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The Earl of Erroll: Presumably these three lines protect the prosecutor from the kind of case that happened recently, where judges decided that there had been an abuse of process and people who were probably criminals were released. Judges punishing

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the police—and, effectively, the public—by releasing people who are probably criminals because there has been a technical abuse of process, is not the way to deal with the problem. In general, we should punish the authorities for an abuse of process quite separately. That should not invalidate evidence which may well convict a clearly guilty criminal—and therefore protect the public—even if that evidence has not been garnered correctly. It should carry over from this Bill into other areas to ensure that cases cannot be thrown out on various technicalities. I know that it sounds complicated.

Viscount Astor: It may be helpful to the Minister if I intervene before he replies to the noble Earl. I apologise that I was not here at the Second Reading debate; unfortunately I was abroad. I declare an interest, which I hope will suffice for the remaining stages of the Bill. I am a non-executive chairman of a company called Streetnames Plc, listed on AIM, which is an address-related Internet domain names company. It will offer e-mail addresses to businesses and private users and, by subscription, access to an Internet-based e-mail service for sending and receiving messages and attachments, and will include automatic e-mail forwarding. Therefore it might be affected by parts of the Bill—although the Bill is so complicated that I have not yet worked out which parts. No doubt I shall find out as we go through it.

Having said that, perhaps I may make a general point. I do not think that anyone on this side of the Committee doubts that interception is successful and important to the Customs and to the police. I do not think that any noble Lords want to take away those interception powers. We are concerned with the additional powers proposed in the Bill, and it would be helpful if the Minister could focus on that element.

As to my noble friend's amendment, subsection (5) concerns conduct. The final part of that subsection, which my noble friend wishes to delete, states:


    "shall also be taken to be lawful for all other purposes".

The words "other purposes" raise a question in my mind. To what "other purposes" does that refer?

Lord Lucas: Perhaps I may raise a point that the Minister does not seem to have covered which concerns the words,


    "(whether or not prohibited by this section)".

Since these three lines refer only to conduct specifically authorised under paragraphs (a) or (b), what is that phrase in brackets doing there? Does it not have the effect of making any conduct authorised for other purposes, even if it is not authorised for the purposes of the Bill? It seems a very odd phrase. I do not understand what it means and I should like some examples.

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Lord McNally: The noble Lord and the noble Viscount have put their fingers on issues which will come up time and again. It may be useful for the Minister to deal with them. There is no doubt that where phrases such as,


    "(whether or not prohibited by this section)"; "lawful for all other purposes";

and, as I mentioned on Second Reading, lots of "anys", get into the clauses, it causes concern—and the kind of blanket permissiveness which runs through this Bill is causing concern.

Going back to the initial intervention of the noble Lord, Lord Cope, it would have been far better all round if we could have seen the code of conduct under which some of these powers will be used by the authorities. We should then have been able to make a judgment on whether or not it is wise. But at the moment we are being asked to take the code of practice on trust. I am not sure that we have had any assurance from Ministers that we will see it in this House during any stage of the Bill. It would be a step forward to at least get a timetable of when we will see the code of practice and some appreciation by Ministers that,


    "lawful for all other purposes"; "(whether or not prohibited by this section)";

and all the "anys" that run through the Bill, is certainly not the kind of legislation that should be tolerated when Parliament is passing extensive powers to the executive and to the security and other services. Parliament has to be very careful.

It would probably save time as we go through the Bill if we acknowledge that we know—as the Minister emphasised—there are a lot of bad guys out there and that the authorities need powers to get after them. We want them to get after the drug smugglers and the paedophiles as much as anyone in any Whitehall department wants them to do so. But Ministers must not use the scale of the problem as a way of scaring and bouncing this House into passing slipshod or over-powerful legislation.

Viscount Goschen: I associate myself with the concerns and points raised by my noble friends Lord Lucas and Lord Astor. Almost for the first time I associate myself with concerns raised by the noble Lord, Lord McNally, from the Liberal Democrat Benches.

The issues that my noble friend Lord Lucas has highlighted within the subsection are a motif that runs throughout the Bill. Either this subsection gives very wide powers or it is badly drafted and a number of us have misunderstood it. Either way, we need a clear explanation from the Minister as to how exactly these powers are restricted when the subsection states,


    "(whether or not prohibited by this section)".

I should also declare an interest at this stage—albeit a tangential one—in that I work for a financial institution that from time to time advises companies with e-commerce interests.

Lord Bassam of Brighton: Perhaps I may first respond to some of the comments made by the noble

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Lord, Lord McNally. He offered me good advice in his observations. It is not the Government's intention to try, as he put it, to bounce the Committee into accepting poorly drafted legislation because of security needs or the needs of the various law enforcement agencies. That is not our intention. Like the noble Lord, I, too, have trouble in reading and getting my mind fully round some of the legalese language in which much of our legislation is drafted. It is not an easy task. I share his frustration and the frustration of other noble Lords in doing so.

As to the noble Lord's point about the code of practice, that will be based on the existing public code which has been used and issued by ACPO. We intend to publish a draft and to provide a full opportunity for public consultation; I cannot be precise as to when. The noble Lord makes a useful point. Perhaps it is something that should be published during the course of our discussion and debates. If that is possible, we shall seek to do that. That seems to me to be reasoned and sensible.

But, to give the noble Lord a flavour, the code shall be based around the current one, which is very useful. As I said in my opening remarks, much of the legislation is not controversial in the sense that it has been incorporated into our statutory framework, but is littered across it in small pieces. What we are trying to do here is to bring all that legislation together in a coherent fashion, modernise it, update it and make it more intelligible. I apologise if it appears that we have not succeeded in achieving that, but of course that is what we are aiming to do here.

I shall turn to the comments made by other noble Lords. I am grateful to all those who have declared their particular interest as regards this issue. I believe that we all have a certain interest here. The intervention from the noble Earl, Lord Erroll, was well intentioned but perhaps wrong. There is a prohibition on the use of intercept material. Given that, the point that he made probably does not arise. It is worth reminding ourselves that the ECHR demands that any interference with the human rights set out in Article 8 is carried out,


    "in accordance with the law".

It would not be enough to say merely that an interception warrant gives a defence to a narrow criminal offence. That is why we have set out the circumstances under which interception would be permissible. If those tests are met, the interception will generally be lawful.

I am not sure that I shall be able to provide a specific example of how that will work for the noble Lord, Lord Lucas. However, I shall give further thought to the point he made. A description of how something will work in practice is always helpful.

This kind of provision may become more common as human rights legislation begins to kick in substantially. It is no longer right to believe that an action is lawful unless it is prohibited. That is an important point to make clear. If something interferes with fundamental rights, it is generally unlawful unless it is positively allowed. I believe that we shall all come

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to understand the process better once the human rights legislation begins to have an impact on the way in which we legislate.

The amendment moved by the noble Lord would make the demands of the law unreasonable. The danger of the amendment is that it could make law enforcement staff engaged in carrying out interception liable under other legislation, even if they were operating under a properly authorised warrant. There lies the danger of this amendment and, in essence, that explains why we must object to it. I therefore suggest to the noble Lord that it might be better if the amendment was withdrawn.

5.30 p.m.

Viscount Astor: Before my noble friend decides what he wants to do with his amendment, perhaps I may say that we are grateful to the Minister for his remarks about the code of conduct, in particular when he said that a draft may be made available to noble Lords at the earliest opportunity. It would be of enormous benefit if that is the case. Indeed, I hope that it can be made available before we consider the Bill on Report. That will be advantageous to all noble Lords and, indeed, no less so to the Government, because we shall then be able to proceed through the Report stage with a much clearer understanding of the effects of the Bill.


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