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Lord Lucas: I am grateful for that explanation and am content to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas moved Amendment No. 26:


The noble Lord said: This amendment removes some words and seems to me to leave the clause saying exactly what it said before. Therefore, the words should be removed. I beg to move.

Lord Bassam of Brighton: I believe that the noble Lord has moved an amendment which is helpful, although I may be wrong. It seems that Amendment No. 26 seeks to tidy the wording of Clause 3(5)(c). However, the wording as it stands maintains a distinction between enactments contained in the Wireless Telegraphy Act 1949 and any other enactment. First, all the enactments contained in the Wireless Telegraphy Act are to be deemed relevant. Secondly, only those enactments which relate to wireless telegraphy are relevant. The wording as it stands preserves that distinction.

We believe that it is important that all enactments in the Wireless Telegraphy Act are included in this subsection and not simply those which relate to interference. From time to time, the Radio Communications Agency is required to carry out interception in the course of investigating unlicensed use of wireless telegraphy apparatus (that is rather old language; nevertheless, I am sure that it will serve), including use outside the terms and conditions of a licence. That is an offence under Section 1(1) of that Act and its detection and prevention would not fall within the terms of Clause 3(5)(a) of the Bill. Furthermore, Section 5(a) of that Act prohibits the use of radio equipment to send messages, such as a hoax 999 call. We do not believe that the Radio Communications Agency should be left without the legal capability to prevent that kind of activity.

I am sure that the noble Lord will understand the points that I have made and I trust that he will feel able to withdraw his amendment.

Lord Lucas: Now that I understand, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 agreed to.

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Clause 4 [Power to provide for lawful interception]:

Lord McNally moved Amendment No. 27:


    Page 6, line 26, at end insert—


("( ) The conditions to be prescribed by paragraph (1)(d) above shall require the Secretary of State to be satisfied that the rights in that country or territory provided by the domestic law of that country or territory for a person who has had his communication intercepted shall be no less than those set out in the European Convention of Human Rights and Fundamental Freedoms.").

The noble Lord said: As we said earlier, this Bill is international in its consequences. It may affect legislation in areas where individual human rights are not so well respected as in the United Kingdom. Amendment No. 27 is simply a probing amendment to find out how the Government view such areas. It ensures that safeguards for individual privacy rights in other jurisdictions are taken into account when activating the powers in the Bill. I beg to move.

Viscount Astor: I was rather intrigued by this amendment from the noble Lord, Lord McNally, because, as I understood from reading it, it seemed to be stating that, whatever we do in this country, we should not break the law in another country if to do so would be in contravention of the European Convention on Human Rights and Fundamental Freedoms. I am not quite sure if that is what the amendment said. The noble Lord, Lord Phillips, is shaking his head so perhaps that is not what it says. The amendment perhaps raises a more general issue. We have talked about the international effects of this Bill. Do the Government believe that the effect of this clause will mean that we shall end up breaking the law in other countries—for example, other European countries—or not? I believe that, if we are to have an international solution to what is after all a world-wide problem, we should take care on this matter.

I may have got the thrust of the noble Lord's amendment slightly wrong, but in any event I should like the Minister to explain his view is on a slightly wider point. I refer to how this provision fits in with our EU obligations.

Lord McNally: Perhaps I may clarify this point. It is not to give licence to break the law but, where we may be co-operating with jurisdictions that do not respect law and human rights in the way that we do, the Secretary of State must satisfy himself that he is not meeting requests from jurisdictions and regimes that do not respect the convention.

Lord Bach: On behalf of the Government, I wonder whether the noble Viscount, Lord Astor, is going to speak to Amendment No. 40 which is grouped with Amendment No. 27 which stands in the name of the noble Lord, Lord McNally. I do not want to encourage the noble Viscount if he is not planning to do so.

Viscount Astor: If it will help the noble Lord, I shall speak to it. Looking at the groupings, I realise it is connected but perhaps only vaguely connected.

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Amendment No. 4 is a probing amendment. Page 9, line 5, paragraph (j) refers to the interception of warrants and then goes on to state a person who,


    "for the purposes of ... an international mutual assistance agreement by the competent authorities of a country or territory outside the United Kingdom".

It may be helpful to the Committee if the Minister would say what type of person is referred to and in which countries. What is an "international mutual assistance agreement"? Is it an Act of Parliament agreement with other countries? Is it an EU convention? Are there any other conventions or Acts that the phrase encompasses? The amendment has been tabled to raise a general question relating to how this provision fits in with our international obligations. I should be grateful if the Minister would throw some light on the Government's thinking as regards Clause 6.

Lord Bach: The United Kingdom has recently signed up to a mutual legal assistance convention on criminal matters. One of its provisions will allow one member state to ask another to intercept someone's communications. This may be because that person, while committing a crime in the member state, is actually communicating from the requested state; or because the requested state is the best place to intercept the communications.

Amendment No. 27 raises the concern that the United Kingdom could be asked to intercept communications on behalf of a country with a poor human rights record. Obviously, everyone will appreciate the motives behind the amendment. No one could disagree with them.

The Minister of State in another place said that the amendment would represent an unnecessary addition to the statute book and went on to explain the reasons further in a letter to Committee Members and offered to consider a government amendment to ensure that the regulations referred to in paragraph (d) are a precondition for bringing Clause 4(1) into force. That amendment was then introduced on Report and can be found in the Bill before us at Clause 4(1)(d).

Since that provision cannot come into force until the regulations have been made and since Section 6 of the Human Rights Act makes it unlawful for the Secretary of State to act in a way which is incompatible with the convention right, the regulations will have to be ECHR compliant.

In the letter to which I referred, the Minister of State gave the following assurances. First, in the first instance, we shall apply Clause 4(1) only to member states of the European Union for the purpose of implementing Article 17 of the EU Convention on Mutual Assistance in Criminal Matters. Secondly, we shall bring Clause 4(1) into force only in parallel with regulations which limit its effect to member states of the European Union.

Thirdly, in the event that the Government may wish to extend the regulations under Clause 4(1) in the future to cover non-EU countries, I can give an assurance to the Committee that we shall look very

12 Jun 2000 : Column 1473

closely at their interception regimes to ensure that those regimes are consistent with ECHR principles before introducing any regulations.

I hope that that may go some way towards persuading the noble Lord, Lord McNally, that we are as concerned as he is about those matters and we have already taken some steps to make sure that the provisions cannot be abused.

Amendment No. 40, spoken to by the noble Viscount, Lord Astor, would remove the ability of a competent authority to make an application for an interception warrant under an international mutual assistance agreement. But our country has now signed up to the Mutual Legal Assistance Convention and I shall say a few words about that in a moment. So there must be a mechanism by which interception warrants are sought.

Routing the application through one of the persons already included on the list—Clause 6(2)—would not add any value to the process since the offence would not be occurring in the United Kingdom and it would make the process unnecessarily bureaucratic.

The draft convention on mutual assistance and criminal matters is currently being negotiated. The draft convention is intended to improve co-operation against serious and organised crime by improving the procedures for mutual legal assistance.

The convention provides that, in general, assistance should be given in accordance with the procedural requirements of the requesting member state, whereas the current presumption is that the law of the requested member state shall prevail. The convention will also provide a basis for co-operation in the use of modern methods of investigation; for example, controlled deliveries and use of modern technology—hearing by live video link and interception of telecommunications.

The mutual legal assistance regime operates in the following way. The convention makes clear that the requesting member state must always satisfy its domestic law before making a request. In practice, that means that requests from the UK would be based on a warrant issued by the Secretary of State in accordance with the same criteria which apply to applications from UK law enforcement agencies for serious crime warrants.

When requests are made under the convention, the target of the interception will be protected by the domestic laws of both the member state making the request and the member state in which the target is present. That is the double-lock system, as it is called, of safeguards endorsed by the European Communities Select Committee in its report on the draft convention in 1998.

9.15 p.m.

Lord Phillips of Sudbury: By the sound of it, that double-lock system is based on the theory of law in each country. Does it have any regard to the practical implementation of laws in both countries? In particular, I am thinking of a state whose legal

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protections may nominally be as good as ours but which, as a matter of fact, has a corrupted system which has been penetrated by criminal elements.


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