My Lords, we come now to the general duties in relation to privacy, which at least two noble Lords have referred to as the backbone of the Bill. I acknowledge, from these Benches, how much progress has been made with this issue and how welcome Clause 2 is. However, that does not deter us from being ambitious to pursue it to what we might see as perfection.
Amendment 5 would provide that any decision or action undertaken under the Act by a public authority should be subject to Clause 2. If it is not to apply, the Government should explain and justify that non-application to the Committee. I appreciate that this clause has a rather different genesis from most of the Bill. I hope it does not sound arrogant—it is certainly not meant to—if I say that it is an exceptionally well and helpfully drafted Bill. It has more definitions in it, more easily found, than any other Bill that I can recall. Most of it is extremely clear, but I have a problem with some of the content and drafting of this clause. This
may be because it has come together through a different route, because of the input from debate in the Commons and outside.
If amended by Amendment 5, Clause 2(1) would not be specific about where the duty applies. I think I ought to give an example, although this might not be a very good one because a telecoms operator is not a public authority. It occurred to me that although an operator would have a duty to comply with a notice, under Clause 62, they should not have to make the assessment in the way the clause requires. Even if that is a bad example, we could be told that Clause 2(3) would apply to that and that it is not relevant. I will come back to that, but one should say so. Clause 63, the next one on from the one that I picked as an example, is about the filter. I struggle to see whether that comes within Clause 2(1)(d). It should. My overall question is whether Clause 2 is as stiff a backbone as it can be.
Amendments 6 and 8 deal with a provision to which the noble Lord, Lord Janvrin, has referred, which is whether what is sought to be achieved could reasonably be done by “other less intrusive means”. My amendments would make that provision stand alone, not subject to the discretionary “have regard to” which introduces Clause 2(2). This is particularly important in connection to privileged communications, and indeed it came up in a meeting with the noble and learned Lord, Lord Keen, on Thursday, which, when we were assured in the context of legally privileged material that if a less intrusive means could be used it would be, was very helpful. This was what made me think about “have regard to”. My noble friend Lord Lester used the term “rubbery” of “have regard to”. In previous incarnations in this reference to “less intrusive means” there has been an absolute rather than a discretionary requirement, so I would be grateful for help on this, about which I feel particularly strongly.
Amendments 7, 10 and 11 are about the hierarchy, if one can say that there is a hierarchy within Clause 2, on which considerations are subject to what. Those taking decisions might welcome having some scope for consideration, but if the clause is circular—there have been times when I have thought that it is—it is our job to straighten it out. Clause 2(2) is subject to Clause 2(3). Clause 2(3)(a) says that the duties apply in so far as,
“they are relevant in the particular context”.
I cannot quite decide if those words are necessary. If a duty is not relevant, does one have to say so? Also, in particular, does “relevant” introduce an element of judgment, which would weaken the application of this?
Clause 2(3)(b) says that the duties “are subject to” particular considerations listed in Clause 2(4). Clause 2(4) takes precedence over Clause 2(2)—or does it? In addition Clause 2(4) suggests that there are considerations that are not listed. Given the importance of this clause I think that this should be addressed. To the extent that noble Lords have managed to follow that—I am not entirely sure that I did throughout—I hope that I have at least demonstrated that we think that there are potential problems in the construction of the clause.
Amendments 9 and 13 would make the Human Rights Act overarching. I might be told that because it falls within Clause 2(3)(b), to which Clause 2(2) is subject, it is not necessary to separate it out. If that is so, it reinforces the arguments that I have just made on the previous clutch of amendments. We might be told that not everything in the legislation is absolute and that certain rights are qualified, but my amendment would not affect that. I am really after clarity and certainty. The Human Rights Act is so important in this context that it should be expressed as applying in its own terms and not be demoted to being a particular consideration.
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Amendment 12 is on “economic well-being”, which has been qualified elsewhere in the Bill to provide that it applies,
“so far as the interests of economic well-being are relevant to the interests of national security”.
I wondered about the significance of there being no such qualification at this point, particularly as the reference to national security is at the top of the tree in Clause 2(4)(a), so it is obviously extremely important—I do not deny the importance of national security. In terms of the drafting of the clause, does it override—meaning reduce or nullify—qualifications elsewhere? I would be grateful for help on that.
Amendment 14 would provide for bringing into force regulations to establish the Privacy and Civil Liberties Board, which was a part of the Counter-Terrorism and Security Act. My noble friend Lord Strasburger will speak particularly to this.
My points on “less intrusive means” and the Human Rights Act are the most important of a number that I think very important. Other noble Lords will have had more direct experience than I have of hearing or reading words such as “Parliament clearly intended” or “Parliament must have intended”. I do not quite know what we intend on this clause. It has rightly been welcomed for acknowledging the need for safeguards right up front and spelled out clearly. It would be a real shame if we did not get it absolutely right. I beg to move.