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Lord McNally: The noble Earl, Lord Northesk, has caught the spirit of our amendments. There should be a time limit. Notices should not be left open-ended. We want the provisions to work, but they should not be left hanging over companies or individuals. We want to probe the Minister on that and I shall be interested to hear his response.

Lord Bassam of Brighton: I shall deal with the entire group. The amendments all cover the duration of Section 46 notices. Some people are concerned that they will last for ever, which might place unreasonable requirements on bodies, commercial organisations or individuals. I assure noble Lords that notices will not last for an eternity and I welcome this opportunity to explain our thinking behind the current wording.

Amendments Nos. 149A, 150A and 152 would all limit the duration of notices--each in a slightly different way. The noble Earl, Lord Northesk, said that he was not wedded to 40 days. I thought that it was a Biblical reference--40 days and 40 nights--and I am impressed that he used it.

The fears about the duration of notices are misplaced. I shall try to offer some reassurance. It would not be right for a Section 46 notice to last beyond the period for which the seeking of information could be justified as necessary. There are a series of measures in the Bill to achieve that.

Clause 46(2) states that a person may serve a notice only if he believes that its imposition is necessary or likely to be of value and it must be proportionate to what he is trying to achieve. So, clearly, a notice with a long duration would be entirely inappropriate in minor cases.

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Secondly, Clause 46(4)(f), as currently drafted, requires that the notice should specify the time by which the disclosure is to be made. Again, a notice which required disclosures to be made ad infinitum would be hard to justify on any ground, proportionality included.

Thirdly, it is important to remember that the decryption power in Part III of this Bill is merely ancillary to existing powers. Clause 51(2)(a) requires that a key disclosed in pursuance of a notice is only used to access information in relation to which power to give such a notice was exercised, or could have been exercised if the key had not already been disclosed. In other words, the duration of notices will in general be tied explicitly to the duration of the underlying statutory power. So, for example, where an interception warrant is authorised for three months, the ancillary Clause 46 notice will expire shortly after the date when the warrant expires, or be renewed along with it. Search warrants under the Police and Criminal Evidence Act 1984 usually expire after 28 days. Again, a relevant Clause 46 notice would expire shortly afterwards.

Fourthly, the code of practice for Part III will set out in considerable detail appropriate duration periods for different types of notice. As we have said many times, we shall consult on the code, which is of course subject to the affirmative resolution procedure.

To sum up, there are already measures in the Bill to ensure that notices may not last for ever, as some have mistakenly believed.

I turn now to Amendment No. 153. Similar concerns about the duration of notices lie behind this amendment. But what is proposed in this amendment is unnecessary. Clause 46(2) already ensures that notices may be served only where the imposition of a disclosure requirement is necessary and proportionate. Those tests remain in place under the new construction that we are proposing for Clause 46.

Amendment No. 150 suggests that a person served with a notice should be given a reasonable time to comply with it, and that the authorising officer should take account of the technical difficulties of performing the disclosure in setting a requirement by when compliance must take place. We resisted a similar amendment in Committee in another place. I shall reiterate what we said then.

What constitutes a "reasonable" time to comply with a notice will undoubtedly vary from case to case and will depend on a number of factors. The technical capacity or expertise of the body or individual on whom the notice is served is one consideration. But it is not the only one. Whether there are particular time pressures on an investigation is clearly another consideration. Would it be reasonable, for example, to require an urgent response to a notice in genuine life and death circumstances? We might legitimately argue that it would. In other cases, a slower response might suffice. But those are questions for the person authorising the use of the decryption power to properly weigh up in the light of the particular circumstances of the case. We shall cover all those issues in the code of practice.

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As we also pointed out, the Bill as drafted provides a reasonable safeguard against unreasonable demands being made at Clause 49(3)(a) by providing a defence to the offence of failure to comply. We retain that defence in the new construction of the offence in Clause 49.

I hope that that full explanation will enable the noble Earl to withdraw the amendment.

The Earl of Northesk: I am grateful to the Minister for his response, which was, indeed, helpful. It may be that we shall return to this matter at a later stage. I remain keen on phraseology along the lines of "reasonable in the circumstances", but I take the Minister's point in relation to the code of practice, which I hope it will be possible for us to see. For the moment at least, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 150 not moved.]

Lord Bach moved Amendment No. 150ZA:


    Page 50, line 38, leave out paragraph (g) and insert--


("( ) must set out the disclosure that is required by the notice and the form and manner in which it is to be made;").

On Question, amendment agreed to.

[Amendment No. 150A not moved.]

Lord Bach moved Amendment No. 150B:


    Page 50, line 40, after ("(a)") insert ("and subsections (4A) and (4B)").

On Question, amendment agreed to.

[Amendments Nos. 151 to 152 not moved.]

Lord Bach moved Amendment No. 152A:


    Page 50, line 41, at end insert--


("(4A) Where it appears to a person with the appropriate permission--
(a) that more than one person is in possession of the key to any protected information,
(b) that any of those persons is in possession of that key in his capacity as the officer or employee of any body corporate, and
(c) another of those persons is the body corporate itself or another officer or employee of the body corporate,
a notice under this section shall not be given, by reference to his possession of the key, to any officer or employee of the body corporate unless he is a senior officer of the body corporate or it appears to the person giving the notice that there is no senior officer of the body corporate and (in the case of an employee) no more senior employee of the body corporate to whom it is reasonably practicable to give the notice.
(4B) Where it appears to a person with the appropriate permission--
(a) that more than one person is in possession of the key to any protected information,
(b) that any of those persons is in possession of that key in his capacity as an employee of a firm, and
(c) another of those persons is the firm itself or a partner of the firm,

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a notice under this section shall not be given, by reference to his possession of the key, to any employee of the firm unless it appears to the person giving the notice that there is neither a partner of the firm nor a more senior employee of the firm to whom it is reasonably practicable to give the notice.
(4C) Subsections (4A) and (4B) shall not apply to the extent that there are special circumstances of the case that mean that the purposes for which the notice is given would be defeated, in whole or in part, if the notice were given to the person to whom it would otherwise be required to be given by those subsections.").

On Question, amendment agreed to.

[Amendments Nos. 153 and 153A not moved.]

Lord Bach moved Amendment No. 153B:


    Page 50, line 42, leave out ("disclosure of a key") and insert ("making of any disclosure").

On Question, amendment agreed to.

[Amendments Nos. 154 to 158 not moved.]

Lord Bach moved Amendment No. 158A:


    Page 51, line 5, at end insert--


("( ) In this section "senior officer", in relation to a body corporate, means a director, manager, secretary or other similar officer of the body corporate; and for this purpose "director", in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.").

On Question, amendment agreed to.

Clause 46, as amended, agreed to.

Lord Bach moved Amendment No. 158B:


    After Clause 46, insert the following new clause--

EFFECT OF NOTICE IMPOSING DISCLOSURE REQUIREMENT

(".--(1) Subject to the following provisions of this section, the effect of a section 46 notice imposing a disclosure requirement in respect of any protected information on a person who is in possession at a relevant time of both the protected information and a means of obtaining access to the information and of putting it into an intelligible form is that he--
(a) shall be entitled to use any key in his possession to obtain access to the information or to put it into an intelligible form; and
(b) shall be required, in accordance with the notice imposing the requirement, to make a disclosure of the information in an intelligible form.
(2) A person subject to a requirement under subsection (1)(b) to make a disclosure of any information in an intelligible form shall be taken to have complied with that requirement if--
(a) he makes, instead, a disclosure of any key to the protected information that is in his possession; and
(b) that disclosure is made, in accordance with the notice imposing the requirement, to the person to whom, and by the time by which, he was required to provide the information in that form.
(3) Where, in a case in which a disclosure requirement in respect of any protected information is imposed on any person by a section 46 notice--
(a) that person is not in possession of the information,
(b) that person is incapable, without the use of a key that is not in his possession, of obtaining access to the information and of putting it into an intelligible form, or
(c) the notice states, in pursuance of a direction under section 47, that it can be complied with only by the disclosure of a key to the information,

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the effect of imposing that disclosure requirement on that person is that he shall be required, in accordance with the notice imposing the requirement, to make a disclosure of any key to the protected information that is in his possession at a relevant time.
(4) Subsections (5) to (7) apply where a person ("the person given notice")--
(a) is entitled or obliged to disclose a key to protected information for the purpose of complying with any disclosure requirement imposed by a section 46 notice; and
(b) he is in possession of more than one key to that information.
(5) It shall not be necessary, for the purpose of complying with the requirement, for the person given notice to make a disclosure of any keys in addition to those the disclosure of which is, alone, sufficient to enable the person to whom they are disclosed to obtain access to the information and to put it into an intelligible form.
(6) Where--
(a) subsection (5) allows the person given notice to comply with a requirement without disclosing all of the keys in his possession, and
(b) there are different keys, or combinations of keys, in the possession of that person the disclosure of which would, under that subsection, constitute compliance,
the person given notice may select which of the keys, or combination of keys, to disclose for the purpose of complying with that requirement in accordance with that subsection.
(7) Subject to subsections (5) and (6), the person given notice shall not be taken to have complied with the disclosure requirement by the disclosure of a key unless he has disclosed every key to the protected information that is in his possession at a relevant time.
(8) Where, in a case in which a disclosure requirement in respect of any protected information is imposed on any person by a section 46 notice--
(a) that person has been in possession of the key to that information but is no longer in possession of it,
(b) if he had continued to have the key in his possession, he would have been required by virtue of the giving of the notice to disclose it, and
(c) he is in possession, at a relevant time, of information to which subsection (9) applies,
the effect of imposing that disclosure requirement on that person is that he shall be required, in accordance with the notice imposing the requirement, to disclose all such information to which subsection (9) applies as is in his possession and as he may be required, in accordance with that notice, to disclose by the person to whom he would have been required to disclose the key.
(9) This subsection applies to any information that would facilitate the obtaining or discovery of the key or the putting of the protected information into an intelligible form.
(10) In this section "relevant time", in relation to a disclosure requirement imposed by a section 46 notice, means the time of the giving of the notice or any subsequent time before the time by which the requirement falls to be complied with.").

On Question, amendment agreed to.

[Amendment No. 158C not moved.]

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