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Lord Monson: It is a relief this afternoon to follow someone with the eloquence of my noble friend Lord Bridges, which spares me from having to detain the Committee for more than a minute. My noble friend has put the case for his very well thought out amendment extremely well, as one would expect. I only wonder whether a Level 5 fine on summary conviction is adequate given the gigantic profits that can be made from publishing someone's intimate telephone conversation, but that is obviously something that one can deal with at a later stage.
Thirty or 40 years' ago eavesdroppers and people who opened other people's letters were considered beyond the pale. Those who profited from such activities were considered the lowest form of human life. Sadly, that is no longer the case. That is why an amendment like this is needed. I hope that the Committee will support it.
6.45 p.m.
Lord Williams of Mostyn: I am most grateful for the admirably clear exposition of the thinking behind this amendment, which was propounded by the noble Lord, Lord Bridges. This is a subject which the Government take with great seriousness. We recognise the widespread concern which has been expressed and also re-expressed, by the noble Lord, Lord Monson, about the publication of communications which are intended to be and are essentially private.
This is an area to which EC data protection legislation may be relevant. The 1995 general EC data protection directive establishes European-wide rules for the protection of personal data which might in some circumstances apply to telephone conversations. The Data Protection Bill currently before your Lordships' House gives effect to the directive. One of the things the Bill does is to make it an offence to disclose personal data without authorisation.
More specifically, Article 5 of the telecoms data protection directive requires member states to ensure, via national regulations, the confidentiality of communications, and in particular, to prohibit the listening, tapping, storage or other kinds of interception or surveillance of communications other than by users, without the consent of the users concerned, except when legally authorised to do so. Generally, the telecoms data protection directive has to be implemented by 24th October 1998, although there is a derogation in relation to Article 5 until October 2000.
The Government are currently considering the implementation of this directive, and the issue of whether there should be an offence of publication as well as of recording will be considered by the Government in that context.
As the noble Lord, Lord Bridges, indicated, there are important matters here: the principles of privacy, public interest and press freedom. We want to give all those different strands very careful consideration in the context of implementing the EC telecoms data protection directive. I have spent a moment or two outlining the background to indicate that the Government have taken the principle and spirit behind this amendment with some seriousness. I hope that the noble Lord, Lord Bridges, feels that I have done justice to his concerns and that on the basis of my assurance he will be able to withdraw his amendment.
Lord Monson: Before the noble Lord sits down, can he tell us what are the maximum penalties proposed in the EC directive for breaches of the rules?
Lord Williams of Mostyn: I cannot because that is a matter which is presently being considered in the context of how we implement the directive.
Lord Ackner: Before the noble Lord sits down, can he tell us what is the objection to putting into the Bill this simple provision? It means that it will come in quicker than in any other legislation. It is quite appropriate to a criminal justice Bill. On the basis of what the noble Lord says, there is clearly a need for the protection which it purports to give to be available. Are not the Government prepared to take this matter back and consider the appropriateness of this measure being inserted now in a criminal justice Bill?
Lord Williams of Mostyn: The objection is quite plain. As Members of the Committee will know, in the Data Protection Bill we have constructed in Clause 31 a very careful regime to protect different interests; namely, individual personal information privacy and the interests of a free press as reflected in Article 10 of the
European Convention on Human Rights. Since we have a duty to implement the directive, we believe that we ought to carry out the work in that context rather than in the context of the present Bill.
Lord Ackner: Will there be an offence of publishing in that legislation?
Lord Williams of Mostyn: I said a moment or two ago--perhaps I was speaking too quickly--that the Government are currently considering implementation of the directive. The issue of whether there should be an offence of publication as well as of recording will be considered by the Government in that context.
Lord Monson: I am sorry to interrupt the noble Lord again. Can he say whether there is anything in this amendment which is inconsistent with what will appear in the directive?
Lord Williams of Mostyn: I know what is in the directive, but that is not what matters. What matters is what will be in the Bill that we shall be obliged to bring before your Lordships' House. Since there is a derogation to the year 2000 and I presently lack the gift of prophecy, I cannot say the precise form of the Bill. I hope that I have set out quite carefully the fact that the Government treat this matter with great seriousness. We believe that it is in the context of the telecoms data protection directive. We shall have to give effect to it by the year 2000. That is the proper context in which to deal with this particular aspect and mischief.
Lord Bridges: I am grateful to all those noble Lords who have spoken in this brief debate and I am particularly grateful to the noble Lord, Lord Williams of Mostyn, for having investigated this matter and for speaking with his habitual courtesy and precision. He refers to two pieces of European legislation. The first concerns the protection of data and, so far as I recall this particular piece of legislation, it relates to the protection of data in computers and other electronic storage. I do not think that it is altogether appropriate to mention that in connection with this amendment. I am not familiar with the second piece of legislation. However, if, as I understand from the noble Lord's explanation, it concerns the protection and security of telecommunications and that it will require subsidiary legislation in this country in order to give it effect in the next year or so, it would seem to me that if, with the Government's assistance, we were able to perfect this amendment and insert it in the Bill that would in effect apply the regulation to which the noble Lord refers. If that is not the case I should be very glad to be informed. My present intention is to beg leave to withdraw this amendment and study the directive to which the noble Lord refers and perhaps return to the matter on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 79 [Offences racially aggravated]:
The Earl of Mar and Kellie moved Amendment No. 172:
The noble Earl said: I prefer the words "beyond reasonable doubt" proposed in Amendment No. 172 as opposed to the expression "to the satisfaction of the court". I well appreciate that the word "satisfaction" has a special meaning in legal circles but its interpretation on the street will be misleading, to say the least. The expression "beyond reasonable doubt" is the normal Scottish expression used to describe the criminal standard of proof applied in Scotland. The other expression "on the balance of probabilities" relates to the lower standard of proof rightly used in the civil courts. I believe it is helpful to all citizens to minimise the range of code words or expressions used for legal concepts. Persons who are baffled by legal language are not well served by a parliament which ends up pronouncing on everyday matters in unnecessarily obscure ways.
I am in favour of this clause. I like the add-on approach taken by the Bill. I believe that the public will be heartened to hear that an offender was sentenced for his offence and that a consecutive sentence was added on because of the racial content of the original offence. I believe that this will be a useful message for people to read about in the papers. The creation and maintenance of a multicultural society in Scotland is an aim well worth grasping. Everybody should be able to clearly understand what the law is about. I beg to move.
Lord Henley: Obviously I am not equipped to deal with Scottish legal matters and my noble and learned friend--lucky man--has already set off to return to pastures north. I rise only to say that following the advice given by the noble and learned Lord the Lord Advocate that my noble and learned friend should always follow the advice of the noble Earl, Lord Mar and Kellie, I am sure that my noble friend would agree with everything the noble Earl has had to say and will look very carefully at the response of the noble and learned Lord the Lord Advocate.
Page 67, line 17, leave out ("to the satisfaction of any court") and insert ("beyond reasonable doubt").
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