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Lord Bassam of Brighton: My Lords, I am grateful to the noble Viscount, Lord Astor, for not making a speech. I shall try not to make much of a speech.

Government Amendment No. 70 fulfils an undertaking we made in Committee to consider suggestions put forward by the noble Earls, Lord Liverpool and Lord Northesk, as to whether we could spell out in one particular instance what the question of proportionality would mean in relation to cases where keys are demanded rather than a disclosure requirement.

Amendment No. 70 highlights that, in particular, those demanding keys should have consideration to whether the key in question will grant access to more information than is directly sought. To the extent that more information could be accessed, the evil that is to be addressed by the handing over of the key will need to be proportionately greater. The amendment makes this consideration clear on the face of the Bill. It meets the suggestion from noble Lords opposite. I hope that it will be welcome. With that explanation, I trust that the noble Lord will feel able to withdraw his amendment.

Viscount Astor: My Lords, I thought that I was going to be grateful to the Minister but I do not think that he addressed the effect of Amendment No. 69 which seeks to add the words "on reasonable grounds" to the end of line two on page 56.

Lord Bassam of Brighton: My Lords, perhaps I was being too helpful in the sense that I was trying to be brief. Amendment No. 69 seeks to add to the conditions which must be met before the key can be demanded rather than plaintext. Not only are the conditions at Clause 49(2) to be met, but noble Lords opposite would seek to ensure that the person who authorises the demanding of a key should believe that the conditions are met "on reasonable grounds". I believe that this condition is already implicit in the test as it already exists. I believe that what the noble Viscount seeks is already present. That is the spirit in which our amendment has been tabled. All statutory powers must, of course, be exercised reasonably. That

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is a fundamental principle of public law. It does not need to be stated in this Bill, or any Bill. It is a principle which operates across the whole field of public law. I trust that with that extra reassurance the noble Lord will feel confident in withdrawing his amendment.

Viscount Astor: My Lords, I thank the Minister for those comments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 70:

    Page 56, line 9, at end insert--

("( ) The matters to be taken into account in considering whether the requirement of subsection (2)(b) is satisfied in the case of any direction shall include the extent and nature of any protected information, in addition to the protected information in respect of which the disclosure requirement is imposed, to which the key is also a key.").

On Question, amendment agreed to.

Lord McNally had given notice of his intention to move Amendment No. 71:

    Leave out Clause 49.

The noble Lord said: My Lords, my noble friend Lord Phillips and I had intended to have a full stand part debate at this point and to divide the House. However, as the Government clearly have overwhelming numbers to take part in Divisions, I shall not move the amendment.

[Amendment No. 71 not moved.]

Clause 51 [Failure to comply with a notice]:

Lord Bassam of Brighton moved Amendment No. 72:

    Page 56, line 20, after ("he") insert ("knowingly").

The noble Lord said: My Lords, in moving Amendment No. 72, I wish to speak also to Amendment No. 73. There is not much between us on this issue. However, we prefer the wording in our amendment to that in Amendment No. 73.

The noble Lord, Lord Cope, proposed an amendment in Committee to add an element of intent to the offence of non-compliance with a disclosure notice. This is now covered in Clause 51. The noble Lord, Lord Phillips, asked me to look again at the issue of intent. I undertook to give this more detailed thought and government Amendment No. 72 appears before your Lordships as a result.

The changes made to the non-compliance offence in Committee have been broadly welcomed. Amendment No. 72 will, I believe, offer some further comfort. The amendment means that Clause 51 would say that a person is only guilty of an offence if he knowingly fails to comply with a disclosure requirement imposed upon him. So some kind of inadvertent failure to comply would not be penalised. That was the point of the earlier debate and appears to be the issue behind the amendment of the noble Lord, Lord Cope.

We believe that "knowingly" is the right addition here rather than "wilfully". We have imported the concept from the offence of failing to comply with a

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duty to give effect to an interception warrant under Clause 11(7) of Part I of the Bill. So it is familiar territory. In Part III, a person can be convicted of an offence only if he has been given a disclosure notice and failed to comply with it. It is a simple offence. But we are happy to make clear that unwitting failure should not be--and will not be--penalised.

In short, there has been a general welcome for the new construction of the non-compliance offence, which we have arrived at following our consideration in Committee. I believe that the addition offers some further reassurance. In moving Amendment No. 72, I trust that the noble Viscount will feel able to withdraw Amendment No. 73. I beg to move.

Viscount Astor: My Lords, I am nearly tempted to debate with the Minister the semantics of "knowingly" and "wilfully". However, your Lordships will be relieved to hear that, as the Minister has made clear in his explanation of his amendment that unwitting failure--I think those were his words--will not be penalised, I am happy to accept the noble Lord's amendment and not to move mine.

On Question, amendment agreed to.

[Amendment No. 73 not moved.]

Lord McNally moved Amendment No. 74:

    Page 56, line 24, after ("any") insert ("recent").

The noble Lord said: My Lords, as we understand it, currently a person could be convicted of an offence under the Bill because he had forgotten, lost or destroyed a key which he had last used some five years previously. The amendment seeks to place a limit on how far back in time the prosecution may go in showing that he once had a key. I beg to move.

Lord Bassam of Brighton: My Lords, I certainly understand the intention behind the amendments; they seek to tie down yet further the circumstances under which someone who has been in prior possession of a key may yet be prosecuted for failing to comply with a disclosure requirement. As I recall, this was the subject of considerable amendment to the Bill at Committee stage. Noble Lords will note that we introduced merely an evidential burden in respect of people who are shown to have had prior knowledge and possession of a key. I was able to clarify for the noble Lord, Lord Phillips, in Committee that this evidential burden is less even than the standard of the balance of probabilities--another one of those wonderful legal terms. The defendant merely has to raise an issue, which then has to be disproved by the prosecution. In that case, the prosecution has to prove the contrary beyond a reasonable doubt.

These are significant hurdles for the prosecution to overcome. As I said at Committee stage, I thought the offence would be difficult to prove even as drafted at that time. Now that we have introduced the amendments that we have, the offence will be even more difficult to prove. I accept that the reasons for doing it are a good ones; that is why the Government

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have moved on this point. I do not accept that there is a need to go further at this stage and question whether the amendments tabled by noble Lords would provide further reassurance in any event.

Specifically, the amendment seeks to insert a qualification that the person must be shown to have been in recent possession of a key. What is intended by this qualification is spelt out in detail in Amendment No. 76. I do not think that the qualification helps overmuch. Particularly, the investigation or events which gave rise to the issue of a notice could well have been happening for some considerable time, or may well not have been happening for a long time; in either event, it would be difficult to show how long the investigations had been taking place. Further, it does not seem to be relevant to the prosecution of a particular offence as to how long an investigation has been going on. In other words, people who may be in possession of a key should not be penalised simply because they were in possession of a key which was relevant to a long, ongoing investigation. The length of the investigation is no concern of theirs, and their vulnerability to criminal prosecution should not depend upon it.

I sympathise with the intent behind the amendments but the Government have moved significantly on the question of this offence, particularly as it applies to prior possession of a key. I hope that, with that thought in mind, the noble Lord will reflect on the matter and withdraw the amendment.

Lord McNally: My Lords, I thank the Minister for that reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.45 p.m.

Lord Cope of Berkeley moved Amendment No. 75:

    Page 56, line 42, at end insert--

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