody tried for an offence is not to have, as I put it earlier, a label round their neck saying "Previous convictions: 1,2,3,4,5". If the proposal came anywhere near satisfying the basic, traditional protection of people in civil society, it would have to be much more narrowly drafted. Therefore, I must oppose it.
I find myself, not in great difficulty, but in sympathy with the spirit of the amendment of my noble friend Lady Thornton and somewhat perplexed that the noble Lord, Lord Phillips of Sudbury, does not think that its subject matter is an issue in the way in which it has been set out. He probably recognises that there is an issue but does not believe that it should be pressed in this way.
The amendment offers a fairly imaginative way around some of the problems that we have identified in the past. It is welcome that the child-caring charities, those concerned with the issue, have lent a measure of support to my noble friend in bringing the amendment forward. However, I have one or two concerns and questions about it, not least because we have to contemplate the circumstances in which individuals are convicted of offences. At its heart, the amendment suggests that offenders be placed on a register. I have no great difficulty with that principle, but I question the use to which the register might be put. I suppose that it could be asked whether it would be available for those who would employ people who cared for children. If so, there must be a variety of possibilities as to why people might offend under Clause 49. Not all such cases may arise from the possession of paedophile or similar material. That is perhaps one of the deficiencies of the clause as drafted.
There is a possibility that a register brands others who have offended, perhaps through a misplaced notion of civil liberties, by intentionally withholding information when served with a Clause 46 notice. I do not think that the amendment does the job, and it may be a dangerous path to follow. There is some light on the issue. As I understand it, registers are already in existence which provide a measure of comfort. The DfEE runs a register called List 99. I do not fully understand what it means, but that is its title. That register is compiled under the Education Reform Act 1988, Section 218(6) of which gives the Secretary of State power to give a personal direction that an individual be prohibited from employment which also involves access to children.
In relation to this debate, a person need not necessarily have a conviction for a sex offence for the Secretary of State to give such a direction. It may appear to be a draconian power, but I believe that it is equal to the problem. However, sufficient grounds must be provided about the position of the individual so that his name can be added to the register. Of course, that relies on good intelligence about the person's involvement in paedophile behaviour which cannot go before a court. The Department of Health also has a list based on similar principles.
While I fully understand the motives behind the amendment--I appreciate the ingenuity of my noble friend in moving it--in all likelihood the best way forward at this stage is to have continuing dialogue on the subject to see whether we can be helpful. The case of Gary Glitter is a lesson to us all. I do not quite see the problem to which my noble friend refers, but perhaps we need to devote further time to it. I give an undertaking to keep the situation under review. It may serve us all if further discussions take place between noble Lords with an interest in this matter and officials who have responsibility for this area of policy. With that, I hope that my noble friend will feel able to withdraw her amendment.
It may be of interest to look at some of the circumstances that surround this particular cause. Anyone who finds himself on the register as a result of the amendment must first have had a key required of him. The Minister assures us that that will arise only in exceptional circumstances and on only a very few occasions. Presumably, therefore, the individual will be one against whom there is a good deal of prima facie evidence of involvement in activities which the Government seek to prove against him. In those circumstances, surely it is possible to put such an individual on List 99, if nothing else.
The situation would be improved if the Government changed their opinion on the inclusion of Clauses 16 and 17. In those circumstances, if there is a good deal of prima facie evidence it is more than likely that it will be based on the interception of communications which at present cannot be produced in court. That must be the reason why the Government are so desperate to obtain additional evidence of wrongdoing.
As I understand it, on the sole occasion when a difficulty arose as a result of a paedophile encrypting data on a hard disk there was sufficient evidence in clear to obtain a conviction, so at least that individual ended up on the register. One hopes that in most cases, given the very narrow circumstances in which people end up with a conviction under this part of the Bill, there will be sufficient evidence available either to convict them or at least to put them on List 99. Perhaps in that way the problem will not arise. However, the inability to catch paedophiles because of their use of encryption is to be laid at the door of Clauses 16 and 17 of the Bill, not this part of it.
I thank the noble Lord, Lord Lucas, for his support. I know that he and I share an interest in this matter. I also thank my noble friend for his remarks, from which I take some comfort. We are talking about serious crimes about which the children's charities are enormously concerned. As with other serious crimes, new technology is being used. We shall take up the offer to continue the discussions. I beg leave to withdraw the amendment.
moved Amendment No. 170:
Page 52, leave out lines 42 and 43 and insert--
("during the period within which the notice is in effect, to keep secret from any specified person, or class of persons, the giving of the notice, its contents and the things done in pursuance of it, and to inform any other person who is made aware of any of those things of the requirements of the said provision").
In moving the amendment, I speak also to Amendments Nos. 172 to 174. These amendments relate to the new offence of tipping-off. It is one of the few phrases in the Bill about which one can feel friendly. It is a new offence. It has no parallel in British law. The amendments are put forward in a probing spirit, in the hope that other Members of the Committee will lend their wisdom to this debate.
There is serious unease about whether the provision will create more problems than it solves. I argue that on the ground of the barbaric complexity of the arrangements governing tipping-off. I believe that it could prove more of a stumbling block and a source of angst to operators in the e-commerce world than any other provision in the Bill. I can imagine the managing director of any one of a thousand companies writing to his or her solicitors asking, "Would you kindly advise us on our risk vis-a-vis Clause 50?" As a practising solicitor, I assure the Committee that he or she would receive a 20 or 30 page letter--solicitors guard their backs carefully these days--raising spectres that the Minister would scarcely contemplate, let alone think were within the ambit of the clause. The provision is extraordinarily wide and loose. Amendment No. 170 seeks to contain the extent and reach of the clause by requiring the notice to specify the person or class of person to whom it relates. I shall be grateful if the Minister will tell me whether the amendment is superfluous. At the end of Clause 50(3) there appear the words,
"to keep secret from a particular person".
Should one infer from that subsection that all Clause 46 notices must specify the person or persons in relation to whom the secret must be kept?
The consequences of passing information to others may be extremely difficult to contain and control. Within an organisation many people may have access to keys or protected information. They may be unaware of the consequences of passing on that information to others. It is vital that the knowledge of a Clause 46 notice can be passed from the person upon whom it is served to others within the same organisation.
I move the amendment in the hope that others will contribute to this extremely difficult issue. The Police Act 1964, as amended, provides that,
"any person who obstructs a constable in the execution of his duty shall be guilty of an offence".
That extends to tipping-off offences. The case of Regina v. Green and Moore, which was heard in the High Court in October 1981, established that quite specifically. The noble Lord, Lord Thomas of Gresford, was acting for the prosecution in that case when they secured a conviction for tipping-off.
It may help if I refer to a particular case mentioned in that judgment; the case of Regina v. Westlie, a Canadian case. A plain clothes officer was patrolling the streets of one of the less salubrious parts of Vancouver in order to see whether any of the citizens were begging or committing other offences. Mr Westlie frustrated his efforts by walking alongside him and explaining to all who were interested that he was an "under-cover pig" or an "under-cover fuzz". The police brought a prosecution under an equivalent of the old English provision of obstructing a constable in the course of his duty, and obtained a conviction.
My question is whether we need to go through the agony of this long and tortuous new clause. Why can we not rely on the old obstruction of justice provision, which appears to catch tipping-off cases in any event? I beg to move.
An important point was raised in relation to subsection (5)(b), where the idea is given that it might specify a person. Subsection (1)(b) requires,
"every other person who becomes aware of it or of its contents, to keep secret the giving of the notice, its contents and the things done in pursuance of it".
The subsection seems to be extraordinarily wide in its ambit. Does it, for example, prevent someone who has been given a notice discussing it with his solicitor? I do not know. The noble Lord, Lord Phillips, is a solicitor and he may be able to tell us. Does it mean that anybody who has received a notice cannot write to his MP? From whom must he keep it secret?
As the noble Viscount asks that question direct, I will answer. There is a provision allowing disclosure to a professional legal adviser, but not to one's bookmaker or barber.
What about a Member of Parliament? If someone wanted to complain to his MP or, indeed, write to one of your Lordships, that seems to be disbarred by the Bill. I wonder whether the Minister could confirm how that works. It does appear that the clause goes beyond laws that are in existence and which relate to other others. The Minister will have to justify the powers in the Bill for your Lordships to be reassured by Clause 50.
I, too, am mystified by the provision. The practicalities of the Bill would seem to be extraordinarily complex and perhaps when a notice is served a copy of Clause 50 could be sent along also and the person told to work out for himself who can or cannot be told. The practicalities are very real.
It would appear that the possibility of committing an offence by mistake would be serious. May one discuss it with one's secretary or one's board colleagues, or, if one is working for a subsidiary of an American company, is one not allowed to tell the principal? I imagine there could be a duty upon a director to his board and shareholders that could be contravened by not making any statement. It seems almost inconceivable that this could not be dealt with in a much more straightforward and brief manner. The notice served could specify who could and who could not be told, rather than having to work it out from a very long section of the Bill.
I had hoped to be brief, but perhaps it is worth spending a little time on the amendment. The major issue is that of secrecy and it might help if I explain the purpose of the offence.
The offence is not a new invention. Perhaps Members of the Committee opposite will be more familiar with it than I because it is based on precedents in Section 93D of the Criminal Justice Act 1988 and Section 53 of the Drug Trafficking Act 1994. We believe that the provision is needed to preserve the covert nature of an investigation and to deter deliberate and intentional behaviour designed to frustrate statutory procedures and assist others to evade detection. That is reflected in the construction of the clause.
It is important to remember that the secrecy requirement will not apply in all cases--a fact which must be understood, but has been overlooked by a number of critics. As with other parts of the Bill, some ludicrous scenarios have been painted about the perceived effect of the tipping off offence.
I shall attempt to clarify the issue. Clause 59(3) limits the occasions when such a provision may be imposed. There is simply no need for secrecy in all cases, which the Bill recognises. By definition, it need not apply when a person is asked for the key to his own data. But were another party has access to a relevant key, we believe it reasonable in certain circumstances to require him to keep quiet about being served with a notice in order to prevent a suspect, for example, discovering that he is the subject of an investigation. That is analogous to interception where, under Clause 18, a service provider is required to keep quiet--
I believe the answer is that it must be kept secret from everyone.
Some of the concerns about the offence appear to come from business which is concerned, perhaps mistakenly, that the decryption notices would perhaps be served on junior employees in an organisation who would not be permitted, because of a secrecy provision, from telling anyone senior. That was behind some of the recent criticism of the Government in seeking to act as some kind of "shadow director".
I believe that those concerns should have been allayed by the amendments we proposed to Clause 46 concerning the serving of notices on directors. However, I recognise that there may be some lingering doubts about Clause 50.
The noble Lord, Lord Phillips, asked a fundamental question about this offence. He asked why it was necessary and why we could not rely on the general interfering-with-the-course-of-justice-type provision which has existed in the past. We decided that, on balance, we would be right to have the offence in the Bill, which is why Clause 53 sets down limits as to when a secrecy requirement might be imposed because of its seriousness. We carefully considered whether an offence such as interfering with the course of justice might be more appropriate. It has also been suggested that we could have relied on contempt of court to achieve what we want by way of deterrent. However, we do not believe that that would cover everything, particularly where the Secretary of State authorised interception warrants.
We therefore believe that the provision is essential. It is contained in existing statutes and for those strong reasons it is important that we pursue it. However, I understand the strength of feeling raised by Members of the Committee who have opposed it. However, we have gone through the questions raised by the noble Lord, Lord Phillips, and we do not believe that the offence is defined too broadly. The Bill restricts the situations in which a secrecy provision can be imposed. I believe that there may be difficulties with the approach suggested by the noble Lord, Lord Phillips. Therefore, with those comments and with the undertaking that I have given, I ask Members of the Committee who have moved amendments on this issue to withdraw them.
I did quote them and I am happy to quote them again. If the noble Earl wishes me to do so, I shall be happy to send him a copy of the particular clauses to which I have referred.
"keep secret from a particular person".
Perhaps the Minister will write to me to let me know how that requirement works with the remainder of the clause. It may be that our amendment is unnecessary if that is implicit in the requirements of a proper Section 46 notice.
First, I bring the Committee some good news: we are now half-way through the Marshalled List. I have no intention of calling a Division until about half-past one in the morning, just to make sure that the Chief Whip is doing his job.
Amendment No. 171 is simple. It seems to me that offences in the area of tipping-off cause industry a good deal of concern. I refer in particular to the scenario mentioned earlier of a relatively junior employee--say, the systems manager of the computer department--being the person on whom the notice is served. Particular concern may arise if a notice is served in conjunction with the opening up of keys to continuing data traffic so that the security of a significant firm is breached. I can imagine a situation where that might occur; for example, if we had another BCCI on our hands. It may be clear that the board of directors is corrupt but they may well be employing honest people lower down.
However, it seems to me that, in order to give comfort to industry in general, people must be sure that there are adequate safeguards on the occasions when the tipping-off offence is put into place, otherwise there will be a temptation to put it there in every case. That is simply my suggestion as to what one such safeguard might be. I beg to move.
I understand the noble Lord's concern. However, this matter comes down to a question of practicalities. As the clause is drafted, we do not believe that Amendment No. 171 would add any extra safeguards. For that reason, we shall resist the amendment. I can understand the reasoning behind it and I have a degree of sympathy for it. However, I believe that, if the noble Lord reflects on the way in which we have recast our clauses under Part III, he will appreciate that this amendment is unnecessary and probably would be disproportionate in all the circumstances. For those reasons, I invite him to withdraw his amendment this evening.
I presume that the noble Lord is concerned about futureproofing. We, too, have sought to ensure that the Bill is futureproofed.
Subsection (5) has been included because the industry requested it to ensure that specific software that has been designed to give an automatic warning that a key has been compromised will not fall foul of the tipping-off offence. There are sensible security reasons for that design option.
The subsection provides a statutory defence when disclosure occurs as a result of the action of the software and the person concerned was not reasonably able to stop that from happening after being served with a notice. There is clearly a need for the provision.
We have had no little discussion within the Government about the drafting of the clause. Its present construction reflects counsel's attempt to provide something accurate and workable. Your Lordships will note that the subsection is the same as Clause 13(3) of the draft Electronic Communications Bill, which was published for consultation last summer. We have used the term "software" advisedly. It is our understanding that the defence provided in the subsection is needed to cover a design feature of particular software that triggers the disclosure.
I hope that that gives some contextual background and that the noble Lord will feel able to withdraw his amendment. I appreciate that it was tabled in an attempt to be helpful.
I entirely understand what the Minister says. However, the pattern is for what is written in software this year to migrate into hardware in a couple of years, so in a couple of years the subsection will not work if the Government leave it as it is. However, if that is how they wish it, I see no reason to argue further. I beg to ask leave to withdraw the amendment.
I tabled this amendment because I do not understand how subsection (6) works. It provides a defence that,
"the disclosure was made by or to a professional legal adviser in connection with the giving, by the adviser to any client of his, of advice about the effect of the provisions of this Part".
If I am served with a notice, presumably I toddle off to the company's legal adviser, who is then free to tell anyone else in the company. That seems to get round the intention of this part of the Bill. I beg to move.
I am sure that the noble Lord does not really want to delete subsection (6) and that this is a probing amendment. That subsection serves a particular purpose. It seems to us right that a person served with a Section 46 notice that contains a secrecy requirement because of particular circumstances should nevertheless be permitted to approach a legal professional for advice about the effect of the notice without being penalised under the tipping-off offence. It would be unfair if they were not able to do that.
I trust that that clarification helps the noble Lord and that he will now feel able to withdraw his amendment.
I point out to the noble Lord, Lord Lucas that, under subsection (8), the protection given to a legal adviser under subsection (6) does not apply if the legal adviser lets the information out in the course of furthering a criminal purpose. Doing so to enable somebody to escape the net would be a criminal act.
moved Amendment No. 176ZA:
Page 53, line 46, at end insert--
("( ) Nothing in this section shall prevent any person described in subsection (1)(a) or (b) taking such action as may be necessary to preserve the confidentiality of any communication (other than that concerning the protected information described in section 46(1)) unless such action is expressly forbidden in the section 46 notice.").
We touched briefly on this issue earlier but I seek further clarification. It seems to me that where confidentiality has been breached, under most circumstances a company should have the right to repair that breach. The Minister said he would touch on that matter again when we discussed tipping-off and I now give him that opportunity. I beg to move.
The noble Lord has caught me out. It will take me some time to find the information that he requires. I shall have to write to the noble Lord. I apologise to the Committee.
This is a long group of government amendments, the effect of which abolishes the posts of Intelligence Services Commissioner and Security Service Commissioner and replaces them with a single intelligence services commissioner. These amendments respond to the concern expressed in another place about the number of commissioners.
The post of Security Service Commissioner was introduced in the 1989 Security Service Act. The post of Intelligence Services Commissioner was introduced in the Intelligence Services Act 1994. The Security Service Commissioner has responsibility for the oversight of functions in connection with the Security Service and the Intelligence Services Commissioner carries out similar functions in relation to GCHQ and the Secret Intelligence Service. In practice, both roles have since been held by the same person, as most Members of the Committee will know. These amendments formalise that arrangement by having a single commissioner carrying out both functions, together with the additional functions required of him under the Bill.
The new commissioner will be responsible for reviewing: the Secretary of State's exercise of powers under Sections 5 to 7 of the Intelligence Services Act--warrants for interference with property or wireless telegraphy; the Secretary of State's exercise of powers in relation to the intelligence services and in relation to MoD/Armed Forces other than in Northern Ireland under Parts II and III of the RIP Bill; and the exercise and performance of functions by all three intelligence services and by MoD/Armed Forces, other than in Northern Ireland, under Parts II and III of the Bill.
Government Amendment No. 231 amends the title of the Bill to include the establishment of the new commissioner posts. I am sure that slim-lining the number of commissioners in this way will be welcomed by the Committee. I beg to move.
In moving this amendment, I shall speak also to the other amendments in the group. We are aware that concern has been raised about the proliferation of different commissioners with oversight of the various intrusive investigative techniques and we have responded by removing from the Bill the covert investigations commissioner and amalgamating that oversight function with that of the chief surveillance commissioner.
However, by doing so we have set the chief surveillance commissioner a wide-ranging and onerous task. He already has responsibility for oversight of all authorisations given under Part III of the Police Act 1997. This Bill gives him added responsibility for oversight of authorisations for covert surveillance and the use of covert sources, not only by law enforcement departments but by a large number of government departments, with offices spread across the length and breadth of the country.
In his current responsibilities relating to authorisations for interference with property, he is supported by five surveillance commissioners, who are serving or retired High Court judges. As a measure of the seriousness with which this function is taken, every authorisation given under Part III of the Police Act is scrutinised by a surveillance commissioner and, indeed, the prior approval of a surveillance commissioner is required for certain categories of authorisation. In practice, the Bill will add to these responsibilities the scrutiny and decision whether or not to give prior approval for every authorisation given for intrusive surveillance by the law enforcement agencies. That, together with their current work, will keep them fully employed.
Therefore, we must provide the chief surveillance commissioner with further assistance in order to ensure that he is able effectively to scrutinise other forms of covert surveillance and the use of covert sources by law enforcement and other public authorities. For the police alone, we expect that to involve in excess of 150,000 authorisations each year. He cannot do that alone and we anticipate that he will want to set up some form of inspectorate to assist him.
However, we also believe that it is important that the chief surveillance commissioner should be provided with some judicial support for this function. That could be done by increasing the present numbers of surveillance commissioners but there are simply not enough serving or retired high court judges out there. Instead, therefore, we propose to increase the pool of potential commissioners. These amendments will achieve that by allowing the Prime Minister, after consultation with the chief surveillance commissioner, to appoint serving or former circuit or Crown Court judges to assist in the monitoring process. By that means, we shall ensure independent judicial scrutiny of authorisations by all public authorities. I beg to move.
We recognise that this is an issue of fundamental concern to industry. The general welcome for the intentions of the Bill by industry has been qualified by that concern. Some areas of concern remain and they are reflected in the intention of the Government in amendments tabled for today or in amendments that we intend to table on Report. I note that the potential liability incurred through the disclosure of seized keys is one of the points on which industry seeks particular reassurance.
In the light of that we have actively looked into the possibility of including something on the face of the Bill to make it clear where liability lies. However, it should be borne in mind that where keys are demanded, they are most likely to be held by the technical assistance centre. A considerable amount of resource has been devoted to the establishment of that centre and a primary objective of the centre will be to look after keys securely. I am in no doubt that where the centre negligently fails in that regard, and where there is a duty of care, it will be liable for the disclosure of any keys. But I should add that I do not expect the centre to fail in that regard.
I should draw the Committee's attention to Clause 14 of the Bill and the safeguards that are to be applied to intercept material. The safeguards in Clauses 14 and 15 are built, to a large extent, on those that exist in Section 6 of the Interception of Communications Act 1985. Such high standards for protection and destruction of material have existed since then and I do not believe that any of our researches have shown any leakage. I would expect that impressive track record to continue in respect of any keys that are seized.
All that said, we have looked at the possibility of reflecting the secure position of persons acting in obedience to disclosure notices served under the Bill. The industry concern is the potential civil or criminal liability that they will face by making disclosures pursuant to a Section 46 notice. The Government reassurance, for the record, is that we believe a contractual term will be unenforceable if it puts someone in breach of meeting a statutory requirement. We expect the criminal law to be construed similarly.
The London Investment Banking Association helpfully pointed us to the Drug Trafficking Act 1994. Section 52 of that Act is the offence of failure to disclose knowledge or suspicion of money laundering. Section 52(4)states:
"Where a person discloses to a constable ... his suspicion or belief that another person is engaged in drug money laundering, or any information or other matter on which that suspicion or belief is based, the disclosure shall not be treated as a breach of any restriction imposed by statute or otherwise".
Similar wording appears in regulation 16(4) of the Money Laundering Regulations 1993.
We have looked at those pieces of legislation to see if they provide a precedent. But they do not. The cases are different. The person acting on a subjective suspicion in those two examples is not obeying a statutory requirement which unequivocally applies to his situation, whereas the person obeying a Section 46 notice is indeed obeying a statutory requirement which does unequivocally apply to his situation.
In short, there is no doubt as to the lawfulness of what the person who obeys a notice is doing. But the provisions of the Drug Trafficking Act are needed because that doubt exists. If we were to repeat such a formulation on the face of the Bill, there would be a real danger that the need to spell out the position on liability in this Bill would be inferred to apply across the statute book. Generally, that compliance with a statutory duty to disclose information does not, without express words that might be put into this Bill, provide a defence to criminal and civil liability. That could have serious implications elsewhere. We know of no precedent for such a provision and should not create one.
I appreciate that this is good and bad news. The good news is that we are clear as to the position of people served with disclosure notices. We are also confident that keys which are treated negligently will give rise to liability where a duty of care is found to exist. The bad news is that not only do we not see the need to place this on the face of the Bill, but we also see positive dangers in so doing in so far as it could impact on other parts of the statute book. The good news is the important news here, and I hope that Members of the Committee, and particularly concerned elements of industry outside, will hear what I have said. I trust therefore that the noble Lord will feel able to withdraw his amendment accordingly.
This is an important amendment. Clearly we shall have to study carefully what the Minister said because there were important elements in his response, among them that if the centre did disclose a key, then it would be liable if it disclosed it negligently. That is quite a high test in the courts, a much stronger test than that proposed in Amendment No. 179A.
The Minister also sought to reassure us about contractual liabilities in relation to companies which might find themselves in this position. He may be right--I have no reason to doubt that--in relation to United Kingdom law, but many of the liabilities about which bankers and others are worried arise from the law of other countries. That is where the liabilities will be and, in some cases, they could be extremely large. That is why there is nervousness about this provision. That is why we shall study carefully what the Minister said.
As the Minister is doubtless aware, one prominent American but London-based merchant bank has already taken steps to transfer its entire central data operation from London to Switzerland. It has put in place steps so that no authorisations or key disclosures can be actioned from any address in the United Kingdom. Therefore no employee served with that sort of notice in the UK can get at any of its keys because they are all in Switzerland and he cannot have them.
Given the quality of the people who have taken this action, I would expect this to be followed fairly quickly by other businesses taking preventive measures. The sort of action that follows from this is that, once you begin to establish your real core, central operations somewhere outside the United Kingdom to avoid this sort of legislation, other parts of your operations will follow. I do not believe that this is a healthy state of affairs for us; indeed, it is something that this Government ought to be taking seriously. They should be taking positive, not just tentative, steps to try to allay the quite reasonable concerns of industry when it comes to this sort of international obligation, as pointed out by my noble friend Lord Berkeley.
I hope that we will hear more from the Government on this area during the Report stage. But, if we do not, I shall certainly wish to return to the matter. However, for now, I shortly hope to be able to sleep on the Government's reply. I beg leave to withdraw the amendment.
About seven-and-a-half hours ago, the noble Lord, Lord Williams of Elvel, chastised my noble friend Lord Phillips for questioning the wisdom of the Marshalled List. I take courage in both hands now partly because--for reasons I do not quite understand--the noble Lord is no longer in his place. However, I am sure that he will read the Hansard report of these proceedings and "buttonhole" me tomorrow.
However, the latter is the preamble to saying that I should prefer to talk to Amendments Nos. 180, 181, 183 and 186 as a group. They all relate to this definition clause and have the same objective; namely, to try to tighten up the electronic signature and key definitions to close various loopholes. The present wording brings all sorts of applications of signature-only keys into the ambit of Clause 46 notices, which is contrary to the content of the Bill. The proposed wording would make it abundantly clear exactly when a key is being used for the purposes of signature.
Amendment No. 181 provides the third reason--"the authority"--for using an electronic signature, which is defined under Amendment No. 186. Amendment No. 183 seeks to ensure that the word "key", as applied to encryption, always implies some intent to conceal, which surely is the essence of encryption. I beg to move.
I am happy to consider the re-grouping of these amendments, as proposed by the noble Lord. These amendments hark back to concerns which underpinned noble Lords' proposed changes to Clause 46(6) by restricting access to keys that have been used solely for electronic signature purposes.
In simple terms, I suppose that an electronic signature can be described as something associated with an electronic document that is the electronic equivalent of a manual signature. Providing a definition for this in statute is somewhat trickier. I understand what the noble Lord is seeking to achieve by way of these amendments, but we believe that the definition in Clause 52(1) is clear enough. Perhaps I may just draw the important words to the attention of the Committee. Clause 52(1)(c) states that an electronic signature is anything in electronic form which,
"is used for the purpose of facilitating, by means of a link between the signatory or other source and the communication or data, the establishment of the authenticity of the communication or data, the establishment of its integrity, or both".
In respect of Amendment No. 180, I believe that I would probably go further and suggest that if signatures are encrypted they will always affect the intelligibility or accessibility of the data in question. Therefore, the effect of the amendment seems questionable--if, indeed, there is an effect. I am not certain that there is.
Amendment No. 181 seems to have an intended effect similar to Amendment No. 185 which we shall discuss later. Both address the question of whether a legal effect is intended. Similar reference to what is included in this Bill was included in the Electronic Communications Act for fear that, without it, some activity might be caught in which there had been no intent to create legal relations. The provisions as drafted here, and in the other Act, are intended to ensure that signatures are a means of creating legal relations only where that is intended and not, perhaps, by chance through the accidental operation of software. Authenticity and integrity are the crux of the matter. Clause 52(1), as drafted, says that. I hope that that deals with the point.
I turn to Amendment No. 183. We have currently cast the definition of "key" for the purposes of this part of the Bill in what we hope are clear and workable terms. A key which may be required to be disclosed is one--this is the crucial point--which allows access to the electronic data in question, or facilitates putting the electronic data into intelligible form.
This is the whole purpose of the Part III power. We believe that the current definition is clear. We are not convinced that the suggested amendment adds anything to it. We have already discussed the issue of electronic signature keys. We do not believe that the inclusion of limb (b) in Amendment No. 183 is appropriate here. It seems to try to include in the definition of a key something that is more appropriate for the definition of a signature. In as far as the only need to mention signatures in this Bill is to exclude them from what can be accessed as keys, it would be distinctly unhelpful specifically to include these signatures in the definition of keys in the first place only to exclude them later.
We have difficulties with the first limb of the amendment. What is described in the first limb seems to be an encryption key. What is relevant to this legislation is a decryption key. This is a significant difference which I am sure noble Lords will appreciate. I take it that Amendment No. 186 must be consequential to Amendment No. 181 and provides a definition of "authority" as regards an electronic signature. I have already explained why we do not believe that the proposed addition of a reference to "authority" is appropriate. It follows that this proposed definition is unnecessary. While the amendments have sought to be constructive we do not believe that they add anything to the legislation.
Amendment No. 182 merely seeks to broaden the definition of "key" and supposes that the "key" is a key as we ordinarily understand that, or at least such a key is part of the "key". We seem to have a definition in the Bill whereby if you have some kind of physical lock on information, as well as a password lock, you are home free. That seems to me unsatisfactory. I beg to move.
I believe that I have already used the word "perceptive" in regard to amendments moved by the noble Lord. This is a perceptive amendment. However, it has the consequence--I do not know whether this is intended--of widening the definition of "key". I should be interested to know whether that is the noble Lord's intention. The query really is whether the definition we have for "key" in Clause 52(1) is future-proof.
As with the rest of the Bill, we have sought to ensure that the definitions included in it are future-proofed as far as possible without making them too loose or unworkable. The definition of "key" here is probably a case in point.
I am attracted to the suggestion of the noble Lord, Lord Lucas. We have given it a good deal of consideration. However, the use of the word "thing" may be casting the definition of a key too widely. I quite like things being called things.
In drawing up these proposals we considered the issue of what might happen in the future in terms of devices used to access data--something like biometrics or electronic fingerprinting are perhaps good examples. Even these devices will ultimately be reduced to data before they can have their intended effect. The Part III power is about being required to hand over something--for example, a key or a password--which allows access to particular data or puts it into what we would accept is an intelligible means or form. We have included a reference to data in the definition of key in Clause 52(1). That is as far as we feel we can legitimately go. I appreciate the helpful way in which the noble Lord moved the amendment. However, I hope that with my explanation he will feel able to withdraw it.
I should be grateful, not now but in correspondence, if the Minister could point me to a definition of data in the context of legislation which is as wide as he seems to presume it is. Suppose one thinks of a system which is a fingerprint recognition system which does not reduce the "thing" to a digital pattern but which relies on some kind of analogue matching system, so that actually the "thing" is never reduced to data. It merely produces the answer, yes. It is very hard to describe "fingerprint" as "data" if it is never reduced to data. I suppose one might embrace it in the term "information" if one was prepared to use the philosophic version of that. I am not aware that that has been incorporated or understood in legislation. I should like to understand the basis for what the Minister is saying. The noble Lord is quite right. I am seeking to widen this to the point where we do not just think in terms of how it happens to be done at the moment--at the beginnings of cryptography--but use something other than an essentially digital password as protection. I should like the reassurance that the word "data" covers that.
I am always happy to correspond, as the noble Lord, Lord Lucas, knows. The fingerprint is an interesting example. When does the fingerprint become data? Does it become data when it is stored? I shall be happy to pursue the point further. No doubt we can pick that up with some of the other issues we shall be putting down on paper.
moved Amendments Nos. 183A to 183C:
Page 56, line 12, leave out subsection (2).
Page 56, line 16, leave out ("protected information") and insert ("information (including a key to protected information)").
Page 56, line 19, after ("concerned;") insert--
("( ) to his having an immediate right of access to it, or an immediate right to have it transmitted or otherwise supplied to him;").
"whether it is intended to have a legal effect", has to do with authenticity. Authenticity is quite well-defined by sub-paragraphs (i) and (ii). If those conditions are satisfied, I am happy that the communication is authentic. Why should legal effect have anything to do with it at all? I beg to move.
I believe that the noble Lord, Lord Lucas, thinks that this is irrelevant to the question of authenticity. The definition contained in Clause 52(5), to which this amendment refers, is exactly the same as that set down in Section 15(2) of the Electronic Communications Act 2000.
I believe that we should engineer as much consistency as possible between these two statutes. I have explained why this definition appears in the Electronic Communications Act. In that legislation we were concerned to ensure that electronic signatures had "legal effect" only where that was intended. Having felt the need to make such a clarification in that Act, we decided that it would be confusing not to replicate it in the legislation before us. I hope that it is clear to the noble Lord that we are seeking consistency here.
I understand entirely what the Minister has said. I shall have to do a little more homework to check that the two measures are truly consistent. I have happy memories of taking a Bill on construction through this House where, for the sake of consistency, a definition of construction was taken from the Taxes Act. Sometimes these matters can be taken a little too far. I beg leave to withdraw the amendment.
Matters are now moving a little too quickly for me. I find myself hoisted by my own petard here while I try to catch up with the intention behind this amendment.
The Minister will recall a letter that I received from him, to which I have referred on previous occasions, which examined the extent to which the activities of the Secretary of State were subject to review. It was pointed out that Clauses 12 to 19 were free of such review. We dwelt on that point while moving through our detailed examination of those clauses. The noble Lord said that he would consider again whether in fact that was right; namely, that some of those activities should be free of supervision.
Amendment No. 187 merely provides an opportunity to call attention to that absence. Amendment No. 188, tabled in the name of my noble friend, does this rather better and replaces the clauses. Amendment No. 189 is a similar attempt to look at the spread of powers of the commissioner. I beg to move.
Amendment No. 188 tabled in my name seeks to extend the duties of the interception of communications commissioner to cover Clauses 14 and 15 of the Bill as well as those with which he is already charged. The clauses detail the safeguards governing the restrictions on the use of intercepted material. It seemed to me that it would be helpful if the commissioner had an oversight of those matters so as to reassure those who are, as it were, at the receiving end of these provisions.
Amendments Nos. 187, 188 and 189 seek to add to the role of the interception of communications commissioner. During our discussion last week on Clause 15, I undertook to consider the position of the interception of communications commissioner in relation to that clause. We have done that and I can say to the noble Lord, Lord Cope of Berkeley, that Amendment No. 188 is not necessary.
Perhaps I may deal first with Amendment No. 188. Its ambition is simply to add Clauses 14 and 15 to the elements of Part I of the Bill which are to be overseen by the interception of communications commissioner. Noble Lords will see from subsection (2)(d)(i) of Clause 53 on page 57 that the duties of the Secretary of State under Clause 14 already fall to be overseen by the interception of communications commissioner. It is also the case that Clause 15 merely elaborates on the duties that are to be undertaken in order to ensure that the duty under Clause 14 is properly discharged. The effect is that the interception of communications commissioner already has, under the Bill as drafted, a role in the oversight of the very important regime under Clauses 14 and 15 of the Bill. I hope that the noble Lord finds that reassuring.
The ambition of Amendments Nos. 187 and 189 in the name of the noble Lord, Lord Lucas, is rather greater. These amendments seek to ensure that the entirety of Part I of the Bill is reviewed by the commissioner. I have answered the question in relation to Clauses 14 and 15--they are already under his auspices. I now move to those elements of the Bill which are not under the auspices of the commissioner and explain why that is not necessary.
There are not many clauses which are not under the interception of communications commissioner. The clauses in question are Clauses 12, 13, 16, 17, 18 and 19. No one will forget our previous detailed discussions of Clauses 12 and 13. Noble Lords opposite have impressed on us very firmly the need to offer further reassurance as to their operation. As we have indicated, the Government are seriously considering the regime under Clauses 12 and 13 and what extra reassurance can be offered. But we do not believe that there is a proper role for the interception commissioner in providing this reassurance. These assurances are about detailed technical issues and the costs involved.
Noble Lords opposite have suggested that a technical advisory board is the appropriate answer, at least in part. We accept that and continue to consider whether this board needs a statutory base. The vital and independent insight that is needed on the operation of Clauses 12 and 13 should come from industry and industry organisations. We do not see that the interception of communications commissioner can fulfil that role. In short, we continue to search for ways of providing reassurance on the operation of Clauses 12 and 13 but we do not think that this is a role for the commissioner.
Turning to Clauses 16 and 17, during our debates last week, the noble and learned Lord, Lord Lloyd, prompted a fascinating discussion of those clauses which addressed important legal points. But the import of the clauses is that they set out rules that are to be followed by the prosecutor in each case, and sometimes by judges. As such, we believe that there is no requirement for further judicial oversight on the operation of those clauses.
That leaves Clauses 18 and 19. Clause 18 carries an offence of tipping off which will only ever be effected through the courts, so there is no need for oversight by the interception of communications commissioner. To put it another way, it makes no sense for offences to be overseen. That is what is required only in respect of functions conferred by the Bill. Clause 19 is merely about the interpretation of Chapter I, which similarly does not require oversight by the commissioner.
I have spelled out why the only elements which fall outside the oversight of the interception of communications commissioner should remain outside. Clauses 14 and 15 actually fall within it. I hope that my remarks are enough to satisfy Members of the Committee and that they will feel able to withdraw their amendments or not move them when they are reached.
With respect to Amendment No. 188, I fully accept that Clause 14 is covered by the provisions in subsection (2)(d). But the wording is significantly different from that in subsection (2)(a). Subsection (2)(a) refers to a review being of the "exercise and performance" of the various matters, which is also the wording in paragraphs (b) and (c); whereas subsection (2)(d) merely states that the commissioner shall review "the adequacy of the arrangements" by which duties are sought to be discharged. It is a considerably lesser hurdle. As the arrangements we are talking about are the ones for certificated warrants, it is important that they should be properly supervised. Therefore, I hope that the Minister will reflect on his answer on that matter between now and Report.
The amendment is designed to try to ensure that the power and resources of the interception of communications commissioner are sufficient for him or her to do what is, on any reckoning, a massive job. The background is that the Bill represents a complex and vast legal superstructure necessary in order to control a burgeoning new industry, increasing in scale and scope day by day. Therefore, I do not think it is helpful to consider the power and resources of the commissioner against those currently at the behest of the existing interception commissioner.
We on these Benches feel that the duties of the commissioner under the clause are enormous. Basically, apart from the few clauses to which the noble Lord, Lord Bach, referred, he or she is the watchdog of the whole Bill. Unless there are fully adequate resources in all respects--people, machinery, equipment and so on--there is no chance that what we all so devoutly wish for will come about, namely, that the great powers and discretions under the Bill will be matched by commensurate safeguards. The motif of all these debates is concern about civil liberty issues above all others.
The commissioner's duties under subsection (2) go to the whole of the operation of the Bill, except for the few matters mentioned. It will be necessary for the commissioner to have oversight of the 10 categories of authority set out in Clause 6; of the eight categories of authority set out later in the Bill; and of the police forces, not just at chief constable level but at lower levels as will be authorised as the Bill comes into effect, where one is issuing direct surveillance authorisations and covert human intelligence authorisations. There are emergency warrants to consider, intrusive surveillance procedures to oversee. Every discussion on every amendment has pointed to the difficulty and complexity that that will involve.
I suppose that what the amendment is based upon is a doubt that in the event there will be sufficient resources available to the commissioner. Our governance is littered with individuals who have huge jobs to do with inadequate resources. I mentioned earlier the failure to deal at all with insider trading in the City, which is partly a function of lack of sufficient expertise and resources.
I am grateful to the noble Lord, Lord Bassam of Brighton, for responding as he did two days ago to a letter I wrote him on
The noble Lord, Lord Bassam of Brighton, also said in his letter that,
"Clause 54(1) imposes a duty on everyone involved in interception to disclose or provide to the Commissioner all such documents and information as he may require to carry out his functions. This means, for example, that expert technical staff in the agencies would be obliged, at the request of the Commissioner or his staff, to explain how any particular system worked".
I do not believe that that is remotely good enough. The commissioner will require his own bespoke staff and not be reliant upon calling in experts or staff from other agencies who may already be heavily involved in important work.
The Minister also said it was expected that the commissioner would have a staff of four:
"one grade 7, one higher executive officer, one administrative officer and a personal secretary".
I do not believe that they will be remotely adequate to do the job thoroughly in a way that puts the fear of god into those with these great powers that, if they do not exercise them properly and with due diligence, they are likely to be caught out. Unless that happens the people of this country will not be satisfied with the powers provided under the Bill. I am sorry to detain the Committee at this time of night, but I believe that this is a very important point. I beg to move.
For one of Her Majesty's judges, I have been silent for what must be a record time. I rise to agree with the noble Lord, Lord Phillips of Sudbury. As I am sure the Minister accepts, this is a very important point. During the six years that I held the post of commissioner up until April of this year, year after year I was able to assure the public in my reports not only about the remarkable efficiency of the system but of its integrity. I was able to say, as I firmly believed, that the possibility of the system being abused by government or government agencies was remote, almost inconceivable. That was due to the very high quality of the individuals in the agencies, the government departments concerned--the Home Office, Foreign and Commonwealth Office, the Northern Ireland Office and Scottish Office (now the Scottish Executive--the Secretaries of State of this and the previous administration, who have been most conscientious, and the individual employees of the telephone companies and the GPO. They are very carefully picked and have proved themselves totally trustworthy in operating the system.
The integrity of the system is paramount and, as the noble Lord, Lord Phillips of Sudbury, said, will become of even greater importance under the enormously increased scope of the commissioner's job as provided for under the Bill. The burden on the commissioner has already greatly increased under the present system, as is well known to the Home Office and to Ministers.
When I sat as a judge full-time in this House I spent about six weeks a year simply on the work of the commissioner. I did not find it a terrible imposition, but it was a burden on my fellow Law Lords who had to work that much harder. I believe that that point must be addressed in future. In the past 18 months or so the work has taken me, on an annual basis, at least eight weeks. Clearly, given the increased responsibilities the staff available to the commissioner must be substantially increased. I know that a good deal of thought has been given to the matter, and I look forward to hearing in more detail precisely what stage the preparations have reached. Knowing how well the problem is understood, I hope also that the points raised have been anticipated. I shall take a close interest in the matter and will be prepared to raise it in this Chamber should the need arise. The crucial factor is that the public should be able to feel that the commissioner has the knowledge and resources to carry out his functions.
We may be reaching the position where it is beyond the scope of one man or woman even if he or she is a retired judge. It may become necessary to consider, as it has with the chief surveillance commissioner, the appointment of a deputy to work in harness with the interception of communications commissioner. I am prepared to wait with interest to see what is proposed. I trust that it will be--in line with what has already been said to me privately-- adequate for the purpose. I look forward to hearing the Minister.
The noble Lord, Lord Phillips of Sudbury, is very fortunate indeed in the support he has for the principle underlying the amendment. As we have all noted, the noble and learned Lord, Lord Nolan, has sat with incredible patience for hour after hour through the late afternoon, the early evening and into the small watches of the night before speaking. The fact that he has spoken on this issue shows how deeply he feels about it. The Government are very sympathetic, of course.
In responding to an earlier amendment, we indicated that we have great sympathy with the suggestion that there should be a facility in the order made under Clause 12 to require that any capability developed should provide the commissioner with the wherewithal to fulfil his duties in the face of rapid technological development. We shall return to that question on Report.
The noble Lord, Lord Phillips, referred to Clause 53(7). That is a helpful subsection. There is further reassurance in Clause 54(1), which imposes a duty on everyone involved in interception,
"to disclose or provide to the ... Commissioner all such documents and information as he may require ... to carry out his functions".
That means, for example, that expert technical staff in the agencies would be obliged at the request of the commissioner or his staff to explain how any particular system worked and to show them the information stored on it.
The practice of successive commissioners--as the Committee knows, the current commissioner is the very distinguished judge Lord Justice Swinton Thomas--has been to make regular visits to the intercepting agencies and to inspect the warrant-issuing units of the four central government departments. Indeed, the noble and learned Lord, Lord Nolan, noted in his report for the year 1995 that he had extended his study so as to include the safeguards operated by the public telecommunications operators.
It has always been government practice (whichever government are in power), as was said by the noble and learned Lord, to provide the commissioner and his staff with the necessary office accommodation and equipment to do their job properly and effectively. I assure the Committee that that practice will continue under the new regime.
I can confirm the contents of the letter that the noble Lord, Lord Phillips of Sudbury, received recently from my noble friend about the kind of thinking at the Home Office on how best to ensure that the interception commissioner has the support and staff necessary to carry out his new functions. The Government are thinking carefully about the best way to pursue that. I do not think that there should be any question about our motives. We agree entirely with both speakers about how important that is. It would be useful if the noble Lord withdrew his amendment today. It is not an issue that is dead.
I am grateful to the noble Lord. I shall withdraw the amendment. I am grateful for what the noble and learned Lord, Lord Nolan, said.
The Minister referred to Clause 53(7). At present, subsection (7) provides for such resources as the Secretary of State considers necessary, as opposed to the objective test of the amendment--that the commissioner would be provided with such resources as may be requisite. I hope that when the Government return to the issue they will agree with that.
My interest here is merely to raise the test which the Prime Minister has to set himself in deciding whether to cut parts out of the commissioner's report.
The action will not be subject to any oversight or supervision whatever. In fact no one will know it has happened, except the commissioner who will presumably keep "mum" about it. It is a decision for the Prime Minister to make himself, and I believe it would be helpful in that context if there were some wording to indicate that it is not a test of whether it might cause some slight damage here or there. Either it is phrased in the way I have suggested, that it is serious, or we include a phrase such as "balance" to indicate that taking parts out of the report is only to be embarked upon when the consequences would be notably bad for any of the causes mentioned in that part of the Bill and that it should not be done lightly or at a whim. I am sure it would not be, but I believe that the wording of the Bill should reflect what we hope should happen. I beg to move.
The matters which have been omitted are matters which really could not be disclosed without great prejudice to national security or for the other purposes of the Bill. That may not be an answer to the point raised by the noble Lord, Lord Lucas, but, for what it is worth, my experience would not lead me to regard it as essential.
I may be fortunate enough to have an ally in the noble and learned Lord, Lord Nolan, in what I am about to say. Amendment No. 190 proposed by the noble Lord, Lord Lucas, would require that material only be excluded from any annual report where it was seriously prejudicial to national security or one of the other grounds as set out in paragraphs (a) to (d).
The Government believe it is difficult to place a specific meaning on the term "seriously" in that context. For example, if the term means "a lot" or "a great deal" it would mean that information which is damaging to a lesser extent, for example, some lesser prejudice, must be disclosed with no need to show that the public interest requires that such damage be caused. We do not believe that that would lead to a proper balance. It would mean that information damaging, for example, to the prevention or detection of serious crime would have to be published. Finally, we must not forget that the interception commissioner must be consulted on the exclusion of any matter from the annual report as laid before each House of Parliament. I hope that the noble Lord, Lord Lucas, is somewhat reassured by that explanation.
I am certainly reassured; I would expect nothing to happen other than what the noble and learned Lord, Lord Nolan, indicated has happened in the past. The Minister used the word "balance", but, as yet, there is no requirement for balance in this part of the Bill. Perhaps we should examine that issue at Report stage. In the meantime I beg leave to withdraw the amendment.
moved Amendments Nos. 190A and 190B:
After Clause 54, insert the following new clause--
:TITLE3:THE INTELLIGENCE SERVICES COMMISSIONER
(2) Subject to subsection (4), the Intelligence Services Commissioner shall keep under review, so far as they are not required to be kept under review by the Interception of Communications Commissioner--
(a) the exercise by the Secretary of State of his powers under sections 5 to 7 of the Intelligence Services Act 1994 (warrants for interference with wireless telegraphy, entry and interference with property etc.);
(b) the exercise and performance by the Secretary of State, in connection with or in relation to--
(i) the activities of the intelligence services, and
(ii) the activities in places other than Northern Ireland of the officials of the Ministry of Defence and of members of Her Majesty's forces, of the powers and duties conferred or imposed on him by Parts II and III of this Act;
(c) the exercise and performance by members of the intelligence services of the powers and duties conferred or imposed on them by or under Parts II and III of this Act;
(d) the exercise and performance in places other than Northern Ireland, by officials of the Ministry of Defence and by members of Her Majesty's forces, of the powers and duties conferred or imposed on such officials or members of Her Majesty's forces by or under Parts II and III; and
(e) the adequacy of the arrangements by virtue of which the duty imposed by section 51 is sought to be discharged--
(i) in relation to the members of the intelligence services; and
(ii) in connection with any of their activities in places other than Northern Ireland, in relation to officials of the Ministry of Defence and members of Her Majesty's forces.
(3) The Intelligence Services Commissioner shall give the Tribunal all such assistance (including his opinion as to any issue falling to be determined by the Tribunal) as the Tribunal may require--
(a) in connection with the investigation of any matter by the Tribunal; or
(b) otherwise for the purposes of the Tribunal's consideration or determination of any matter.
(4) It shall not be the function of the Intelligence Services Commissioner to keep under review the exercise of any power of the Secretary of State to make, amend or revoke any subordinate legislation.
(5) A person shall not be appointed under this section as the Intelligence Services Commissioner unless he holds or has held a high judicial office (within the meaning of the Appellate Jurisdiction Act 1876).
(6) The Intelligence Services Commissioner shall hold office in accordance with the terms of his appointment; and there shall be paid to him out of money provided by Parliament such allowances as the Treasury may determine.
(7) The Secretary of State shall, after consultation with the Intelligence Services Commissioner and subject to the approval of the Treasury as to numbers, provide him with such staff as the Secretary of State considers necessary for the carrying out of the Commissioner's functions.
(9) On the coming into force of this section the Commissioner holding office as the Commissioner under section 8 of the Intelligence Services Act 1994 shall take and hold office as the Intelligence Services Commissioner as if appointed under this Act--
(a) for the unexpired period of his term of office under that Act; and
(b) otherwise, on the terms of his appointment under that Act.
(10) Subsection (7) of section 39 shall apply for the purposes of this section as it applies for the purposes of that section.").
After Clause 54, insert the following new clause--
(" .--(1) It shall be the duty of--
(a) every member of an intelligence service,
(b) every official of the department of the Secretary of State, and
(c) every member of Her Majesty's forces, to disclose or provide to the Intelligence Services Commissioner all such documents and information as he may require for the purpose of enabling him to carry out his functions under section (The Intelligence Services Commissioner).
(2) As soon as practicable after the end of each calendar year, the Intelligence Services Commissioner shall make a report to the Prime Minister with respect to the carrying out of that Commissioner's functions.
(3) The Prime Minister shall lay before each House of Parliament a copy of every annual report made by the Intelligence Services Commissioner under subsection (2), together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (4).
(4) If it appears to the Prime Minister, after consultation with the Intelligence Services Commissioner, that the publication of any matter in an annual report would be contrary to the public interest or prejudicial to--
(a) national security,
(b) the prevention or detection of serious crime,
(c) the economic well-being of the United Kingdom, or
(d) the continued discharge of the functions of any public authority whose activities include activities that are subject to review by that Commissioner, the Prime Minister may exclude that matter from the copy of the report as laid before each House of Parliament.
(5) Subsection (7) of section 39 shall apply for the purposes of this section as it applies for the purposes of that section.").
On Question, amendments agreed to.
moved Amendment No. 190C:
After Clause 54, insert the following new clause--
(" .--(1) The Prime Minister, after consultation with the First Minister and deputy First Minister in Northern Ireland, shall appoint a Commissioner to be known as the Investigatory Powers Commissioner for Northern Ireland.
(2) The Investigatory Powers Commissioner for Northern Ireland shall keep under review the exercise and performance in Northern Ireland, by the persons on whom they are conferred or imposed, of any powers or duties under Part II which are conferred or imposed by virtue of an order under section 29 made by the First Minister and deputy First Minister in Northern Ireland acting jointly.
(3) The Investigatory Powers Commissioner for Northern Ireland shall give the Tribunal all such assistance (including his opinion as to any issue falling to be determined by the Tribunal) as the Tribunal may require--
(a) in connection with the investigation of any matter by the Tribunal; or
(b) otherwise for the purposes of the Tribunal's consideration or determination of any matter.
(4) It shall be the duty of--
(a) every person by whom, or on whose application, there has been given or granted any authorisation the function of giving or granting which is subject to review by the Investigatory Powers Commissioner for Northern Ireland,
(b) every person who has engaged in conduct with the authority of such an authorisation,
(c) every person who holds or has held any office, rank or position with the same public authority as a person falling within paragraph (a), and
(d) every person who holds or has held any office, rank or position with any public authority for whose benefit (within the meaning of Part II) activities which are or may be subject to any such review have been or may be carried out, to disclose or provide to that Commissioner all such documents and information as he may require for the purpose of enabling him to carry out his functions.
(5) As soon as practicable after the end of each calendar year, the Investigatory Powers Commissioner for Northern Ireland shall make a report to the First Minister and deputy First Minister in Northern Ireland with respect to the carrying out of that Commissioner's functions.
(6) The First Minister and deputy First Minister Ireland shall lay before the Northern Ireland Assembly a copy of every annual report made by the Investigatory Powers Commissioner for Northern Ireland under subsection (5), together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (7).
(7) If it appears to the First Minister and deputy First Minister in Northern Ireland, after consultation with the Investigatory Powers Commissioner for Northern Ireland, that the publication of any matter in an annual report would be contrary to the public interest or prejudicial to--
(a) the prevention or detection of serious crime, or
(b) the continued discharge of the functions of any public authority whose activities include activities that are subject to review by that Commissioner, they may exclude that matter from the copy of the report as laid before the Northern Ireland Assembly.
(8) A person shall not be appointed under this section as the Investigatory Powers Commissioner for Northern Ireland unless he holds or has held office as a county court judge in Northern Ireland.
(9) The Investigatory Powers Commissioner for Northern Ireland shall hold office in accordance with the terms of his appointment; and there shall be paid to him out of the Consolidated Fund of Northern Ireland such allowances as the Department of Finance and Personnel may determine.
(10) The First Minister and deputy First Minister in Northern Ireland, after consultation with the Investigatory Powers Commissioner for Northern Ireland, provide him with such staff as they consider necessary for the carrying out of his functions.").
This group of amendments introduces a new role for an investigatory powers commissioner for Northern Ireland. The new commissioner has a clearly circumscribed role--one which is circumscribed in three ways. First, it is limited to Northern Ireland. Secondly, it is limited to actions under Part II of the Bill; that is, to direct surveillance and covert sources. Thirdly, the role of the commissioner is limited to the actions of public authorities, the responsibility for which is transferred to the First Minister and Deputy First Minister in Northern Ireland and the Northern Ireland Assembly.
When the Bill was introduced in another place, it contained a role of the covert investigations commissioner. The role of that covert investigations commissioner was to oversee the actions of public authorities, other than the police and Customs, and the intelligence agencies under Part II of the Bill. Representations were received to the effect that the role could usefully be bound up within that of the chief surveillance and surveillance commissioners, already established under the Police Act 1997. That change was made by amendment in another place.
It is a simple creation and I hope that I have given adequate information on the purpose and effect of the provision. I beg to move.
moved Amendments Nos. 190D to 191B:
Page 59, line 6, leave out subsections (1) and (2).
Page 60, line 2, leave out from first ("the") to end of line 3 and insert ("Intelligence Services Commissioner").
Page 60, line 3, at end insert ("or the Investigatory Powers Commissioner for Northern Ireland").
Page 60, line 14, leave out subsection (4).
Page 60, line 21, leave out ("any") and insert ("the Chief Surveillance").
Page 60, line 33, leave out subsection (7).
On Question, amendments agreed to.
Clause 55, as amended, agreed to.
moved Amendment No. 192:
After Clause 55, insert the following new clause--
:TITLE3:ASSISTANT SURVEILLANCE COMMISSIONERS
(".--(1) The Prime Minister may, after consultation with the Chief Surveillance Commissioner as to numbers, appoint as Assistant Surveillance Commissioners such number of persons as the Prime Minister considers necessary (in addition to the ordinary Surveillance Commissioners) for the purpose of providing the Chief Surveillance Commissioner with assistance under this section.
(2) A person shall not be appointed as an Assistant Surveillance Commissioner unless he holds or has held office as--
(a) a judge of the Crown Court or a Circuit judge;
(b) a sheriff in Scotland; or
(c) a county court judge in Northern Ireland.
(3) The Chief Surveillance Commissioner may require any ordinary Surveillance Commissioner or any Assistant Surveillance Commissioner to provide him with assistance in carrying out his functions under section 55(3).
(4) The assistance that may be provided under this section includes--
(a) the conduct on behalf of the Chief Surveillance Commissioner of the review of any matter; and
(b) the making of a report to the Chief Surveillance Commissioner about the matter reviewed.
(5) Subsections (3) to (8) of section 91 of the Police Act 1997 (Commissioners) apply in relation to a person appointed under this section as they apply in relation to a person appointed under that section.").
On Question, amendment agreed to.
Clause 56 [Delegation of Commissioners' functions]:
moved Amendments Nos. 192A to 193:
Page 60, line 40, leave out from first ("the") to ("or") in line 41 and insert ("Intelligence Services Commissioner").
Page 60, line 41, after first ("Commissioner") insert (", the Investigatory Powers Commissioner for Northern Ireland").
On Question, amendments agreed to.
Clause 56, as amended, agreed to.
had given notice of his intention to move Amendment No. 194:
After Clause 56, insert the following new clause--
:TITLE3:INVESTIGATORY POWERS COMMISSION
(" .--(1) There shall be an Investigatory Powers Commission consisting of--
(a) the Commissioner under section 8 of the Interception of Communications Act,
(b) the Security Service Act Commissioner,
(c) the Intelligence Services Act Commission,
(d) the Chief Surveillance Commissioner, and
(2) The Secretary of State shall by order provide for the discharge under the general direction of the Commission of any of the functions of each of the Commissioners.
(3) The Secretary of State shall appoint one of the Commissioners to be chairman of the Commission.
(4) Schedule (Investigatory Powers Commission) shall have effect with respect to the Commission.
(5) No order shall be made under this section unless a draft of it has been laid before Parliament and approved by a resolution of each House.").
moved Amendments Nos. 194A to 195B:
Page 61, line 41, leave out paragraph (e).
Page 62, line 2, leave out (", (e)").
Page 62, line 25, at end insert ("or under any enactment contained in or made under an Act of the Scottish Parliament which makes provision equivalent to that made by that Part").
Page 62, line 33, leave out subsection (10).
Page 62, line 45, leave out from ("making") to end of line 47 and insert ("of any disclosure in an intelligible form (within the meaning of section 52) of protected information by a person who is or has been in possession of the key to that information").
On Question, amendments agreed to.
Clause 57, as amended, agreed to.
[Amendment No. 196 not moved.]
moved Amendment No. 197:
Page 85, line 26, at end insert--
("(6) If the Scottish Parliament passes a resolution calling for the removal of a member of the Tribunal, it shall be the duty of the Secretary of State to secure that a motion for the presentation of an Address to Her Majesty for the removal of that member, and the resolution of the Scottish Parliament, are considered by each House of Parliament.").
In moving Amendment No. 197, I wish to speak also to Amendments Nos. 198 and 200. I referred earlier to the decision of the Scottish Executive and Parliament to use the commissioners established under this Bill for oversight of the authorisations permitted under the Regulation of Investigatory Powers (Scotland) Bill. I applaud their decision to introduce such consistency across the UK. We believe that it is important, notwithstanding the move to devolution, that the use of such powers is used consistently across the Scottish Border as far as possible. After all, our shared objective is compatibility with convention rights.
The Scottish Executive has also elected to use the tribunal established under this Bill to provide the means of redress in instances where individuals may feel that it is owed to them after the use of the powers in this Bill. Again, we applaud that decision. Amendments Nos. 197, 198 and 200, tabled in the Government's name, are consequential on the decision of the Scottish Executive to use the tribunal in that way. The amendments in question grant a direct involvement for the Scottish Parliament or Ministers in key decisions which affect the operation of the tribunal. Those are, first, the removal of a member of the tribunal; secondly, the making of an order setting out the remedies available from the tribunal; and, thirdly, the making of rules for the tribunal.
Those three aspects are important to the operation of the tribunal. The Scottish Ministers and Parliament have a key interest in the operation of the tribunal and the amendments reflect that interest and give them significant impact into key decisions made. I hope that the amendments are welcome to the Committee. I beg to move.
moved Amendment No. 198:
Page 64, line 47, at end insert--
On Question, amendment agreed to.
Clause 59, as amended, agreed to.
Clause 60 [Tribunal procedure]
moved Amendments Nos. 198A to 199:
Page 66, line 24, leave out from first ("the") to ("or") in line 25 and insert ("Intelligence Services Commissioner").
Page 66, line 25, after first ("Commissioner") insert (", the Investigatory Powers Commissioner for Northern Ireland").
On Question, amendments agreed to.
Clause 60, as amended, agreed to.
Clause 61 [Tribunal rules]:
moved Amendment No. 200:
Page 68, line 43, at end insert--
On Question, amendment agreed to.
Clause 61, as amended, agreed to.
Clauses 62 and 63 agreed to.
Clause 64 [Effect of codes of practice]:
The Law Society of Scotland drew my attention to this point. The issue is what effect the codes of practice--about which we have heard a good deal and been promised even more--will have if a failure to comply with them will not render a person liable to criminal or civil proceedings. They seem to be rather toothless. I beg to move.
Our purpose is to draw a clear distinction between the duties imposed by the Bill and those imposed by codes of practice. The Bill sets out fundamental legal obligations, such as the safeguards that must be applied to intercepted material, which are set out in Clauses 14 and 15.
Codes of practice, on the other hand, exist primarily to provide guidance. There is an obligation in Clause 64(1) on any person exercising or performing a relevant power or duty to have regard to the provision of every code of practice in force, in so far as they are applicable.
Many other Acts contain an identical provision, such as Section 101(9) of the Police Act 1997. The issue in that case and this is to strike a balance between ensuring that codes are taken seriously and are not toothless and avoiding a person being penalised for not following the exact letter of a code for reasons such as an operational emergency that the code's author could not have foreseen. The lack of a liability also means that codes can be drafted in plain English, without the need for more complicated legal jargon which affords lots of opportunities to imagine things that the words were never intended to say.
I am sure that the noble Lord appreciates that codes of practice exist to illuminate and illustrate. No doubt he has been involved on many occasions with legislation providing for codes of practice that could be accused of being toothless, but their purpose is to explain matters and make them clear and to enable courts to interpret.
moved Amendments Nos. 200A to 201B:
Page 70, line 18, leave out from first ("Act") to ("or") in line 19.
Page 70, line 21, at end insert ("or
Page 70, line 27, leave out from ("the") to end of line 28 and insert ("Intelligence Services Commissioner").
Page 70, line 28, at end insert ("or the Investigatory Powers Commissioner for Northern Ireland").
On Question, amendments agreed to.
Clause 64, as amended, agreed to.
Clause 65 [Conduct in relation to wireless telegraphy]:
moved Amendments Nos. 202 and 203:
Page 72, line 18, at end insert--
("(8A) No regulations shall be made under subsection (4)(g) unless a draft of them has first been laid before Parliament and approved by a resolution of each House.").
Page 72, line 38, at end insert--
("(4) In section 16(2) of that Act (regulations and orders), after "the said powers" there shall be inserted ", other than one containing regulations a draft of which has been approved for the purposes of section 5(8A),".").
On Question, amendments agreed to.
Clause 65, as amended, agreed to.
Clauses 66 and 67 agreed to.
moved Amendment No. 203A:
After Clause 67, insert the following new clause--
(" .--(1) Subject to subsection (2) where--
(a) an authorisation under the relevant Scottish legislation has the effect of authorising the carrying out in Scotland of the conduct described in the authorisation,
(b) the conduct so described is or includes conduct to which Part II of this Act applies, and
(c) circumstances arise by virtue of which some or all of the conduct so described can for the time being be carried out only outwith Scotland, section 26 of this Act shall have effect for the purpose of making lawful the carrying out outwith Scotland of the conduct so described as if the authorisation, so far as is it relates to conduct to which that Part applies, were an authorisation duly granted under that Part.
(2) Where any such circumstances as are mentioned in paragraph (c) of subsection (1) so arise as to give effect outwith Scotland to any authorisation granted under the relevant Scottish legislation, that authorisation shall not authorise any conduct outwith Scotland at any time after the end of the period of three weeks beginning with the time when the circumstances arose.
(3) Subsection (2) is without prejudice to the operation of subsection (1) in relation to any authorisation on the second or any subsequent occasion on which any such circumstances as are mentioned in subsection (1)(c) arise while the authorisation remains in force.
(4) In this section "the relevant Scottish legislation" means an enactment contained in or made under an Act of the Scottish Parliament which makes provision, corresponding to that made by Part II, for the authorisation of conduct to which that Part applies.").
On Question, amendment agreed to.
Clause 68 agreed to.
Clause 69 [Orders, regulations and rules]:
moved Amendments Nos. 203B to 207:
Page 75, line 20, leave out from ("instrument") to end of line 22 and insert ("which contains any order made in exercise of a power to which this section applies (other than the power to appoint a day under section 74(2)) but which contains neither").
Page 75, line 24, after ("12(7),") insert (" 21(9),").
Page 75, line 24, after ("12(7),") insert (" 27(5),").
Page 75, line 24, after ("12(7),") insert (" 28(5A),").
Page 75, line 24 after ("12(7),") insert (" 29(4B),").
On Question, amendments agreed to.
moved Amendments Nos. 208A to 208C:
Page 75, line 24, at end insert ("nor").
Page 75, line 25, leave out from ("applies") to end of line 26.
Page 75, line 28, at end insert--
("( ) A statutory instrument containing any regulations made in exercise of a power to which this section applies shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
On Question, amendments agreed to.
Clause 69, as amended, agreed to.
Clauses 70 and 71 agreed to.
Clause 72 [General interpretation]:
In moving this amendment, I shall speak also to Amendment No. 211. I am always slightly disturbed by those rather jumbled and rambling definitions. For example, the definition of "communication" in paragraph (b) refers to "anything comprising speech" and so on and then paragraph (c) states:
"signals serving ... for the impartation of anything between persons".
If that is not speech, I do not know what it is, so why is "speech" in there if it is already covered in sub-paragraph (c)? I suppose there may be some cases of speeches in this Chamber that do not impart information, but thankfully they are rare and I am not sure that we need worry about them in this Bill.
I have attempted to produce something wider and simpler. When complicated definitions have to be construed in court, the question arises of whether they will start to compare some particular form of communication with the examples in the Bill, decide it does not fit and say that it is not communication, when for the sake of this Bill it ought to be. The same argument applies to the definition of "document", which seems to be quite limited. It includes a number of illustrations which may, in the event, limit the interpretation put on the word. When you look at how it is used in the Bill it ought to be quite broad. I beg to move.
Definitions are always difficult. We have had many arguments about definitions during the course of this Bill. The noble Lord has said that he wants to make the definition wider and, therefore, simpler. I usually believe that when a definition is made wider it becomes more complex. The definition of "communication" is based upon wording taken from Section 4 of the Telecommunications Act 1984. We are trying to achieve consistency across legislation and that is the reasoning behind it.
Communication service providers are familiar with that legislation and we have no wish to confuse the way in which the word "communication" is read in the Bill by introducing a different wording. The courts would be obliged to take account of the different definitions and I believe that that would add to the complexity. In two Acts we would have to read the word differently when we mean the same. I do not believe that making the definition wider makes it simpler; I believe it makes it more complex for the courts.
The definition of "document" is taken from Section 14(1) of the Electronic Communications Act 2000. I am sure that the noble Lord is familiar with that. Again, it is used in this piece of legislation in a way that we believe achieves consistency. We are keen that the two pieces of legislation should be compatible. The word "document" occurs in the Bill only within the phrase "document or other information", or variations of that phrase. As a consequence, we believe that the amendment is unnecessary. I trust that the noble Lord will, in the interests of efficiency and consistency, feel able to withdraw his amendment.
It is wonderful to know that there is some part of this great planet where the definition of "communication" has not changed since 1984. That fact had passed me by. For the sake of consistency and understanding, I at least should read the Act and ensure that I am happy with the dual context. I beg leave to withdraw the amendment.
moved Amendment No. 213:
Page 78, line 2, at end insert ("or a member of the Senior Management Structure of Her Majesty's Diplomatic Service").
I shall speak also to Amendments Nos. 216 and 217. Amendments Nos. 213 and 217 are government amendments and Amendment No. 216, which we intend to resist, stands in the name of the noble Lord, Lord Cope.
Amendments Nos. 213 and 217 between them are necessary to take account of the slightly different terminology used in the Diplomatic Service to describe a person of equivalent seniority to a member of the senior Civil Service. The Foreign Secretary may sign interception warrants, and it is necessary that the Bill treat his officials in the same way as it treats those of any other Secretary of State.
Amendment No. 216 would remove from the Secretary of State the power to amend the definition of "senior official" contained in Clause 72(1). The sole purpose of that power is to cater for the eventuality that a change to the structure or grading of the Civil Service might render the Bill's definition of a "senior official" obsolete--obviously we cannot allow such a thing to happen. Were such a change to be made in a non-statutory way, there would be no means of updating the definition short of primary legislation, which we do not believe would be appropriate.
I should add that this subsection does not permit the definition of a senior official to be devalued, because it obliges the Secretary of State to ensure that his amendment preserves, so far as practicable, the effect of the existing definition. Hence it would be incumbent upon him to choose that level or designation which best mirrored the current seniority of members of the senior Civil Service. I beg to move.
Perhaps I may speak briefly to Amendment No. 216.
The Minister has largely answered the points which were the reason we tabled this amendment. However, it would be interesting to know whether or not the Government have any plans to change the definition. Does it happen regularly within the Civil Service? Has it happened recently? Do they expect any changes to take place? It seemed to us that, while we accept that the provision contains a caveat that the Secretary of State has to keep, so far as practicable, the present definition, it is unlikely that the definitions of senior officials change that often.
I believe I dealt with that point. We do not have any immediate plans to change the entire structure of the Civil Service. We are trying to ensure that we have the balance right for the purposes of this Bill and ensure that it works for different departments in different ways. I cannot usefully add anything more.
moved Amendment No. 215:
Page 78, line 47, at end insert--
("(4A) For the purposes of this Act detecting crime shall be taken to include--
(a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and
(b) the apprehension of the person by whom any crime was committed; and any reference in this Act to preventing or detecting serious crime shall be construed accordingly, except that, in Chapter I of Part I, it shall not include a reference to gathering evidence for use in any legal proceedings.").
Each of the six investigatory powers in this Bill can be used for specific purposes enshrined in the Bill. All include the purpose,
"for the prevention and detection of crime".
In some cases that is further qualified by the stipulation that the purpose can only be used for serious crime. Precisely what is covered by the term "detection" of crime has never been defined in statute. Operationally, it has generally been taken to mean that powers can be used up to the point of charge. And this interpretation is currently the one adopted, for example, by the surveillance commissioners when giving prior approval to applications for intrusive surveillance made under the Police Act 1997.
However, in the case of Preston in 1994, the House of Lords considered whether there was a prohibition on the use of intercept material in evidence. That was Section 9 of the Interception of Communications Act. We had a stimulating debate on those provisions--now included in Clauses 16 and 17 of this Bill--last week. In the case of Preston the Judicial Committee reflected on the fact that interception has never been intended to play a part in the prosecution process. The noble and learned Lord, Lord Mustill, when delivering the leading judgment, rejected the view that the prevention and detection of serious crime went beyond,
"the forestalling of future crimes and the discovery that crimes had been committed in the past, and by whom and in what manner".
He particularly rejected the view that the detection of crime extended to the,
"amassing of evidence ... with a view to the prosecution of offenders".
This was not a surprising assessment.
In the case of Morgans on 17th February of this year, the noble and learned Lord, Lord Mackay, summarised the case law. In respect of the Interception of Communications Act, he clearly stated that the effect of Preston was that,
"the purposes of preventing or detecting serious crime did not include the purpose of gathering evidence of criminal proceedings in respect of such crime".
That case provides us with a difficulty in respect of this Bill. A narrow definition of "detection" is satisfactory in the case of interception, though we have tried to ensure even here that the law is as clear as possible. But the same formulation of "prevention and detection" exists in each of the five other powers of the Bill where we most certainly do want the phase to have a wider meaning and to include gathering evidence. Therefore, we believe that we must say what we intend the phrase to mean in each of the places where we use it. That is the purpose of these amendments.
We have deliberated long and hard over this matter. The result of our deliberations are now tabled before the Committee as Amendments Nos. 215, 222A, 224A and 226. Noble Lords will see from Amendment No. 215 that, across the generality of the Bill, we clarify that detection of crime includes,
"establishing by whom, for what purpose, by what means and generally in what circumstances any crime is committed; and the apprehension of the person by whom any crime was committed".
I believe that this clarification should be welcomed. It means that it is possible to use the powers in Chapter II of Part I and in Parts II and III of the Bill for the purpose spelled out in Amendment No. 215.
I believe that I have dealt with the uncertain areas and the inconsistencies in the expression of "detecting crime" across a number of existing statutes. We have tabled amendments to clarify the meaning in respect of this Bill and related legislation. I beg to move.
The effect of this group of amendments would allow government bodies to continue to use their statutory powers to obtain communications data without committing an offence under the Telecommunications Act 1984--something with which, no doubt, all Members of the Committee will be familiar. Amendment No. 220 is the key amendment in the group, while the remaining amendments are consequential. I beg to move.
moved Amendments Nos. 220, 220A, 221 and 222:
Page 87, line 11, after ("2000;") insert--
("( ) in compliance with any requirement imposed (apart from that Act) in consequence of the exercise by any person of any statutory power exercisable by him for the purpose of obtaining any document or other information;").
Page 87, line 12, leave out from second ("under") to end of line 13.
Page 87, line 15, leave out ("any Commissioner appointed under that Act of 2000") and insert ("the Interception of Communications Commissioner").
Page 87, line 16, at end insert--
("(3) In subsection (2) above 'criminal proceedings' and 'statutory power' have the same meanings as in the Regulation of Investigatory Powers Act 2000."").
On Question, amendments agreed to.
This is a very simple amendment, but one which has some consequences. The Bill provides for a regulation of investigatory powers tribunal. However, the Law Society of Scotland has pointed out to me that the relevant people will not be able to get legal aid as the Bill stands, should they appear before it. The society has suggested that that matter should be considered. I beg to move.
This amendment would provide for legal aid to be available in Scotland to applicants to the tribunal. However, the convention is that this Parliament does not legislate on devolved matters. Legal aid is a devolved matter, and the responsibility of the Scottish Executive. As such, it is not possible for the Government to accept the amendment, and I hope that the noble Lord will feel able to withdraw it.
moved Amendments Nos. 222A and 222B:
Page 87, line 17, at end insert--
(" .--(1) In section 1 of the Security Service Act 1989 (functions of the Security Service), after subsection (4) there shall be inserted--
"(5) Section 72(4A) of the Regulation of Investigatory Powers Act 2000 (meaning of 'prevention' and 'detection'), so far as it relates to serious crime, shall apply for the purposes of this Act as it applies for the purposes of the provisions of that Act not contained in Chapter I of Part I."
(2) In section 2(2)(a) of that Act (duty of Director General to secure that information not disclosed except for authorised purposes), for "preventing or detecting" there shall be substituted "the prevention or detection of".").
Page 87, line 18, leave out paragraph 4.
moved Amendments Nos. 224A to 226:
Page 87, line 45, at end insert--
(". In section 11 of the Intelligence Services Act 1994 (interpretation), after subsection (1) there shall be inserted--
"(1A) Section 72(4A) of the Regulation of Investigatory Powers Act 2000 (meaning of 'prevention' and 'detection'), so far as it relates to serious crime, shall apply for the purposes of this Act as it applies for the purposes of Chapter I of Part I of that Act." ").
Page 88, line 14, at end insert ("and after "Commissioners" there shall be inserted "and any Assistant Surveillance Commissioners holding office under section (Assistant Surveillance Commissioners) of the Regulation of Investigatory Powers Act 2000"").
Page 90, line 15, leave out ("requiring a key to protected information)") and insert ("imposing a disclosure requirement in respect of information protected by a key)").
Page 90, line 33, at end insert--
("(13) In Part VII of that Act, before section 134 there shall be inserted--
"Meaning of 'prevention' and 'detection'.
133A. Section 72(4A) of the Regulation of Investigatory Powers Act 2000 (meaning of 'prevention' and 'detection') shall apply for the purposes of this Act as it applies for the purposes of the provisions of that Act not contained in Chapter I of Part I." ").
moved Amendment No. 226A:
Page 90, line 45, at end insert--
("The Financial Services and Markets Act 2000 (c. 8)
. In section 394(7) of the Financial Services and Markets Act 2000 (exclusion of material from material of the Authority to which a person must be allowed access), for paragraphs (a) and (b) there shall be substituted--
"(a) is material the disclosure of which for the purposes of or in connection with any legal proceedings is prohibited by section 16 of the Regulation of Investigatory Powers Act 2000; or"").
Amendment No. 226A would amend the Financial Services and Markets Act 2000, updating its provisions to ensure that intercept material and related sensitive information is protected from disclosure under the new interception regime. It is a technical amendment and it merely updates the language used in that Act. I beg to move.
It appears to me that the Financial Services and Markets Act has hardly reached the statute book before we are seeking to amend it. I am sure that if the noble Lord, Lord McIntosh, had intended that the wording should be included in that Act he would have included it while the Bill was progressing through the Chamber under his tutelage. I am surprised that the noble Lord has the temerity to contradict such an experienced parliamentarian.
moved Amendment No. 227:
Page 90, leave out lines 47 to 50 and insert--
(2) In each of paragraphs 6(3) and 7(5) of Schedule 3 to that Act (references to an organisation and representative in paragraphs 5 and 8 of that Schedule), for "paragraphs 5 and 8" there shall be substituted "paragraph 5".").
On Question, amendment agreed to.
Schedule 3, as amended, agreed to.
Schedule 4 [Repeals]:
In moving Amendment No. 228, I shall speak also to Amendment No. 229. I have a long and complicated speech. I am sure that the Committee will wish to hear the whole of my lengthy explanation. Amendment No. 228 corrects an oversight in paragraph 1 of Schedule 3 and amends Section 58(1) of the Post Office Act 1953--I remember it well!--taking account of the amendment previously made to that subsection by Section 11(2) of the Interception of Communications Act 1985. We therefore do not wish to repeal Section 11(2).
Amendment No. 229 would repeal paragraph 8 of Schedule 3 to the Terrorism Act, currently before Parliament as a Bill. This repeal is consequential to Amendment No. 69, which the Government moved during the first sitting of this Committee. I beg to move.
My Lords, in moving that the House do now adjourn, perhaps I may say that I hope that the Terrorism Bill receives Royal Assent and becomes an Act.