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Lord McNally: Reference has been made several times to where a private body carries out the functions of a public body. That happens in a number of areas; for instance, where there are private security firms operating side by side with police forces. Where that happens, will the private body be expected to observe the standards of the public body concerned? Does the public body set the standards in observation of legislation?

Lord Bach: The answer that I have received is that if the situation is as the noble Lord, Lord McNally, describes, it would in effect make the private body a public authority for the purposes of any surveillance or covert action that it may be taking. I think that that is quite a reassuring answer in the context of the Bill.

Viscount Goschen: I am sorry to press the Minister further. Perhaps he will address the point that I raised about the uses to which information and televisual data gained by covert surveillance can be put.

Viscount Astor: While the Minister is considering that question perhaps I may thank him for his helpful explanation and ask him one simple question. I do not need an answer today, but perhaps he will write to me between now and Report stage. I am grateful for the explanation that the Royal Pharmaceutical Society of Great Britain is a public body. I must say that I was unaware of that. If it is a public body, it would be interesting to know to whom it is responsible. Is it responsible to a government department, to Ministers or to Parliament? Perhaps the Minister will write to me before the next stage and explain that. When we are adding all these public bodies, it would be useful to know where their responsibilities lie and to whom they are answerable.

Lord Bach: I shall certainly write to the noble Viscount setting out how the society becomes a public authority. I am conscious of the question, which has now been asked twice, as to what use will be made of the information that is gained from surveillance. I must be very careful how I respond to the noble

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Viscount. Obviously in certain instances it can be used to make out a case against a criminal, a spy or a terrorist. However, what the noble Viscount wants to know is whether it can be used, for example, in a television documentary in order to make a point about wrong-doing. It is quite clear that the authorisations that are granted will have to be granted on specific terms, and of course the more intrusive the surveillance the more specific the terms have to be. To answer the noble Viscount's question fully it will be necessary for me to take proper advice and then to write to him with the use to which it can be put.

Lord Lucas: If the Minister intends to write to noble Lords, I think that it certainly would be helpful to have some enlargement on the nature of public authority. I have looked up "public authority" in the Human Rights Act. Under the Act, a public authority is,

    "any person certain of whose functions are functions of a public nature",

but not if the nature of the Act is private. I find that a fairly confusing definition. I should be grateful for something which translated that into ordinary commonplace English so that we can understand the scope of the Bill in practice.

On Question, amendment agreed to.

Lord Bach moved Amendment No. 121:

    Page 32, line 18, leave out from ("authority") to second ("by") in line 19 and insert ("added to Schedule (Relevant public authorities) by an order made under subsection (4A)").

On Question, amendment agreed to.

Clause 29, as amended, agreed to.

Clause 30 [Authorisation of intrusive surveillance]:

[Amendment Nos. 121A to 123 not moved.]

Lord Bach moved Amendment No. 123A:

    Page 33, line 32, at end insert--

("( ) the chief constable of every police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967 (police forces for areas in Scotland);").

The noble Lord said: In moving this amendment I wish to speak also to Amendments Nos. 124A, 124B, 124C, 127A, 136A, 136B, 138A, 194A, 194B, 195, 195A, 203A, 211B and 230.

As the Committee knows, a separate Regulation of Investigatory Powers (Scotland) Bill has been introduced in the Scottish Parliament to cover the devolved activities of public authorities in Scotland. Although we hope the provisions in both Bills will be similar, so as not to impede joint cross-border operations, we also need to provide cover for devolved activity authorised in Scotland which crosses the Border and continues in another part of the UK, and for activity authorised in the rest of the UK which crosses the Border into Scotland. These government amendments, which we have discussed and which have been agreed with the Scottish Executive, provide that cover.

We already have provisions in Part II of the Bill which extend the Bill to Scotland in respect of reserved functions and public authorities with reserved

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functions. But we now extend all of Part II to Scotland, subject to the proviso that, in certain cases, an authorisation cannot be granted under the Bill where all the conduct is likely to take place in Scotland. That is covered by the Scottish equivalent of the Bill. These amendments ensure that conduct authorised by public authorities in England, Wales and Northern Ireland which cross the Border into Scotland will be lawful. They also extend the provisions of the Bill to provide lawful authority for a limited period of time for the activities of Scottish police forces and other public authorities with devolved functions in Scotland, where the conduct is authorised under the Scottish Bill and the activity crosses the Border out of Scotland into other parts of the UK.

Members of the Committee may think that this removes the need for a separate Scottish Bill. However, that is not the case. The amendments provide that an authority should not be obtained under the Bill if the conduct is all likely to take place in Scotland.

Lawful authorisation for conduct obtained under the Scottish legislation will continue if circumstances arise which take the conduct outside Scotland. Such an authorisation will continue to have lawful authority on each occasion that such circumstances arise and will last for three weeks, beginning with the time when the circumstances arose.

An authorisation for directed surveillance obtained by a Scottish police force under the Scottish Bill will continue to give lawful authority, if circumstances arise which mean that officers from that force need to pursue their target across the Border into England. The lawful authority will continue for three weeks on every occasion when circumstances arise which necessitate crossing of the Border. I beg to move.

Lord Cope of Berkeley: I wish to raise a point with regard to the overlap between the Scottish and the Welsh legislation. I understand that the Scottish Parliament has changed the wording of the Scottish Act a little. For example, Clause 30(2) of the Bill says that the Secretary of State cannot grant an authorisation under the Scottish legislation for intrusive surveillance unless he is satisfied that the authorisation is necessary, not that he just believes that it is. There is a slightly higher test in Scotland. Presumably, therefore, under Amendment No. 123A, the Scots will need to fulfil a lower test in England than in Scotland.

Lord Lucas: In this context, perhaps I may ask out of interest whether the phrase,

    "in the interests of the economic well-being of the United Kingdom",

would come into force if someone was planning to move a large operation from Scotland to England, or is that ruled out by that phrase?

On Question, amendment agreed to.

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6 p.m.

Lord McNally moved Amendment No. 124:

    Page 33, line 46, at end insert--

("(7) No authorisation shall take effect until such time (if any) as--
(a) the grant of the authorisation has been approved by an ordinary Surveillance Commissioner; and
(b) written notice of the Commissioner's decision to approve the grant of the authorisation has been given to the person who granted the authorisation.").

The noble Lord said: The amendments in this grouping make a common point; that is, to establish whether the powers vested here are--to use a word favoured by the noble Lord, Lord Bassam--proportionate. The clause covers authorisations for intrusive surveillance. The aim behind the amendments is to ensure that such authorisations are proportionate and that they bring all surveillance under the oversight of the surveillance commissioner.

All noble Lords concerned with the Bill know that a great deal of briefing has been submitted. One piece sent from the Cyber-Rights and Cyber-Liberties Group (UK) caught my eye because it summed up very well the thinking that lies behind these amendments. The group sets out five hurdles that should be cleared before the powers are used.

First, that the action will provide a

    "clear net benefit for society. That is, the benefits are clear and are achievable by the measures proposed, without a detrimental impact on the rights of honest citizens ... and one that is widely accepted as tolerable in the light of the gains secured".


    "That the measures proposed discriminate effectively between criminals and honest, law-abiding citizens. Therefore, they should be balanced and should not, in an impetuous desire to counter crime, expose all honest Internet users to ... risks".


    "That of all the options available they are the best in the sense that they are the most effective in countering criminals".


    "They should be based on clearly defined policy objectives which citizens understand and which command widespread public support".


    "They should be enforceable, transparent and accountable".

Those principles could easily apply to other parts of the Bill, but I believe that they apply particularly well to Clause 30. In essence these amendments are an exercise in wing-clipping. It is intended that the Minister should respond wherever he feels that those wings should not be clipped. I beg to move.

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