| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
The Earl of Northesk: Perhaps I should apologise to the Minister for not moving amendments. I had thought that he would be grateful. I am grateful for the comments that the Minister has made. I shall reflect upon them when I read them in Hansard. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Northesk moved Amendment No. 177B:
- Page 63, line 41, at end insert—
The noble Earl said: Bearing in mind the hour, I shall be brief. Communications service providers and individuals should have an appeals procedure against requests for the retention of data or directions issued under the Bill. That is our belief. That would provide the independent scrutiny of such requests that is an essential part of Article 8 of the ECHR and would make for better overall accountability. An appropriate body for such appeals would be the tribunal set up under RIPA. Among other things, that considers complaints from persons aggrieved by certain conduct under RIPA, including conduct in relation to obtaining or requiring the disclosure of communications data. Section 65 of RIPA confers on the tribunal jurisdiction to hear those complaints. Therefore, the amendment seeks to extend the jurisdiction of the tribunal to the hearing of appeals against data retention requests and directions made under this Bill. I beg to move.
Lord Rooker: I too shall be brief. The provisions on data retention in this Bill are not—I repeat not—investigatory powers. Therefore, we believe that they should remain outside the scope of the tribunal that deals with investigatory powers.
The code of practice and agreements are voluntary. There should be no need for a complaints mechanism for a voluntary regime. Before making directions, the Secretary of State is required, under the Bill, to consult with those to whom the directions will apply. Service providers are also free to apply for judicial review of the Secretary of State's decision to make directions. I kept a straight face and did not change my tone of voice while reading that. We are not opposed to judicial review; we are not opposed to scrutiny. In some areas we do not believe that it is necessary because we have a good mechanism in place anyway. I say that in case anyone is contemplating returning to Part 4 debates. Nevertheless, in this area service providers are annoyed about any decision directly from the Secretary of State. Judicial review would be open to them. With that on the record, I hope that the noble Lord will be satisfied and that he will withdraw his amendment.
The Earl of Northesk: I am grateful for the comments made by the Minister. I have one observation. I am bound to contemplate what the position would be vis-a-vis appeals in the event that the Secretary of State ever felt it necessary to impose a mandatory code of practice. I shall reflect on that overnight and I shall reflect on the comments made by the noble Lord when I read Hansard tomorrow. In the mean time, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 105 [Arrangements for payments]:
[Amendment No. 177C not moved.]
[Amendment No. 177D not moved.]
Clause 106 [Interpretation of Part 11]:
[Amendments Nos. 177E to 177H not moved.]
[Amendment No. 177HA not moved.]
Clause 107 [Bribery and corruption: foreign officers etc.]:
[Amendment No. 177J not moved.]
Baroness Whitaker moved Amendment No. 178:
The noble Baroness said: I declare an interest as a member of Transparency International UK's Advisory Council. Amendment No. 178 seeks to make clear beyond doubt who is covered by the words Xpublic body". The aim of this part of the Bill is to make it certain that bribing a foreign public official is a crime in compliance with the OECD Convention. It is a splendid advance in the fight against international terrorism as well as supporting international good governance.
But the reality of the most damaging kinds of large-scale bribery is that the bribed party may well not be a public official in the sense of the 1889 and the 1916 British law definitions which Clause 107(4) invoke. He or she may be a member of the legislature, an officer of a newly privatised utility, a judge or an officer of one of the international organisations based in the country concerned.
That is why the OECD Convention defines a Xforeign public official" in words very close to the amendment. I ask, therefore, how can my noble and learned friend the Attorney-General be confident that the text of the Bill as drafted complies with the OECD Convention? I beg to move.
Lord Roper: I must also declare an interest as a member of the British section of Transparency International. I rise briefly to support the amendment of the noble Baroness, Lady Whitaker. It is important that this matter is clarified, if not on the face on the Bill at least by a clear assurance by the Attorney-General on the point.
The public service in various parts of the world is not necessarily as well developed as it is in this country. Therefore, the risks described by the noble Baroness are very real ones. The Committee wants this matter to be made perfectly clear, if not on the face of the Bill, in terms of the assurance which I hope the Attorney-General will be able to give us.
Lord Goldsmith: I am grateful both to my noble friend Lady Whitaker and to the noble Lord, Lord Roper, for raising the issue. The definition which is provided by Clause 107(4) is wide. I draw attention to the words. It states that by amendment to the 1916 Act,
As amended, the 1889 Act—read with the 1916 Act that amends it—will have a wide reach. But even so, we will not be wholly reliant on it to meet the requirements of the OECD convention. We still have
It is right also to bear in mind that the 1906 Act also provides an offence applicable to any person who is an Xagent", which is defined as
To repeat what my noble friend Lord Rooker said at Second Reading, the Government remain convinced that the law of corruption is in need of wider reform. The existing offences are something of a patchwork. It is our intention to replace them by a single offence as part of a general reform of corruption law. That will be carried out as soon as parliamentary time permits.
In those circumstances, I hope that my noble friend will feel that that assurance is satisfactory to meet her concerns, and that she will not feel that she must press the amendment.
X( ) Section 65 of the Regulation of Investigatory Powers Act 2000 (c. 23) (the Tribunal) is amended as follows.
( ) In subsection (5), after paragraph (f) insert—
X(g) the making of any request for the retention or disclosure of communications data in pursuance of any code of practice issued or agreement entered into under section 102 of the Anti-terrorism, Crime and Security Act 2001 and the making of any direction pursuant to section 103 of that Act."
( ) In subsection (8), after paragraph (f) insert—
X(g) a code of practice or agreement made under section 102 of the Anti-terrorism Crime and Security Act 2001, or a direction made under section 103 of that Act.""
11 p.m.
Page 65, line 10, after XKingdom)" insert Xand in particular such authorities having legislative, administrative, or judicial functions, or exercising a public function for that country or territory (including public agencies or public enterprises) and public international organisations"
Xpublic body includes local and public authorities of all descriptions".
Added to those words would be,
Xincluding authorities existing in a country or territory outside the United Kingdom".
My view is that having made clear that the law covers authorities Xof all descriptions"—I emphasise those words—it is unnecessary, and possibly confusing, to add that it covers some types of authority Xin particular", as my noble friend's amendment proposes. Our courts are familiar with what is meant by Xpublic authority". It is a term which is not infrequently used in legislation. In other legislation, for example the Human Rights Act, we have avoided using any definition of Xpublic authority". There could be dangers in unnecessarily departing from those established precedents.
Xthe receiving or offering—
of—
Xany undue reward by or to any person whatsoever, in a public office, in order to influence his behaviour in office, and incline him to act contrary to the known rules of honesty and integrity."
That common law crime applies to persons who carry out functions which have nothing to do with the UK and carry out those activities outside the United Kingdom. That again is a wide formulation that is not tied to any particular form of authority. I hope that that gives additional assurance.
Xany person employed by or acting for another".
Again, that can arise in both the private and the public sector. That provides an additional safeguard to ensure that the Bill achieves the wide cover intended. For those reasons, the Government are satisfied that the Bill as drafted covers all the categories of public official that the OECD convention requires to be covered.
Next Section
Back to Table of Contents
Lords Hansard Home Page