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Viscount Goschen: My Lords, the Minister has made some important and welcome concessions. My noble friend Lord Lucas may be only an amateur but he is a gifted one in this regard. The Minister has suggested that my noble friend's amendment cannot be accepted on procedural grounds. However, the amendment could be referred to the other place, should that be the will of the House.

Lord Phillips of Sudbury: My Lords, we on these Benches concur entirely with what has been said by the noble Lords, Lord Lucas and Lord Cope of Berkeley. I suppose that there is a curiosity to see whether or not the reporting requirement to the chief surveillance commissioner on the one hand and the intelligence services commissioner on the other is sufficient. However, I fully accept that there is a right to report to the Prime Minister. In the light of experience Parliament may want to review whether there should be any further embellishment of that requirement and whether the relevant commissioner should have to refer the matter to a High Court judge with the matter in issue being, in effect, suspended until that occurs. Subject to that question mark, we are entirely in support of what is a crucial amendment to one of the heartland provisions of the whole Bill.

5.45 p.m.

Lord Bassam of Brighton: My Lords, I am not the world's greatest expert on procedure but the Companion states that manuscript amendments are not permitted at Third Reading and that the principal purposes of amendments at Third Reading are to clarify any remaining uncertainties, to improve the drafting and to enable the Government to fulfil undertakings given at an earlier stage of the Bill.

I fully accept the spirit in which the noble Lord's amendment is moved. However, it introduces an element of contradiction. Our amendments have imposed a duty on chief constables to notify the judicial commissioner of the giving of a direction within seven days of the giving of that direction. The noble Lord wants to tighten that time-scale to as soon

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as possible after the giving of the direction. We argue that that is not necessary. It would constitute bad policing and poor management to hold back a notification for longer than is necessary. We believe that the duty on chief officers is as robust as that which the noble Lord seeks. The wording that the noble Lord suggests might delay matters. Therefore, I cannot accept an amendment that is outside the procedures of the House. As I said, it is not necessary.

Viscount Goschen: My Lords, with the leave of the House, does the noble Lord accept that, should the House accept my noble friend's amendment, that amendment would then be considered in the other place and it would be open to Members of the other place to amend my noble friend's amendment to correct the drafting problems which the Minister has mentioned and we could all live happily ever after?

Viscount Astor: My Lords, does the Minister agree that if the amendment has been accepted it is within the procedure of the House? To say that the amendment is outside the procedure of the House is wrong and contrary to the rules of the House.

Lord Bassam of Brighton: My Lords, the point I tried to make when I said that the amendment was outside the procedure of the House is that if the noble Lord were to rewrite the amendment, it would be a manuscript amendment. However, I also questioned whether the amendment is necessary. I said that I fully accept the spirit behind the amendment. I also thought that I made it plain that we do not feel that it is necessary to include the amendment in the Bill as we can include it in an appropriate form in the code of practice. The code of practice will be an important measure, particularly in regard to interpreting legislation. As I say, we cannot accept a defective amendment and we cannot, as it were, spirit up a manuscript amendment and accept it simply because we feel that that is the right thing to do. Amendments should be properly circulated to enable them to be fully debated.

Lord Eden of Winton: My Lords, what action would the Minister take if the House accepted the amendment?

Lord Bassam of Brighton: My Lords, it is for the House to decide whether to accept the amendment. If the amendment were to be accepted, we would have to advise the other place that we considered the amendment to be defective. We would invite the other place to reconsider it and suggest a more appropriate wording.

Earlier the noble Lord, Lord Lucas, referred to the matters of trust and timeliness. I readily confirm that those are precisely the values which we seek. We see no reason why anything else should be the case. I hope that I have answered the noble Lord's point.

I am pleased with the debate that has taken place with regard to the Government's amendments. We think that we have the balance right. We have an

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element of judicial involvement. As the noble Lord, Lord Cope, has rightly acknowledged, it would be foolish for law enforcement officers to ignore the reference to a judicial commissioner, particularly where the latter was concerned by the pattern of events.

We feel that we have got an appropriate level of authorisation. I am pleased that there is an acceptance of that. I ask your Lordships to reject the noble Lord's amendment; it would be wrong and inappropriate if it were to be agreed to. I urge the House to accept the government amendments in the spirit in which they have been moved and agreed.

Lord Lucas: My Lords, before the noble Lord sits down, has he any reply to the other question I asked about whether he accepts that there is a lacuna in Clause 49, which allows keys to be obtained without going through Clause 51 procedures? Does he intend to see anything done about that in another place?

Lord Bassam of Brighton: My Lords, I am not sure that I do accept that a lacuna exists. I shall take the point away and give it further consideration. That is the best way I can leave it today.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 23:


    Page 58, line 20, at end insert ("who is not a member of a police force").

On Question, amendment agreed to.

Lord Cope of Berkeley moved Amendment No. 24:


    Page 58, line 33, after ("proportionate") insert (", having regard to all the circumstances, including the effect on the reputation and business of the person,").

The noble Lord said: My Lords, in moving Amendment No. 24 I shall speak also to government Amendment No. 25--which would appear, on the face of it, to be a better drafted version of my amendment.

We are seeking to ensure that the effect on the business of someone whose key is being sought is taken into account in deciding whether or not the direction that a key should be given is proportionate to what is sought to be achieved by obtaining the key. Sometimes giving up a key may have an appalling effect on a business for which confidentiality is important. We have rehearsed this point in different ways throughout our discussions on the Bill.

The amendment, taken together with the government amendment which allows damages to be awarded if a key is lost, for example, will mean that those making the decisions to demand a key--chief constables and so on--will think carefully about who they are demanding it from. If they are demanding it from a business where huge consequences could follow, they will have to allow for that in making their decision.

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This seems a useful amendment. As I said, the Government's version is slightly different from mine; it leaves out the word "reputation", which may be correct. I am glad that the Government are supporting the point which lies behind both amendments. I beg to move.

The Earl of Northesk: My Lords, I, too, welcome the amendment. No doubt we will in due course accept the government amendment; to my mind, too, its drafting is rather better.

I have one question for the Minister. The noble Lord will recall that on Report we debated, as my noble friend said, the interaction of key disclosure provisions with confidentiality requirements from other jurisdictions. As I understood the noble Lord's response, it is not unreasonable to suppose that such obligations will always be compromised to some extent by national rules requiring disclosure of information. I can understand that; I have no problem with it. But this argument does not address the point that it remains possible for the disclosure of a key to compromise the confidentiality of information that is wholly unconnected to that which is subject to the notice.

Of necessity, this class of information would not be subject to a statutory obligation of disclosure. In effect, cross-jurisdiction obligations of confidentiality would be breached without any legal defence. It is perhaps to state the obvious that this has the capacity to create considerable legal uncertainty about the regime among the international business community--and that, in turn, could have serious consequences on the competitiveness of the UK as a centre for e-business and financial services.

Are the Government entirely satisfied that the current provisions on the face of the Bill and in their amendment are free from the legal uncertainty to which I have referred? I should welcome any comment the Minister can make to relieve my anxieties.


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