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Viscount Astor: Perhaps I may ask the Minister a question on that point. Does that mean that it must be kept secret from the person involved in that interception or must it be kept secret from everyone? The Minister was not clear about that.
Some of the concerns about the offence appear to come from business which is concerned, perhaps mistakenly, that the decryption notices would perhaps be served on junior employees in an organisation who would not be permitted, because of a secrecy provision, from telling anyone senior. That was behind some of the recent criticism of the Government in seeking to act as some kind of "shadow director".
I believe that those concerns should have been allayed by the amendments we proposed to Clause 46 concerning the serving of notices on directors. However, I recognise that there may be some lingering doubts about Clause 50.
The noble Lord, Lord Phillips, asked a fundamental question about this offence. He asked why it was necessary and why we could not rely on the general interfering-with-the-course-of-justice-type provision which has existed in the past. We decided that, on balance, we would be right to have the offence in the Bill, which is why Clause 53 sets down limits as to when a secrecy requirement might be imposed because of its seriousness. We carefully considered whether an offence such as interfering with the course of justice might be more appropriate. It has also been suggested that we could have relied on contempt of court to achieve what we want by way of deterrent. However, we do not believe that that would cover everything, particularly where the Secretary of State authorised interception warrants.
We therefore believe that the provision is essential. It is contained in existing statutes and for those strong reasons it is important that we pursue it. However, I understand the strength of feeling raised by Members of the Committee who have opposed it. However, we have gone through the questions raised by the noble Lord, Lord Phillips, and we do not believe that the offence is defined too broadly. The Bill restricts the situations in which a secrecy provision can be imposed. I believe that there may be difficulties with the approach suggested by the noble Lord, Lord Phillips. Therefore, with those comments and with the undertaking that I have given, I ask Members of the Committee who have moved amendments on this issue to withdraw them.
The Earl of Northesk: I gain the impression from what the Minister said that statutory precedents exist for the tipping-off offence as drafted on the face of the Bill. Perhaps it would assist the Committee if we were told what those precedents are.
Lord Bassam of Brighton: I did quote them and I am happy to quote them again. If the noble Earl wishes me to do so, I shall be happy to send him a copy of the particular clauses to which I have referred.
Lord Phillips of Sudbury: Before the Minister sits down, perhaps I may also ask a brief question. In my opening remarks, I asked what was the extent of the provision in Clause 50(3) in so far as it refers to the words,
The noble Lord said: First, I bring the Committee some good news: we are now half-way through the Marshalled List. I have no intention of calling a Division until about half-past one in the morning, just to make sure that the Chief Whip is doing his job.
Amendment No. 171 is simple. It seems to me that offences in the area of tipping-off cause industry a good deal of concern. I refer in particular to the scenario mentioned earlier of a relatively junior employee--say, the systems manager of the computer department--being the person on whom the notice is served. Particular concern may arise if a notice is served in conjunction with the opening up of keys to continuing data traffic so that the security of a significant firm is breached. I can imagine a situation where that might occur; for example, if we had another BCCI on our hands. It may be clear that the board of directors is corrupt but they may well be employing honest people lower down.
However, it seems to me that, in order to give comfort to industry in general, people must be sure that there are adequate safeguards on the occasions when the tipping-off offence is put into place, otherwise there will be a temptation to put it there in every case. That is simply my suggestion as to what one such safeguard might be. I beg to move.
Lord Bassam of Brighton: I understand the noble Lord's concern. However, this matter comes down to a question of practicalities. As the clause is drafted, we do not believe that Amendment No. 171 would add any extra safeguards. For that reason, we shall resist the amendment. I can understand the reasoning behind it and I have a degree of sympathy for it. However, I believe that, if the noble Lord reflects on the way in which we have recast our clauses under Part III, he will appreciate that this amendment is unnecessary and probably would be disproportionate in all the circumstances. For those reasons, I invite him to withdraw his amendment this evening.
Subsection (5) has been included because the industry requested it to ensure that specific software that has been designed to give an automatic warning that a key has been compromised will not fall foul of the tipping-off offence. There are sensible security reasons for that design option.
The subsection provides a statutory defence when disclosure occurs as a result of the action of the software and the person concerned was not reasonably able to stop that from happening after being served with a notice. There is clearly a need for the provision.
We have had no little discussion within the Government about the drafting of the clause. Its present construction reflects counsel's attempt to provide something accurate and workable. Your Lordships will note that the subsection is the same as Clause 13(3) of the draft Electronic Communications Bill, which was published for consultation last summer. We have used the term "software" advisedly. It is our understanding that the defence provided in the subsection is needed to cover a design feature of particular software that triggers the disclosure.
Lord Lucas: I entirely understand what the Minister says. However, the pattern is for what is written in software this year to migrate into hardware in a couple of years, so in a couple of years the subsection will not work if the Government leave it as it is. However, if that is how they wish it, I see no reason to argue further. I beg to ask leave to withdraw the amendment.
If I am served with a notice, presumably I toddle off to the company's legal adviser, who is then free to tell anyone else in the company. That seems to get round the intention of this part of the Bill. I beg to move.
Lord Bassam of Brighton: I am sure that the noble Lord does not really want to delete subsection (6) and that this is a probing amendment. That subsection serves a particular purpose. It seems to us right that a person served with a Section 46 notice that contains a secrecy requirement because of particular circumstances should nevertheless be permitted to approach a legal professional for advice about the effect of the notice without being penalised under the tipping-off offence. It would be unfair if they were not able to do that.