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(c) protects only a further key the disclosure of which could not be required by virtue of this subsection").

The noble Lord said: My Lords, most of what I wanted to say in relation to Amendment No. 52 was covered by the Minister. I merely wish to record, for purposes to which we shall come tomorrow rather than today, that on this basis most of the people in the world--there are a large number of them--using PGP or similar signature systems, will find those signatures open under this Bill because they are used as dual-purpose keys. That is widespread in that and other signature systems. So when we are looking at separating signatures from other keys, we are not doing it to any great extent as regards the ordinary use of current commercial systems by ordinary people. We probably are when we come to commercial organisations, but not for individual people.

[Amendment No. 52 not moved.]

[Amendment No. 53 not moved.]

Lord Cope of Berkeley moved Amendment No. 54:



("( ) A notice under this section shall not confer any right to production of, or access to, items subject to legal privilege.").

The noble Lord said: My Lords, Amendment No. 54 is another amendment attempting to preserve legal privilege. This one was suggested to me as being

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necessary by the Law Society of Scotland and the Law Society of England and Wales as well. Judging by what happened earlier when I moved a similar amendment on behalf of the Bar Council, I shall be told it is all covered by common law. There appear to be quite a lot of lawyers on my side of this particular argument, but I accept that there appear also to be some on the government side. I beg to move.

Lord Bach: My Lords, the noble Lord, Lord Cope, as so often, is absolutely right; the magic phrase "common law" will be used to answer this particular amendment as it was used, what now seems many hours ago, earlier this evening.

We discussed the question of legally privileged material in the context of our discussion of interception under Part I of the Bill. This Bill does not rewrite the rules of evidence. If something is inadmissible because it is legally privileged, that remains the case under the Bill. That is true for all parts of the Bill.

Of course, there is the separate question of whether legally privileged material should be looked at under any part of the Bill. That is something we intend to look at under the draft statutory codes of practice and have already asked for comments on what the code should say. As regards Part III, it is important to stress that the disclosure power does not undermine safeguards in existing legislation restricting access to legally privileged material. So where, for example, such material is protected by provisions in PACE, the powers in Part III cannot be used to circumvent those safeguards since the authorities will not be permitted access to protected material which is subject to legal privilege. Where there are already safeguards in place in the underlying powers, they are not weakened by the Bill.

Then there is the question of material that turns out on decryption to be legally privileged. We deal with this in the codes. Again, I should point out that these are only preliminary drafts. If material is revealed to be protected in law so that the underlying power would not allow access to it, that material should not become available to law enforcement. I hope that that reassures the noble Lord.

Lord Cope of Berkeley: My Lords, indeed it does. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cope of Berkeley moved Amendment No. 54A:


    Page 54, line 7, at end insert-


("( ) Notwithstanding the generality of this section, for the purpose of requiring any person to provide assistance in relation to a notice issued under this section the person to whom it is addressed may
(a) serve a copy of the notice on such persons as he considers may be able to provide such assistance; or
(b) make arrangements under which a copy of it is to be or may be so served.")

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The noble Lord said: My Lords, perhaps I may, first, apologise to the House for the fact that this is a manuscript amendment that we are slipping in here for a brief discussion. I received a letter this morning from the Post Office which raises the following point, and it seemed to me to be important to place it before your Lordships.

As I am sure that many of your Lordships know, the Post Office has nowadays a ViaCode service, which is the UK's first secure electronic commerce service and was launched by the Royal Mail last year. It therefore expects to be in a position of having to respond to notices under Part III of the Bill. Under Clause 47, the notices would normally be served on a member of the board of directors, but there are no provisions for passing on the notice to others to enable compliance. There are such provisions under Part I but not in this part of the Bill.

If the notice contains, as it presumably will, a non-disclosure provision, the director may find himself in the dilemma of facing penalties either for failing to comply or for failing to keep the notice secret if he is not in a personal position to be able to comply with the notice. It seems to me and to the Post Office that if all reasonable efforts have been made to deal with such a notice--and, where appropriate, to keep it secret within the organisation--the director should not be faced with this particular Morton's Fork. The punishment for the offence can be imprisonment. To be imprisoned either way round seems to be a peculiar difficulty in which we might place directors, not just of the Post Office but also of many other companies. I believe that the Post Office has a good point. I beg to move.

Lord Bach: My Lords, we understand the intent of the amendment and know that there is continuing concern about the extent to which a tipping-off offence will come into play. Indeed, we shall address that matter in a little more detail in tomorrow's proceedings. We believe that this amendment stems from the draft codes of practice, as published on Monday. The preliminary draft code recognises at paragraph 6.9 on page 16 that a senior person in an organisation served with a notice may need assistance, either technical or otherwise, from within that organisation, or another, in order to comply with the terms of the notice.

The code goes on to say that those serving the notice should be aware of that fact and, in so far as is practicable, should ascertain in advance to whom it is "reasonable" to permit a disclosure to be made. We should always bear in mind that this issue comes into prominence only once the conditions for the imposition of a secrecy requirement have been met. The conditions, which are considerable, are set out in Clause 52.

Once a secrecy requirement has been imposed, the person serving the notice and the requirement must take reasonable steps to ascertain to whom disclosure could be made in order to give effect to the notice. The code states that these details should be noted on the relevant disclosure notice for the avoidance of any doubt. These are significant matters, which we have

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sought to address in the preliminary draft code. We shall, of course, be willing to address them further and more specifically, if that is what we are advised to do between now and the time that the codes are brought back for affirmative resolution by Parliament.

At this stage we resist the notion that the recipient of the notice may himself determine without any reference to the person who served the notice who it will be reasonable for him to copy the notice on to. The imposition of a secrecy requirement will not be a trivial matter. Certain significant thresholds will have to be met. In the event that these thresholds are met, it will be important to keep an element of control over onward disclosure of these notices. It will be perfectly possible for the recipient of the notice to come back to the person who served it upon him to clarify that he can disclose the matter further to effect the notice. That is provided for in Clause 52(9).

However, we cannot go that one step further to permit the person who is in receipt of a notice to take it into his own hands to organise disclosure. That would

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seem to eat away at the very heart of the secrecy requirement. I hope that noble Lords appreciate the importance of the secrecy requirement in certain instances. I invite the noble Lord to withdraw the amendment.

Lord Cope of Berkeley: My Lords, I certainly appreciate the importance of the secrecy requirement. I shall ponder that instructive reply. I hope that I shall have the opportunity to ponder it before we reach the later amendments to which the noble Lord referred. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach: My Lords, I beg to move that consideration on Report be now adjourned.

Moved accordingly and, on Question, Motion agreed to.

        House adjourned at twenty-nine minutes before midnight.

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