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Lord Bach moved Amendment No. 159:

Police forces etc.

1. Any police force.
2. The National Criminal Intelligence Service.
3. The National Crime Squad.
4. The Serious Fraud Office.
The intelligence services

5. Any of the intelligence services.
The armed forces

6. Any of Her Majesty's forces.
The revenue departments

7. The Commissioners of Customs and Excise.
8. The Commissioners of Inland Revenue.
Government departments

9. The Ministry of Agriculture, Fisheries and Food.
10. The Ministry of Defence.
11. The Department of the Environment, Transport and the Regions.
12. The Department of Health.
13. The Home Office.
14. The Department of Social Security.
15. The Department of Trade and Industry.
The National Assembly for Wales

16. The National Assembly for Wales.
Local authorities

17. Any local authority (within the meaning of section 1 of the Local Government Act 1999).
Other bodies

18. The Environment Agency.
19. The Financial Services Authority.
20. The Food Standards Agency.
21. The Intervention Board for Agricultural Produce.
22. The Personal Investment Authority.
23. The Post Office.
The Health and Safety Executive

24. The Health and Safety Executive.
NHS bodies in England and Wales

25. A Health Authority established under section 8 of the National Health Service Act 1977.
26. A Special Health Authority established under section 11 of the National Health Service Act 1977.
27. A National Health Service trust established under section 5 of the National Health Service and Community Care Act 1990.
The Royal Pharmaceutical Society of Great Britain

28. The Royal Pharmaceutical Society of Great Britain.").

On Question, amendment agreed to.

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Schedule 1 [Persons having the appropriate permission]:

Lord Cope of Berkeley had given notice of his intention to move Amendment No. 159A:

    Page 83, line 1, leave out paragraph 4.

The noble Lord said: The issues pertaining to Amendment No. 159A were discussed when dealing with the related amendments grouped with Amendment No. 139A. Therefore, I do not propose to move it.

[Amendment No. 159A not moved.]

[Amendment No. 159B not moved.]

Schedule 1 agreed to.

Clause 47 [Disclosure of information in place of key]:

Lord Bach moved Amendment No. 159C:

    Page 51, line 7, leave out from beginning to ("unless") in line 21 and insert--

("(1) A section 46 notice imposing a disclosure requirement in respect of any protected information shall not contain a statement for the purposes of section (Effect of notice imposing disclosure requirement)(3)(c)").

On Question, amendment agreed to.

[Amendments Nos. 160 and 161 not moved.]

Lord Bach moved Amendment No. 161A:

    Page 51, line 23, leave out ("a section 46") and insert ("the").

On Question, amendment agreed to.

[Amendments Nos. 162 to 164A not moved.]

Clause 47, as amended, agreed to.

Clause 48 [Arrangements for payments for key disclosure]:

[Amendment No. 164AA not moved.]

Clause 48 agreed to.

9.45 p.m.

Clause 49 [Failure to comply with a notice]:

Lord Bassam of Brighton moved Amendment No. 164AB:

    Page 52, line 2, leave out from ("person") to end of line 6 and insert ("to whom a section 46 notice has been given is guilty of an offence if he fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.").

The noble Lord said: I am happy to deal with this group of amendments if the Committee so desires. I understand entirely the motives behind the amendments in the group. We have been considering whether or not the offence at Clause 49 can be redrafted so as to retain its effectiveness while removing any potential for harm to justice. It will be noted that we tabled Amendments Nos. 164AB, 167B, 167C and 167D as a result of our deliberations.

These are difficult issues and it is a difficult offence to formulate. It involves many technicalities--the possession of a key--which it will be difficult for the prosecution to prove. However, I shall try to address the amendments as briefly as I can.

Amendments Nos. 164B and 164C seek to introduce the notion of intent into the offence. It is said that it should not be enough for the prosecution simply to

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prove that an individual did not comply with the notice, but also that there should have been some intent on their part. We resisted this in the past and shall continue to do so. A Section 46 notice will impose a legal burden. The offence is clear. It is simply a failure to comply with the notice. There is of course a defence for those who were not able to comply because it was not practical to do so.

I can be more helpful on Amendment No. 164C. This would say that a person is only guilty if he intentionally fails to comply; in other words, a person who fails to comply because he never received the notice or through sheer inadvertence is not guilty. We do not feel the strict liability which the offence imposes is onerous or unjust and do not believe the amendment is necessary. In the light of what I have said, I hope that Members of the Committee will agree that to raise the burden on the prosecution any higher would be unnecessary and would remove the efficacy of the deterrent. I hope noble Lords will consider not moving those amendments.

In Amendment No. 164D the noble Earl, Lord Northesk, seeks to add a stipulation that the offence will only work where someone failed to comply with a valid notice served under Section 46. We agree with the sentiment behind this amendment but believe it to be a clarification too far. There can be no question, under the Bill as currently drafted, that the offence will only work if the Section 46 notice is valid.

Turning to Amendment No. 165, there are difficulties with the notion of proving that a person,

    "has had possession of the key".

Let me spell out why the Government included this in Clause 49(1)(b). This limb to the offence is included not because we intend that people should be prosecuted where they have had possession of a key but have no longer got it when they are served with a notice; that is not now and never has been our intention. Rather, this part of the offence is there as explicit recognition of the extreme difficulty of prosecuting these offences.

The real issue created by the second limb of the offence is what burden is placed on the defendant where the prosecution has only been able to prove prior possession of the key. We have tabled an amendment making it clear that where the prosecution has been able to prove previous possession, that alone cannot lead to a conviction if the defendant raises some doubt as to whether or not he still has the key. I believe that that will deal with the issue addressed by Amendment No. 165.

Amendment No. 166 tries to add the possibility that the prosecution need only prove possession of a key or that someone was reasonably able to obtain such possession. I believe that that possibility is already provided for in Clause 52(2), to which we have tabled a slight amendment. Amendment No. 166 is therefore unnecessary and I ask the noble Lord not to move it.

Amendments Nos. 167 and 167A come from broadly the same motives. Amendment No. 167A includes the notion of intention, with which I dealt in my comments on Amendments Nos. 164B and 164C.

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The rest of the thrust of Amendments Nos. 167 and 167A deals with the time by which a person may have had possession of a key and the difficulties caused by including in Clause 49(1)(b) the notion that a person may be guilty of an offence where he,

    "has had possession of the key".

Those issues are addressed by government amendments.

We have tabled amendments that make it clear that proof of previous possession can lead to a conviction. However, it will not do so if the defendant raises an issue about whether he still has possession of the key. Once that happens, the burden falls back on the prosecution in the normal way. I believe that that will deal with the issue addressed by Amendments Nos. 167 and 167A. Accordingly, I hope that noble Lords will not press those amendments.

Lawyers refer to this as placing an "evidential" burden on the defendant, as opposed to a "persuasive" or "legal" burden. It means that the defendant simply has to raise some evidence to discharge the burden. That could be done, for example, by the defendant going into the witness box and saying that he has lost his key, or by producing some evidence that his system has crashed.

I believe that I understand the intent behind Amendment No. 168. In providing for a defence to the offence under Clause 49, the noble Lord, Lord Lucas, wishes to ensure that it will be sufficient for an individual to hand over any key that enables possession of the information to be obtained rather than a key that is specifically demanded. As I said earlier, it will not be possible under the Bill for the authorities to identify a specific key that they wish to be handed to them--rather, they must identify the protected information in question. That being the case, any key that unlocks the protected information will work for the purposes of the defence at Clause 49(3)(c). Again, we have tabled amendments to make that clearer.

Amendment No. 168A tabled by the noble Earl, Lord Northesk, is an attempt to make it plain on the face of the Bill that, where a key has been destroyed as part of routine practice designed to protect confidentiality, this should be a defence against any prosecution. Once more, that is already catered for in the Bill as drafted. All the circumstances set out in this amendment would undoubtedly meet the threshold required to be proved by a defence in a case where previous possession has been proved. Indeed, in as far as this amendment only provides for destruction of keys as part of "routine" practice, it may not go as far as the current situation outlined under the clause as drafted. As currently drafted--and even more so if government amendments are accepted--it should be enough just to explain that a key has been destroyed in a particular set of circumstances.

Amendment No. 168B seeks to lower the burden of proof on the defendant in this case to an evidential burden. I am sure that Members of the Committee will have noticed that a similar amendment has been tabled

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under my name. However, there is one significant difference. As drafted, Amendment No. 168B would seek to lower the burden of proof on the defendant in those cases where his defence is that compliance with the requirement was impractical. The Government's intention is only to apply this to the defence of showing lack of possession.

We do not see the need to lower the burden on the defendant as outlined in this amendment. This defence is for someone who, on the face of it, has committed the offence. The notice has been proved to have been served on him; he has been proved to be in possession of the key; he has not complied with the notice; but he is claiming that there are circumstances which made it impractical for him to comply. Necessarily, those circumstances are within his knowledge. Therefore, it must be for him to show them. In the light of this and the changes proposed by the Government, I ask noble Lords not to press the amendment.

The discussion that we are having on Amendments Nos. 168C and 169A was forecast at Second Reading and also in another place. Although I share to a considerable extent the concerns expressed and can see the attractions in moving in the direction proposed, I believe that there are constraints on us in this respect. In the final analysis, I do not believe that we can make such a move.

Amendment No. 168C is a very straightforward proposition--the maximum sentence for failure to comply with a Clause 46 notice should be 10 years, not two. This would be designed specifically to cater for the circumstance in which an individual sought to conceal his activities by not handing over a key in the full knowledge that, were his activities to be revealed, he would be facing a much longer sentence. How will the prosecuting authorities, or the judiciary, ever know the nature of protected information in a case where an individual has not complied with a Section 46 notice?

I share some of the frustrations of those who seek to move these amendments, but we need to focus on the offence in question. The offence is not complying with a notice under Section 46. By any view, a sentence of 10 years for such an offence must be disproportionate.

I turn to Amendment No. 169. I believe that in the fundamental interests of justice we must focus on the offence at Clause 49. That offence is failure to comply with a notice served under Section 46. By definition, if someone fails to comply with a Section 46 notice, the prosecution will not know the nature of the material that has been protected. They may have strong suspicions but they cannot know what the material is.

Even where the nature of other charges against an individual may lead one to have suspicions that the material has been protected, I still believe that the interests of justice dictate that the sentence for this offence must focus solely on what that offence is. I believe that a situation in which a person can be convicted of, say, an offence of unlawful possession on the assumption that unknown material is treated as incriminating risks offending against the presumption of innocence. I appreciate that Amendment No. 169 involves a different way of trying to achieve a similar

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objective to that in Amendments Nos. 168C and 169A. We need to focus on the offence. For that reason we believe that the appropriate sentence for this particular offence should not exceed a two year prison term and/or fine.

I have outlined our views in detail and I have tried to draw attention to the issues which I think are dealt with by the Government amendment in this group. In the light of that I ask noble Lords not to move their amendments. I beg to move.

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