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Baroness Hollis of Heigham moved Amendments Nos. 15 and 16:



    Page 3, line 20, at end insert--


("(2F) Nothing in subsection (2B) or (2C) above shall prevent an authorised officer from exercising the powers conferred by this section for requiring information, from a person who provides a telecommunications service, about the identity and postal address of a person identified by the authorised officer solely by reference to a telephone number or electronic address used in connection with the provision of such a service.").

On Question, amendments agreed to.

[Amendments Nos. 17 to 19 not moved.]

Baroness Hollis of Heigham moved Amendment No. 20:


    Page 3, line 42, leave out ("and").

On Question, amendment agreed to.

[Amendment No. 20A not moved.]

Baroness Hollis of Heigham moved Amendment No. 21:


    Page 4, line 2, at end insert ("; and


'telecommunications service' has the same meaning as in the Regulation of Investigatory Powers Act 2000." ").

On Question, amendment agreed to.

27 Feb 2001 : Column 1162

Clause 2 [Electronic access to information]:

Lord Astor of Hever moved Amendment No. 21A:


    Page 7, line 9, after ("refuses") insert ("without reasonable excuse").

The noble Lord said: My Lords, this amendment inserts a defence of reasonable excuse into the offence provision under Clause 2.

There may be a number of valid reasons that a person cannot comply with a requirement under new Sections 109BA or 110AA. As currently drafted, the Bill takes no account of this and creates an offence of strict liability regardless of the circumstances of the particular case. We are of the view that every case should be considered on its own merits and that only wilful refusal to comply with a requirement under the Bill should be culpable. I beg to move.

Baroness Hollis of Heigham: My Lords, I am slightly puzzled as I had hoped that the noble Lord, Lord Astor, would have agreed that we had addressed this issue in paragraph 4.5 of the draft code of practice which has statutory weight. We inserted that measure in response to the concerns that the noble Lord expressed in Committee. Therefore I feel slightly miffed that we responded to those concerns in the draft code of practice but he has failed to acknowledge that. Paragraph 4.5 of the draft code of practice states:


    "If information is not provided the Authorised Officer should explain the DSS statutory powers, and the potential consequences of non-compliance. Information providers will be expected to comply with reasonable requests and the DSS will take the matter further if an individual employee is being obstructive"--

I refer to the point about wilful refusal that the noble Lord, Lord Astor, made--


    "Authorised officers must consider any reasonable excuse that a person may have for not providing the information. Examples may include industrial action, staff shortages or unforeseen sickness. The list is not exhaustive".

The example I gave in Committee was the breakdown of a computer. The code also refers to evidence that does not incriminate someone. I hope that I have addressed the concerns of the noble Lord, Lord Astor.

Earl Russell: My Lords, before the Minister sits down could she give us a little more clarification of the word "consider" in paragraph 4.5 of the code of practice? Is it fanciful of me or does that wording imply that an official could consider and turn down a reasonable excuse?

Baroness Hollis of Heigham: My Lords, in that case he would not be acting reasonably and the whole of the legislation is framed within the context of reasonableness. If it would be helpful, I am happy to strengthen the wording in the draft code to make it clear that authorised officers must not press for information where the information provider has a reasonable excuse and to cite more examples of what we would consider reasonable in the context of electronic access to data. We have a further meeting on 15th March with representatives of the information providers so we could review the code of practice that I quoted in the light of that meeting. I want to be

27 Feb 2001 : Column 1163

helpful so that everyone understands exactly what we count as good cause, so to speak, and what would be reasonably regarded as wilful refusal. I hope that noble Lords will be content with those assurances.

Lord Astor of Hever: My Lords, in the light of the Minister's helpful and positive remarks I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hollis of Heigham moved Amendment No. 22:


    After Clause 2, insert the following new clause--

CODE OF PRACTICE ABOUT USE OF INFORMATION POWERS

(" .--(1) The Secretary of State shall issue a code of practice relating to the exercise of--
(a) the powers that are exercisable by an authorised officer under section 109B of the Administration Act in relation to the persons mentioned in subsection (2A) of that section; and
(b) the powers conferred on an authorised officer by sections 109BA and 110AA of that Act.
(2) The Secretary of State may from time to time--
(a) revise the whole or any part of the code for the time being in force under this section; and
(b) issue a revised code.
(3) Before issuing or revising the code of practice under this section, the Secretary of State shall--
(a) prepare and publish a draft of the code, or of the revised code; and
(b) consider any representations made to him about the draft;
and the Secretary of State may incorporate in the code he issues any modifications made by him to his proposals after their publication.
(4) The Secretary of State shall lay before each House of Parliament the code of practice, and every revised code, issued by him under this section.
(5) The code of practice issued under this section and any revisions of the code shall come into force at the time at which the code or, as the case may be, the revised code is issued by the Secretary of State.
(6) An authorised officer exercising any power in relation to which provision must be made by the code of practice under this section shall have regard, in doing so, to the provisions (so far as they are applicable) of the code for the time being in force under this section.
(7) A failure on the part of any person to comply with any provision of the code of practice for the time being in force under this section shall not of itself render him liable to any civil or criminal proceedings.
(8) The code of practice for the time being in force under this section shall be admissible in evidence in any civil or criminal proceedings.
(9) In this section "authorised officer" has the same meaning as in Part VI of the Administration Act.").

The noble Baroness said: My Lords, I should like to speak to Amendments Nos. 22 and 54 which are pivotal. They concern the matter of the code of practice governing the provisions of Clauses 1 and 2 of the Bill.

27 Feb 2001 : Column 1164

We had a lengthy debate in Committee regarding whether or not the Bill should make provision for a code of practice. I explained that it had always been the Government's intention to have a code of practice regarding the use of provisions under Clauses 1 and 2 of the Bill--the powers to obtain information. I also explained that we did not intend to commence using those provisions until the code had been published. I recognised, however, that the House, and organisations in the private sector, wanted greater certainty on this point, and I agreed to consider whether we could bring forward a government amendment to make provision on the face of the Bill for a code of practice, which is what we have done. The detail of the proposed provision is in Amendment No. 22.

This amendment provides that the Secretary of State must consult on a draft of the code before it is published. We have already met with representatives from business and local authorities to discuss what should be in it and we shall continue to hold dialogue with them further to develop the draft code which has already been provided to your Lordships. Additionally, this provision provides for formal consultation both on a first draft after the Bill receives Royal Assent and on subsequent revisions of the code following its publication.

This amendment provides that the Secretary of State shall issue a code of practice relating to the provisions at Clauses 1 and 2. The House can thus be certain that the powers in Clauses 1 and 2 will always be exercised within its framework.

The amendment provides that the Secretary of State may revise the code of practice from time to time. The private sector organisations have suggested to us that they would find it helpful if the code of practice were regularly reviewed. A suggestion of three years has been made. We think that that might be beneficial to all concerned. It would enable private sector organisations to provide feedback--the sort of research that we discussed earlier as regards any complaints about how things were working. It would give both the private sector organisations and authorised officers in both DSS and local authorities an opportunity to say whether or not they find the code helpful. Consequently, I give an assurance to the House that we would review the code of practice within three years of its publication and that the code would be revised, if necessary, in accordance with that review.

The amendment also provides that the final version of the code of practice be laid before both Houses of Parliament and, above all, that authorised officers must have regard to the code, where it is relevant, when they exercise the powers in Clauses 1 and 2. The code of practice shall be admissible in criminal and civil proceedings. So if an authorised officer fails to comply with the code of practice that could be taken into account by a court of law.

Amendment No. 54 amends the commencement provisions of the Bill. It provides that Clauses 1 and 2 may not be commenced until the code of practice has

27 Feb 2001 : Column 1165

been published. Our discussions with the Information Commissioner, which is the Data Protection Registrar, and representatives from business indicate that this would be a welcome addition to the Bill's provisions.

Perhaps I may say a word or two about the code of practice. I emphasise that the work is in draft. Negotiations are ongoing. A document may go through many stages before it is published. At the moment it makes no reference to local authorities because we are currently in consultation. We had a helpful meeting last week, but we still have to do further work with them as to what shape the code will take. We plan to provide the next draft before the Bill reaches the Committee Stage in another place, subject to the rest of the consultations, particularly with the local authorities, proceeding satisfactorily.

I believe that in the code we have addressed the key issues of what the powers are, who will use them and how they will be used. There is an introductory chapter setting out its purposes and a specific chapter setting out the various safeguards pertaining to the use of the powers. We have tried to include examples as we have proceeded as to how the powers might be exercised.

It is a code which is primarily aimed at authorised officers. It is designed to instruct them on how they must use the powers. But we also want it to be intelligible and legible to business and to any private individual who wishes to find out more. We have endeavoured to set out what is and what is not reasonable in the exercise of the information powers. For example, we have stated that authorised officers should always consider the option of making a direct approach to the customer if they need information about them. Unless there are grounds for thinking that an investigation would be compromised by approaching the customers direct, this would be our immediate route for obtaining information. We would only make an approach to the information provider if there is no other feasible option available. At paragraph 2.9 the code makes clear that information subject to legal privilege may not be obtained under these powers. I have given a commitment that I shall return to this matter at Third Reading with an amendment to that effect because it is such an important and sensitive issue.

I hope that your Lordships will find the draft code helpful. I will, of course, take on board your Lordships' comments including those made in correspondence, if that might be helpful subsequently because, as I say, such a draft code goes through many stages of revision before it is laid before Parliament. These amendments make provision on the face of the Bill for a code of practice governing the use of provisions in Clauses 1 and 2. They also ensure that the measures in those two clauses cannot begin until the code of practice has been published and laid before both Houses of Parliament and that, before publishing the code, the Secretary of State must consult on a draft of it. We shall have further consultations in order to review the draft within three years. I hope that your Lordships will welcome these amendments. I beg to move.

27 Feb 2001 : Column 1166

5.45 p.m.

Lord Higgins: My Lords, I believe that the whole House will be very grateful for the extremely constructive and flexible attitude which the Minister has adopted throughout our proceedings on this Bill. We certainly welcome the amendment which puts the code of practice on a statutory basis. Already in the course of our debates we have picked up various points in the draft code of practice. At this stage of the proceedings I do not intend to repeat them.

However, there are one or two points which are worth questioning. The first arises from an exchange which took place a moment or two ago between the noble Baroness and my noble friend Lord Astor of Hever. I had not previously noticed that the Bill, as printed at Report stage, does not include, as it did when published at Committee stage, an assurance by the Minister that the Bill conforms to the European Convention. It is possible, although unlikely, that the form of the Bill may change during the course of its proceedings through this House and the other place in such a way that it is inconsistent with the convention.


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