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Lord Phillips of Sudbury: I point out to the noble Lord, Lord Lucas that, under subsection (8), the protection given to a legal adviser under subsection (6) does not apply if the legal adviser lets the information out in the course of furthering a criminal purpose. Doing so to enable somebody to escape the net would be a criminal act.

Lord Lucas: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas moved Amendment No. 176ZA:

("( ) Nothing in this section shall prevent any person described in subsection (1)(a) or (b) taking such action as may be necessary to preserve the confidentiality of any communication (other than that concerning the protected information described in section 46(1)) unless such action is expressly forbidden in the section 46 notice.").

The noble Lord said: We touched briefly on this issue earlier but I seek further clarification. It seems to me that where confidentiality has been breached, under most circumstances a company should have the right to repair that breach. The Minister said he would touch on that matter again when we discussed tipping-off and I now give him that opportunity. I beg to move.

Lord Bassam of Brighton: The noble Lord has caught me out. It will take me some time to find the information that he requires. I shall have to write to the noble Lord. I apologise to the Committee.

Lord Lucas: I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 176A:

    Page 54, line 19, leave out from first ("the") to ("or") in line 20 and insert ("Intelligence Services Commissioner").

The noble Lord said: This is a long group of government amendments, the effect of which abolishes the posts of Intelligence Services Commissioner and Security Service Commissioner and replaces them with a single intelligence services commissioner. These amendments respond to the concern expressed in another place about the number of commissioners.

The post of Security Service Commissioner was introduced in the 1989 Security Service Act. The post of Intelligence Services Commissioner was introduced in the Intelligence Services Act 1994. The Security Service Commissioner has responsibility for the oversight of functions in connection with the Security Service and the Intelligence Services Commissioner carries out similar functions in relation to GCHQ and the Secret Intelligence Service. In practice, both roles have since been held by the same person, as most Members of the Committee will know. These amendments formalise that arrangement by having a single commissioner carrying out both functions, together with the additional functions required of him under the Bill.

The new commissioner will be responsible for reviewing: the Secretary of State's exercise of powers under Sections 5 to 7 of the Intelligence Services Act--warrants for interference with property or wireless telegraphy; the Secretary of State's exercise of powers in relation to the intelligence services and in relation to MoD/Armed Forces other than in Northern Ireland under Parts II and III of the RIP Bill; and the exercise and performance of functions by all three intelligence services and by MoD/Armed Forces, other than in Northern Ireland, under Parts II and III of the Bill.

Government Amendment No. 231 amends the title of the Bill to include the establishment of the new commissioner posts. I am sure that slim-lining the number of commissioners in this way will be welcomed by the Committee. I beg to move.

On Question, amendment agreed to.

Lord Bach moved Amendment No. 177:

    Page 54, line 20, at end insert ("or Assistant Surveillance Commissioner").

The noble Lord said: In moving this amendment, I shall speak also to the other amendments in the group. We are aware that concern has been raised about the proliferation of different commissioners with oversight of the various intrusive investigative techniques and we have responded by removing from the Bill the covert investigations commissioner and amalgamating that oversight function with that of the chief surveillance commissioner.

However, by doing so we have set the chief surveillance commissioner a wide-ranging and onerous task. He already has responsibility for oversight of all authorisations given under Part III of

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the Police Act 1997. This Bill gives him added responsibility for oversight of authorisations for covert surveillance and the use of covert sources, not only by law enforcement departments but by a large number of government departments, with offices spread across the length and breadth of the country.

In his current responsibilities relating to authorisations for interference with property, he is supported by five surveillance commissioners, who are serving or retired High Court judges. As a measure of the seriousness with which this function is taken, every authorisation given under Part III of the Police Act is scrutinised by a surveillance commissioner and, indeed, the prior approval of a surveillance commissioner is required for certain categories of authorisation. In practice, the Bill will add to these responsibilities the scrutiny and decision whether or not to give prior approval for every authorisation given for intrusive surveillance by the law enforcement agencies. That, together with their current work, will keep them fully employed.

Therefore, we must provide the chief surveillance commissioner with further assistance in order to ensure that he is able effectively to scrutinise other forms of covert surveillance and the use of covert sources by law enforcement and other public authorities. For the police alone, we expect that to involve in excess of 150,000 authorisations each year. He cannot do that alone and we anticipate that he will want to set up some form of inspectorate to assist him.

However, we also believe that it is important that the chief surveillance commissioner should be provided with some judicial support for this function. That could be done by increasing the present numbers of surveillance commissioners but there are simply not enough serving or retired high court judges out there. Instead, therefore, we propose to increase the pool of potential commissioners. These amendments will achieve that by allowing the Prime Minister, after consultation with the chief surveillance commissioner, to appoint serving or former circuit or Crown Court judges to assist in the monitoring process. By that means, we shall ensure independent judicial scrutiny of authorisations by all public authorities. I beg to move.

On Question, amendment agreed to.

Clause 50, as amended, agreed to.

Clause 51 [General duties of specified authorities]:

[Amendments Nos. 178 and 179 not moved.]

Clause 51 agreed to.

Lord Lucas moved Amendment No. 179A:

    After Clause 51, insert the following new clause--


(" . Any person disclosing a key in an unauthorised manner shall be liable for any damage so caused.").

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The noble Lord said: Amendment No. 179A gives me the opportunity to ask the Government who is liable if one of its officers, servants or agents discloses a key and thereby causes substantial damage to a major corporation. I beg to move.

Lord Bassam of Brighton: We recognise that this is an issue of fundamental concern to industry. The general welcome for the intentions of the Bill by industry has been qualified by that concern. Some areas of concern remain and they are reflected in the intention of the Government in amendments tabled for today or in amendments that we intend to table on Report. I note that the potential liability incurred through the disclosure of seized keys is one of the points on which industry seeks particular reassurance.

In the light of that we have actively looked into the possibility of including something on the face of the Bill to make it clear where liability lies. However, it should be borne in mind that where keys are demanded, they are most likely to be held by the technical assistance centre. A considerable amount of resource has been devoted to the establishment of that centre and a primary objective of the centre will be to look after keys securely. I am in no doubt that where the centre negligently fails in that regard, and where there is a duty of care, it will be liable for the disclosure of any keys. But I should add that I do not expect the centre to fail in that regard.

I should draw the Committee's attention to Clause 14 of the Bill and the safeguards that are to be applied to intercept material. The safeguards in Clauses 14 and 15 are built, to a large extent, on those that exist in Section 6 of the Interception of Communications Act 1985. Such high standards for protection and destruction of material have existed since then and I do not believe that any of our researches have shown any leakage. I would expect that impressive track record to continue in respect of any keys that are seized.

All that said, we have looked at the possibility of reflecting the secure position of persons acting in obedience to disclosure notices served under the Bill. The industry concern is the potential civil or criminal liability that they will face by making disclosures pursuant to a Section 46 notice. The Government reassurance, for the record, is that we believe a contractual term will be unenforceable if it puts someone in breach of meeting a statutory requirement. We expect the criminal law to be construed similarly.

The London Investment Banking Association helpfully pointed us to the Drug Trafficking Act 1994. Section 52 of that Act is the offence of failure to disclose knowledge or suspicion of money laundering. Section 52(4)states:

    "Where a person discloses to a constable ... his suspicion or belief that another person is engaged in drug money laundering, or any information or other matter on which that suspicion or belief is based, the disclosure shall not be treated as a breach of any restriction imposed by statute or otherwise".

Similar wording appears in regulation 16(4) of the Money Laundering Regulations 1993.

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We have looked at those pieces of legislation to see if they provide a precedent. But they do not. The cases are different. The person acting on a subjective suspicion in those two examples is not obeying a statutory requirement which unequivocally applies to his situation, whereas the person obeying a Section 46 notice is indeed obeying a statutory requirement which does unequivocally apply to his situation.

In short, there is no doubt as to the lawfulness of what the person who obeys a notice is doing. But the provisions of the Drug Trafficking Act are needed because that doubt exists. If we were to repeat such a formulation on the face of the Bill, there would be a real danger that the need to spell out the position on liability in this Bill would be inferred to apply across the statute book. Generally, that compliance with a statutory duty to disclose information does not, without express words that might be put into this Bill, provide a defence to criminal and civil liability. That could have serious implications elsewhere. We know of no precedent for such a provision and should not create one.

I appreciate that this is good and bad news. The good news is that we are clear as to the position of people served with disclosure notices. We are also confident that keys which are treated negligently will give rise to liability where a duty of care is found to exist. The bad news is that not only do we not see the need to place this on the face of the Bill, but we also see positive dangers in so doing in so far as it could impact on other parts of the statute book. The good news is the important news here, and I hope that Members of the Committee, and particularly concerned elements of industry outside, will hear what I have said. I trust therefore that the noble Lord will feel able to withdraw his amendment accordingly.

11 p.m.

Lord Cope of Berkeley: This is an important amendment. Clearly we shall have to study carefully what the Minister said because there were important elements in his response, among them that if the centre did disclose a key, then it would be liable if it disclosed it negligently. That is quite a high test in the courts, a much stronger test than that proposed in Amendment No. 179A.

The Minister also sought to reassure us about contractual liabilities in relation to companies which might find themselves in this position. He may be right--I have no reason to doubt that--in relation to United Kingdom law, but many of the liabilities about which bankers and others are worried arise from the law of other countries. That is where the liabilities will be and, in some cases, they could be extremely large. That is why there is nervousness about this provision. That is why we shall study carefully what the Minister said.

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