§ (" .—(1) Subject to subsection (2) where—
- (a) an authorisation under the relevant Scottish legislation has the effect of authorising the carrying out in Scotland of the conduct described in the authorisation,
- (b) the conduct so described is or includes conduct to which Part II of this Act applies, and
- (c) circumstances arise by virtue of which some or all of the conduct so described can for the time being be carried out only outwith Scotland,
§ (2) Where any such circumstances as are mentioned in paragraph (c) of subsection (1) so arise as to give effect outwith Scotland to any authorisation granted under the relevant Scottish legislation, that authorisation shall not authorise any conduct outwith Scotland at any time after the end of the period of three weeks beginning with the time when the circumstances arose.
§ (3) Subsection (2) is without prejudice to the operation of subsection (1) in relation to any authorisation on the second or any subsequent occasion on which any such circumstances as are mentioned in subsection (1)(c) arise while the authorisation remains in force.
§ (4) In this section "the relevant Scottish legislation" means an enactment contained in or made under an Act of the Scottish Parliament which makes provision, corresponding to that made by Part II, for the authorisation of conduct to which that Part applies.").
§ On Question, amendment agreed to.
§ Clause 68 agreed to.
§ Clause 69 [Orders, regulations and rules]:
§
Lord Bach moved Amendments Nos. 203B to 207:
Page 75, line 20, leave out from ("instrument") to end of line 22 and insert ("which contains any order made in exercise of a power to which this section applies (other than the power to appoint a day under section 74(2)) but which contains neither").
Page 75, line 24, after ("12(7),") insert (" 21(9),").
Page 75, line 24, after ("12(7),") insert (" 27(5),").
Page 75, line 24, after ("12(7),") insert (" 28(5A),").
Page 75, line 24 after ("12(7),") insert (" 29(4B),").
§ On Question, amendments agreed to.
§
Lord Cope of Berkeley moved Amendment No. 208:
Page 75, line 24, after ("12(7),") insert ("24(5)").
§ The noble Lord said: Having been rejected all evening, nevertheless, I am encouraged to try Amendment No. 208. I beg to move.
§ On Question, amendment agreed to.
§
Lord Bach moved Amendments Nos. 208A to 208C:
Page 75, line 24, at end insert ("nor").
Page 75, line 25, leave out from ("applies") to end of line 26.
Page 75, line 28, at end insert—
("( ) A statutory instrument containing any regulations made in exercise of a power to which this section applies shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
§ On Question, amendments agreed to.
§ Clause 69, as amended, agreed to.
§ Clauses 70 and 71 agreed to.
§ Clause 72 [General interpretation]:
§
Lord Bach moved Amendment No. 209:
Page 76, line 29, at end insert—
(""Assistant Surveillance Commissioner" means any person holding office under section (Assistant Surveillance Commissioners);").
§ On Question, amendment agreed to.
§
Lord Lucas moved Amendment No. 210:
Page 76, leave out lines 33 to 39 and insert ("anything which serves to transmit information").
§
The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 211. I am always slightly disturbed by those rather jumbled and rambling definitions. For example, the definition of "communication" in paragraph (b) refers to "anything comprising speech" and so on and then paragraph (c) states:
signals serving … for the impartation of anything between persons".
§ If that is not speech, I do not know what it is, so why is "speech" in there if it is already covered in subparagraph (c)? I suppose there may be some cases of speeches in this Chamber that do not impart information, but thankfully they are rare and I am not sure that we need worry about them in this Bill.
§ I have attempted to produce something wider and simpler. When complicated definitions have to be construed in court, the question arises of whether they will start to compare some particular form of communication with the examples in the Bill, decide it does not fit and say that it is not communication, when for the sake of this Bill it ought to be. The same argument applies to the definition of "document", which seems to be quite limited. It includes a number of illustrations which may, in the event, limit the interpretation put on the word. When you look at how it is used in the Bill it ought to be quite broad. I beg to move.
§ Lord Bassam of BrightonDefinitions are always difficult. We have had many arguments about definitions during the course of this Bill. The noble Lord has said that he wants to make the definition wider and, therefore, simpler. I usually believe that when a definition is made wider it becomes more complex. The definition of "communication" is based upon wording taken from Section 4 of the Telecommunications Act 1984. We are trying to achieve consistency across legislation and that is the reasoning behind it.
Communication service providers are familiar with that legislation and we have no wish to confuse the way in which the word "communication" is read in the Bill by introducing a different wording. The courts would be obliged to take account of the different definitions and I believe that that would add to the complexity. In two Acts we would have to read the word differently when we mean the same. I do not believe that making the definition wider makes it simpler; I believe it makes it more complex for the courts.
The definition of "document" is taken from Section 14(1) of the Electronic Communications Act 2000. I am sure that the noble Lord is familiar with that. Again, it is used in this piece of legislation in a way that we believe achieves consistency. We are keen that the two pieces of legislation should be compatible. The word "document" occurs in the Bill only within the 1052 phrase "document or other information", or variations of that phrase. As a consequence, we believe that the amendment is unnecessary. I trust that the noble Lord will, in the interests of efficiency and consistency, feel able to withdraw his amendment.
§ Lord LucasIt is wonderful to know that there is some part of this great planet where the definition of "communication" has not changed since 1984. That fact had passed me by. For the sake of consistency and understanding, I at least should read the Act and ensure that I am happy with the dual context. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 211 not moved.]
§
Lord Bach moved Amendments Nos. 211A and 211 B:
Page 77, leave out lines 10 and 11.
Page 77, line 23, leave out ("(subject to section 45(7))").
§ On Question, amendments agreed to.
§ [Amendment No. 212 not moved.]
§
Lord Bassam of Brighton moved Amendment No. 212A:
Page 77, leave out lines 44 and 45.
§ On Question, amendment agreed to.
§ 12.15 a.m.
§
Lord Bassam of Brighton moved Amendment No. 213:
Page 78, line 2, at end insert ("or a member of the Senior Management Structure of Her Majesty's Diplomatic Service").
§ The noble Lord said: I shall speak also to Amendments Nos. 216 and 217. Amendments Nos. 213 and 217 are government amendments and Amendment No. 216, which we intend to resist, stands in the name of the noble Lord, Lord Cope.
§ Amendments Nos. 213 and 217 between them are necessary to take account of the slightly different terminology used in the Diplomatic Service to describe a person of equivalent seniority to a member of the senior Civil Service. The Foreign Secretary may sign interception warrants, and it is necessary that the Bill treat his officials in the same way as it treats those of any other Secretary of State.
§ Amendment No. 216 would remove from the Secretary of State the power to amend the definition of "senior official" contained in Clause 72(1). The sole purpose of that power is to cater for the eventuality that a change to the structure or grading of the Civil Service might render the Bill's definition of a "senior official" obsolete—obviously we cannot allow such a thing to happen. Were such a change to be made in a non-statutory way, there would be no means of updating the definition short of primary legislation, which we do not believe would be appropriate.
§ I should add that this subsection does not permit the definition of a senior official to be devalued, because it obliges the Secretary of State to ensure that his amendment preserves, so far as practicable, the effect 1053 of the existing definition. Hence it would be incumbent upon him to choose that level or designation which best mirrored the current seniority of members of the senior Civil Service. I beg to move.
§ Viscount AstorPerhaps I may speak briefly to Amendment No. 216.
The Minister has largely answered the points which were the reason we tabled this amendment. However, it would be interesting to know whether or not the Government have any plans to change the definition. Does it happen regularly within the Civil Service? Has it happened recently? Do they expect any changes to take place? It seemed to us that, while we accept that the provision contains a caveat that the Secretary of State has to keep, so far as practicable, the present definition, it is unlikely that the definitions of senior officials change that often.
§ Lord Bassam of BrightonI believe I dealt with that point. We do not have any immediate plans to change the entire structure of the Civil Service. We are trying to ensure that we have the balance right for the purposes of this Bill and ensure that it works for different departments in different ways. I cannot usefully add anything more.
On Question, amendment agreed to.
§ [Amendment No. 214 not moved.]
§
Lord Bassam of Brighton moved Amendment No. 215:
Page 78, line 47, at end insert—
("(4A) For the purposes of this Act detecting crime shall be taken to include—
- (a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and
- (b) the apprehension of the person by whom any crime was committed; and any reference in this Act to preventing or detecting serious crime shall he construed accordingly, except that, in Chapter I of Part I, it shall not include a reference to gathering evidence for use in any legal proceedings.").
§
The noble Lord said: Each of the six investigatory powers in this Bill can be used for specific purposes enshrined in the Bill. All include the purpose,
for the prevention and detection of crime".
In some cases that is further qualified by the stipulation that the purpose can only be used for serious crime. Precisely what is covered by the term "detection" of crime has never been defined in statute. Operationally, it has generally been taken to mean that powers can be used up to the point of charge. And this interpretation is currently the one adopted, for example, by the surveillance commissioners when giving prior approval to applications for intrusive surveillance made under the Police Act 1997.
§
However, in the case of Preston in 1994, the House of Lords considered whether there was a prohibition on the use of intercept material in evidence. That was Section 9 of the Interception of Communications Act.
1054
We had a stimulating debate on those provisions—now included in Clauses 16 and 17 of this Bill—last week. In the case of Preston the Judicial Committee reflected on the fact that interception has never been intended to play a part in the prosecution process. The noble and learned Lord, Lord Mustill, when delivering the leading judgment, rejected the view that the prevention and detection of serious crime went beyond,
the forestalling of future crimes and the discovery that crimes had been committed in the past, and by whom and in what manner".
He particularly rejected the view that the detection of crime extended to the,
amassing of evidence … with a view to the prosecution of offenders".
This was not a surprising assessment.
§
In the case of Morgans on 17th February of this year, the noble and learned Lord, Lord Mackay, summarised the case law. In respect of the Interception of Communications Act, he clearly stated that the effect of Preston was that,
the purposes of preventing or detecting serious crime did not include the purpose of gathering evidence of criminal proceedings in respect of such crime".
That case provides us with a difficulty in respect of this Bill. A narrow definition of "detection" is satisfactory in the case of interception, though we have tried to ensure even here that the law is as clear as possible. But the same formulation of "prevention and detection" exists in each of the five other powers of the Bill where we most certainly do want the phase to have a wider meaning and to include gathering evidence. Therefore, we believe that we must say what we intend the phrase to mean in each of the places where we use it. That is the purpose of these amendments.
§
We have deliberated long and hard over this matter. The result of our deliberations are now tabled before the Committee as Amendments Nos. 215, 222A, 224A and 226. Noble Lords will see from Amendment No. 215 that, across the generality of the Bill, we clarify that detection of crime includes,
establishing by whom, for what purpose, by what means and generally in what circumstances any crime is committed; and the apprehension of the person by whom any crime was committed".
I believe that this clarification should be welcomed. It means that it is possible to use the powers in Chapter II of Part I and in Parts II and III of the Bill for the purpose spelled out in Amendment No. 215.
§ I believe that I have dealt with the uncertain areas and the inconsistencies in the expression of "detecting crime" across a number of existing statutes. We have tabled amendments to clarify the meaning in respect of this Bill and related legislation. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 216 not moved.]
§
Lord Bach moved Amendment No. 217:
Page 79, line 12, leave out ("civil") insert ("home civil service or diplomatic").
§ On Question, amendment agreed to.
§ [Amendment No. 218 not moved.]
1055§ Clause 72, as amended, agreed to.
§ Clause 73 agreed to.
§ Schedule 3 [Consequential amendments]:
§
Lord Bassam of Brighton moved Amendment No. 219:
Page 87, line 7, leave out ("(within the meaning of the Regulation of Investigatory Powers Act 2000)").
§ The noble Lord said: The effect of this group of amendments would allow government bodies to continue to use their statutory powers to obtain communications data without committing an offence under the Telecommunications Act 1984—something with which, no doubt, all Members of the Committee will be familiar. Amendment No. 220 is the key amendment in the group, while the remaining amendments are consequential. I beg to move.
§ On Question, amendment agreed to.
§
Lord Bach moved Amendments Nos. 220, 220A, 221 and 222:
Page 87, line 11, after ("2000;") insert—
("( ) in compliance with any requirement imposed (apart from that Act) in consequence of the exercise by any person of any statutory power exercisable by him for the purpose of obtaining any document or other information;").
Page 87, line 12, leave out from second ("under") to end of line 13.
Page 87, line 15, leave out ("any Commissioner appointed under that Act of 2000") and insert ("the Interception of Communications Commissioner").
Page 87, line 16, at end insert—
("(3) In subsection (2) above 'criminal proceedings' and 'statutory power' have the same meanings as in the Regulation of Investigatory Powers Act 2000."").
§ On Question, amendments agreed to.
§
Lord Cope of Berkeley moved Amendment No. 222ZA:
Page 87, line 16, at end insert—
-
cc1055-6
- The Legal Aid (Scotland) Act 1986 (c. 47) 537 words cc1056-7
- Meaning of 'prevention' and 'detection'. 80 words cc1057-8
- The Financial Services and Markets Act 2000 (c. 8) 724 words