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("or that to make a disclosure of the key would result in a professional legal adviser producing or giving access to items subject to legal privilege").

The noble Lord said: My Lords, we return here to the question of legal privilege. We discussed this issue yesterday in relation to a different part of the Bill. Amendment No. 75 and Amendment No. 93, which defines a lawyer--if that is not too grand a phrase to describe the effect of it--seek to preserve legal privilege in the way we discussed yesterday.

The suggestion made yesterday was that we do not need to worry because the common law will cover the issue. I have been asked why, if the common law would apply in the situations covered by these amendments under Clause 51--and, for that matter, under Clause 52--it has been necessary to legislate, for example, in the Terrorism Bill in an analogous way? The creation of statutory offences and the recognition of statutory defences require to be supplemented by legislative change in this respect and not left simply to what one might call the "magic potion" of common law coming to the rescue. I have come out of the closet--or was it back in?--to risk another legal opinion. I hasten to add that I am acting entirely on advice rather than on my own knowledge.

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As I said, this also applies to Clause 52. Amendments Nos. 82, 83 and 84 have a similar effect so far as concerns Clause 52 and, rather than repeat the words when we come to those amendments, if the answer is different and the Minister is happy to respond to those amendments, I should be content with that. I beg to move.

Lord Fraser of Carmyllie: My Lords, I regret that I was not present when this matter was raised yesterday. I have taken the opportunity of reading both the Minister's response and the contribution of the noble Lord, Lord Grabiner, for whose views I have the greatest respect.

I have a lot of sympathy for the position adopted that, if possible, these matters should be left to the common law on both sides of the Border because that allows for a flexibility in the interpretation from time to time as to what exactly is the legal privilege granted. There are difficult issues--for example, where people seek informal advice, or where they communicate after instructions have been declined--but the position seems to me to have become more complicated than was indicated last night.

My noble friend Lord Cope has pointed to the Terrorism Acts. I have stumbled across an Act which causes me some concern because it seems to be inconsistent with the line being followed last night--that is, the Data Protection Act 1984. In Section 31(2) of that Act, an exemption is granted,


    "if the data consist of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings".

That seems to me to be a classic position of what I understand the common law to be.

I am somewhat at a loss. If the common law is as clear-cut as the Minister seemed to indicate, why has it proved necessary on previous occasions to set out that legal privilege expressly on the face of the statute? In the time available to me, I have not had the opportunity to go all the way through the Data Protection Act to determine whether the exemption granted and the circumstances in which that privilege is made express on the face of the Bill is wholly apt. But it would seem to me that there is a very clear parallel. If the Minister cannot give me an explanation for the provision in the Data Protection Act today, I hope that before we reach the next stage I will be provided with an answer or an indication that we will have some express provision on the face of the Bill. In these exceptionally complicated areas of the law it would be desirable to have express provisions on the face of the Bill.

Lord Bach: My Lords, we return to legal privilege. We understand the intention behind the amendment. It is a theme that reappears, and will reappear, in other amendments. But it is important to express again that in Part III of the Bill the disclosure powers do not undermine safeguards in existing legislation restricting access to legally privileged material. As we have said before, where, for example, such material is protected

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by provisions in the Police and Criminal Evidence Act, 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 safeguards already in place in the underlying powers, they are not weakened by the Bill. This means that in circumstances where the relevant agency should not have access to legally protected material, the decryption power will not work to grant it such access. On the other hand, in circumstances where there is some access to legally protected material, albeit under strict controls, these powers should, we believe, be available to ensure that the existing power continues to be available to law enforcement in other agencies.

In so far as this amendment would remove the effectiveness of any existing powers which do provide some access to legally protected material, albeit in particular circumstances, we do not welcome them. As was said yesterday, we believe that adequate safeguards for legally protected material are essential. We expect to do that in the code of practice. As I indicated earlier, we will be happy to work up sections on legally protected material in accordance with any representations made to us. The House knows that the code of practice is in draft form only and is open to consultation. We have never said that the common law protects legally privileged material from disclosure requirements. As I have just argued, that protection will be in the code of practice.

The point about the common law is that it prevents legally privileged material from use in evidence. It is that distinction that I want to get home. As far as concerns the Data Protection Act, I shall take advantage of the very generous offer made by the noble and learned Lord, Lord Fraser of Carmyllie. We shall look at this and write to him with the position regarding the Data Protection Act.

Lord Fraser of Carmyllie: My Lords, before the noble Lord sits down, perhaps I may make this observation. I am not much comforted by his reference to PACE. Although some interviews in Scotland might be conducted observing the requirements of PACE, it is not a statute that has its effect north of the Border. The noble Lord must understand that in any response he gives to me my concern is not only about the position on this side of the Border, but, as the Bill extends also to Scotland, that the position is equally maintained north of the Border.

Lord Bach: My Lords, all I can say is that the author of that Bill, who actually spoke about it yesterday, has much to be proud of. As someone who practised at the Criminal Bar in England, I know that it absolutely revolutionised the way in which police evidence was given and accepted. As to its scope in Scotland, I have to bow down to the noble and learned Lord whose

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knowledge of events north of the Border is much greater than mine. I ask the noble Lord, Lord Cope, to withdraw his amendment.

Lord Cope of Berkeley: My Lords, I cannot say that I am happy about this matter. It is something about which I shall have to take further advice. Clearly, I am not sufficiently knowledgeable to argue about it off the cuff. However, I make two observations. First, patently the situation in Scotland needs to be considered. The Minister promised to do that. Secondly, I am a little sceptical of the reaction of lawyers to being told, "Do not worry. Your position will be protected by the code of practice". That will not be statutory or legal protection; it will only be the intention of the Government and their agencies. It will not be legally binding on them. I must consider this matter carefully with others before deciding what to do next. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 76 not moved.]

Clause 52 [Tipping-off]:

Lord McNally moved Amendment No. 77:


    Page 57, leave out lines 6 to 9 and insert ("that any of the matters falling within subsection (1A) not be disclosed to any person such that--


(a) the safety or well-being of any person;
(b) the effectiveness of any investigation or operation; or
(c) the effectiveness of a specific investigatory technique,
would be affected by such a disclosure.
(1A) The matters that may be provided for under subsection (1) are--
(a) the giving of the notice;
(b) the content of the notice; or
(c) the things done in pursuance of the notice.").

The noble Lord said: My Lords, we reach Clause 52, the famous "tipping-off" clause. I notice that the noble Lord, Lord Cope, the noble Viscount, Lord Astor, and the noble Earl, Lord Northesk, have tabled amendments to this clause as well. Perhaps I may make a general comment, on which I should be interested to receive a response from the Minister. The CyberLaw Research Unit of the University of Leeds--a new name for the noble Lord to put in his little black book--says of the tipping-off clause:


    "The tipping-off offence in respect of key seizure is effectively useless for its presumed purpose of preventing those whose keys are seized from tipping-off their colleagues about the Government interest. It has been accepted by the Government that a person whose keys are seized is free to issue a new key immediately although they cannot say that they have done this because of key seizure. But if, on all other occasions in which they issue a new key, they simply say 'here is my new key--my old key is now insecure but not as a result of key seizure', their criminal colleagues can immediately see that the absence of an explanation identifies a law enforcement interest".

I wonder whether there is such a glaring loophole, because, as the Minister knows, of general concern is not the malicious tipping-off but the dilemmas in which it would put wholly innocent people. Amendments No. 77 to 80, standing in my name and

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that of my noble friend Lord Phillips, seek to tip the balance in tipping-off away from accidental incrimination by making it clear that such accidental incrimination will not fall foul of the law, and that the offence will require actual damage before prosecution. I beg to move.

7 p.m.

Lord Bassam of Brighton: My Lords, I must say that I am not as intimately familiar with the findings or practices of the Leeds University CyberLaw Research Unit, nor do I share the absolute knowledge apparently shown by the noble Lord as regards issues such as key seizure, which for a moment I thought might be a form of ghastly malady.

The proposed amendments are the first of a number relating to the circumstances when a secrecy provision may be included in a Section 47 notice. Several general points need to be made on this issue, to which no doubt we shall come when we discuss Amendment No. 85 in the name of the noble Lord, Lord Lucas. At this point I shall confine myself to giving an explanation of why I believe that Amendments Nos. 77 to 80 are undesirable. Ultimately they are undesirable because we believe them to be unnecessary.

We would argue that the present construction of Clause 52 contains a clearly stated requirement in subsection (1) and a secrecy provision can be imposed only when the tests set out in subsection (3) of that clause are fulfilled. In our view, the proposed amendments in this grouping would jumble things around and, we believe, cause difficulties as a consequence. The recipient of a notice would be left needing to exercise some judgment as to whether any disclosure would "affect"--to use the phrase proposed here--any of the matters listed in subsection (1) of the proposed changed clause. We do not believe that this can be right. Furthermore, we are not sure that the word "affect" is either appropriate or right in those circumstances.

More important, Amendment No. 78 would have the effect of removing one of the important safeguards in Clause 52. I do not think that that is what the noble Lord wishes to achieve. Subsection (3) of Clause 52 is there for a purpose. It limits the occasions when a secrecy requirement may be imposed. It says that a secrecy requirement may be included in a Section 47 notice only where this relates to information which has come, or is likely to come, into the possession of the police, HM Customs or the intelligence services--and then only in restricted circumstances. This is an important restrictive safeguard which would be lost through the change proposed by Amendment No. 78. As I said, I do not believe that that is the intention of the noble Lord, but it most certainly would be the effect. It would open things up so that any public authority could consider asking for a secrecy provision to be included in a Section 47 notice. It would widen the possible use of the secrecy requirement. We do not believe that that is right. There is no operational necessity for it.

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I know that the Government have been criticised over the proposed tipping-off offence in Clause 52. We do not believe that those criticisms are justified. The clause is carefully worded and contains safeguards and restrictions. Indeed, I believe that some commentators have now begun to acknowledge that. However, we do believe that these amendments would damage the position. I am sure that that would not be the intention either of the Leeds University CyberLaw Research Unit or of the noble Lord, but that would be the effect. I trust, with that explanation, that the noble Lord will feel able to withdraw the amendment.


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