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Lord Lucas: It may be of interest to look at some of the circumstances that surround this particular cause. Anyone who finds himself on the register as a result of the amendment must first have had a key required of him. The Minister assures us that that will arise only in exceptional circumstances and on only a very few occasions. Presumably, therefore, the individual will be one against whom there is a good deal of prima facie evidence of involvement in activities which the Government seek to prove against him. In those circumstances, surely it is possible to put such an individual on List 99, if nothing else.

The situation would be improved if the Government changed their opinion on the inclusion of Clauses 16 and 17. In those circumstances, if there is a good deal of prima facie evidence it is more than likely that it will be based on the interception of communications which at present cannot be produced in court. That must be the reason why the Government are so desperate to obtain additional evidence of wrongdoing.

As I understand it, on the sole occasion when a difficulty arose as a result of a paedophile encrypting data on a hard disk there was sufficient evidence in clear to obtain a conviction, so at least that individual ended up on the register. One hopes that in most cases, given the very narrow circumstances in which people end up with a conviction under this part of the Bill, there will be sufficient evidence available either to convict them or at least to put them on List 99. Perhaps in that way the problem will not arise. However, the inability to catch paedophiles because of their use of encryption is to be laid at the door of Clauses 16 and 17 of the Bill, not this part of it.

Baroness Thornton: I thank the noble Lord, Lord Lucas, for his support. I know that he and I share an interest in this matter. I also thank my noble friend for his remarks, from which I take some comfort. We are talking about serious crimes about which the children's charities are enormously concerned. As with other serious crimes, new technology is being used. We shall take up the offer to continue the discussions. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 50 [Tipping-off]:

[Amendment No. 169B not moved.]

28 Jun 2000 : Column 1019

Lord Phillips of Sudbury moved Amendment No. 170:

    Page 52, leave out lines 42 and 43 and insert--

("during the period within which the notice is in effect, to keep secret from any specified person, or class of persons, the giving of the notice, its contents and the things done in pursuance of it, and to inform any other person who is made aware of any of those things of the requirements of the said provision").

The noble Lord said: In moving the amendment, I speak also to Amendments Nos. 172 to 174. These amendments relate to the new offence of tipping-off. It is one of the few phrases in the Bill about which one can feel friendly. It is a new offence. It has no parallel in British law. The amendments are put forward in a probing spirit, in the hope that other Members of the Committee will lend their wisdom to this debate.

There is serious unease about whether the provision will create more problems than it solves. I argue that on the ground of the barbaric complexity of the arrangements governing tipping-off. I believe that it could prove more of a stumbling block and a source of angst to operators in the e-commerce world than any other provision in the Bill. I can imagine the managing director of any one of a thousand companies writing to his or her solicitors asking, "Would you kindly advise us on our risk vis-a-vis Clause 50?" As a practising solicitor, I assure the Committee that he or she would receive a 20 or 30 page letter--solicitors guard their backs carefully these days--raising spectres that the Minister would scarcely contemplate, let alone think were within the ambit of the clause. The provision is extraordinarily wide and loose. Amendment No. 170 seeks to contain the extent and reach of the clause by requiring the notice to specify the person or class of person to whom it relates. I shall be grateful if the Minister will tell me whether the amendment is superfluous. At the end of Clause 50(3) there appear the words,

    "to keep secret from a particular person".

Should one infer from that subsection that all Clause 46 notices must specify the person or persons in relation to whom the secret must be kept?

The consequences of passing information to others may be extremely difficult to contain and control. Within an organisation many people may have access to keys or protected information. They may be unaware of the consequences of passing on that information to others. It is vital that the knowledge of a Clause 46 notice can be passed from the person upon whom it is served to others within the same organisation.

I move the amendment in the hope that others will contribute to this extremely difficult issue. The Police Act 1964, as amended, provides that,

    "any person who obstructs a constable in the execution of his duty shall be guilty of an offence".

That extends to tipping-off offences. The case of Regina v. Green and Moore, which was heard in the High Court in October 1981, established that quite specifically. The noble Lord, Lord Thomas of Gresford, was acting for the prosecution in that case when they secured a conviction for tipping-off.

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It may help if I refer to a particular case mentioned in that judgment; the case of Regina v. Westlie, a Canadian case. A plain clothes officer was patrolling the streets of one of the less salubrious parts of Vancouver in order to see whether any of the citizens were begging or committing other offences. Mr Westlie frustrated his efforts by walking alongside him and explaining to all who were interested that he was an "under-cover pig" or an "under-cover fuzz". The police brought a prosecution under an equivalent of the old English provision of obstructing a constable in the course of his duty, and obtained a conviction.

My question is whether we need to go through the agony of this long and tortuous new clause. Why can we not rely on the old obstruction of justice provision, which appears to catch tipping-off cases in any event? I beg to move.

10.30 p.m.

Viscount Astor: I have to admit that I find Clause 50 rather mystifying. I, of course, am not a lawyer, unlike the noble Lord, Lord Phillips.

An important point was raised in relation to subsection (5)(b), where the idea is given that it might specify a person. Subsection (1)(b) requires,

    "every other person who becomes aware of it or of its contents, to keep secret the giving of the notice, its contents and the things done in pursuance of it".

The subsection seems to be extraordinarily wide in its ambit. Does it, for example, prevent someone who has been given a notice discussing it with his solicitor? I do not know. The noble Lord, Lord Phillips, is a solicitor and he may be able to tell us. Does it mean that anybody who has received a notice cannot write to his MP? From whom must he keep it secret?

Lord Phillips of Sudbury: As the noble Viscount asks that question direct, I will answer. There is a provision allowing disclosure to a professional legal adviser, but not to one's bookmaker or barber.

Viscount Astor: What about a Member of Parliament? If someone wanted to complain to his MP or, indeed, write to one of your Lordships, that seems to be disbarred by the Bill. I wonder whether the Minister could confirm how that works. It does appear that the clause goes beyond laws that are in existence and which relate to other others. The Minister will have to justify the powers in the Bill for your Lordships to be reassured by Clause 50.

Viscount Goschen: I, too, am mystified by the provision. The practicalities of the Bill would seem to be extraordinarily complex and perhaps when a notice is served a copy of Clause 50 could be sent along also and the person told to work out for himself who can or cannot be told. The practicalities are very real.

It would appear that the possibility of committing an offence by mistake would be serious. May one discuss it with one's secretary or one's board colleagues, or, if one is working for a subsidiary of an American company, is one not allowed to tell the

28 Jun 2000 : Column 1021

principal? I imagine there could be a duty upon a director to his board and shareholders that could be contravened by not making any statement. It seems almost inconceivable that this could not be dealt with in a much more straightforward and brief manner. The notice served could specify who could and who could not be told, rather than having to work it out from a very long section of the Bill.

Lord Bassam of Brighton: I had hoped to be brief, but perhaps it is worth spending a little time on the amendment. The major issue is that of secrecy and it might help if I explain the purpose of the offence.

The offence is not a new invention. Perhaps Members of the Committee opposite will be more familiar with it than I because it is based on precedents in Section 93D of the Criminal Justice Act 1988 and Section 53 of the Drug Trafficking Act 1994. We believe that the provision is needed to preserve the covert nature of an investigation and to deter deliberate and intentional behaviour designed to frustrate statutory procedures and assist others to evade detection. That is reflected in the construction of the clause.

It is important to remember that the secrecy requirement will not apply in all cases--a fact which must be understood, but has been overlooked by a number of critics. As with other parts of the Bill, some ludicrous scenarios have been painted about the perceived effect of the tipping off offence.

I shall attempt to clarify the issue. Clause 59(3) limits the occasions when such a provision may be imposed. There is simply no need for secrecy in all cases, which the Bill recognises. By definition, it need not apply when a person is asked for the key to his own data. But were another party has access to a relevant key, we believe it reasonable in certain circumstances to require him to keep quiet about being served with a notice in order to prevent a suspect, for example, discovering that he is the subject of an investigation. That is analogous to interception where, under Clause 18, a service provider is required to keep quiet--

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