If the noble Baroness would bear with me, I am going to get on to that point about the read-across to other things. I hope that I have made it clear that I totally empathise with and get the point that my noble friend is making and that the remedy should be established through the court process.
Amendments 99 to 101 address a further point raised by the Victims’ Commissioner; namely, that she and other like commissioners have a statutory right to be consulted on the code of practice. This will give victims and witnesses further confidence that their concerns and priorities are represented in this code of practice.
Amendment 105 will ensure that the Scottish Ministers and the Northern Ireland Department of Justice are consulted before regulations are made to add, remove or amend an authority with devolved competence under Schedule 3.
Government Amendments 108 and 109 add to the list of authorised persons in Schedule 3. Amendment 108 will ensure that authorised persons in the Insolvency Service can exercise the Clause 36 power for the purposes of the prevention, detection or investigation of crime in pursuit of their functions, which include tackling financial wrongdoing. This was initially a mystery to me, but the Insolvency Service is an executive agency of the Department for Business, Energy and Industrial Strategy, hence the language used in the amendment, but it is important to note that the reference to an officer of BEIS is qualified because any individual falling within that description may exercise the powers only for the prevention, detection or investigation of crime. Schedule 3 already enables the Independent Office for Police Conduct to exercise the Clause 36 powers. Amendment 109 adds the equivalent bodies in Scotland and Northern Ireland.
As I have said, we believe that the government amendments address many of the points raised in amendments tabled by the noble Lords, Lord Rosser and Lord Paddick, but I will now turn to some of the other amendments in this group. Amendment 79 seeks to provide free independent legal advice to device users before they agree to the extraction of information from their device. Government Amendment 93 will ensure that device users are fully informed of the reasons that the information has been sought and how the information will be used. We do not think that provisions in this chapter are the right place to address what is a broader issue about the provision of legal advice to victims and witnesses given the wider impacts across the criminal justice system as a whole.
As regards Amendment 89, the noble Lord, Lord Rosser, highlighted the alternative drafting in respect of the test for the exercise of the Clause 36 powers. As the Bill is drafted, the authorised person must be satisfied that the exercise of the power is necessary and proportionate to achieve the relevant purpose. Under Amendment 89, this necessity test would become one of “strictly necessary”. The matter was also raised by the Victims’ Commissioner in briefings to noble Lords.
We understand that the reason for the concern is the strict necessity requirement in the Data Protection Act 2018. The powers in Clauses 36 and 39 must be read alongside existing obligations under the 2018 Act or the UK GDPR. In every case where authorised persons are extracting sensitive personal information from a device under these powers for a law enforcement purpose, such as preventing, detecting, investigating or prosecuting crime, they must continue to meet the strict necessity threshold in the Data Protection Act. It is therefore not necessary to duplicate that existing legal requirement in the Bill; it is there.
9.45 pm
Amendment 92 seeks to replace Clause 37. That clause concerns the application of Clause 36 to children and adults without capacity. The clause already provides that where the user of a device is a child, their views
must be sought and taken into account when someone else is deciding on their behalf regarding the extraction of information from their device. Amendment 92 seeks to extend this principle to cases where the device user is an adult without capacity.
We do not think that it is appropriate to include equivalent provision for adults without capacity because it is the capacity of the individual user that is relevant, and this is determined from a case-specific assessment. Only if the result of that assessment deems the person not capable of making the decision themselves will someone else be asked to make the decision on their behalf. The code of practice gives further detailed guidance on how to exercise these powers for adults without capacity, and signposts authorised persons to their existing responsibilities under the Mental Capacity Act 2005 and the associated code of practice, or the equivalent provision in Scotland and Northern Ireland.
Amendment 90A of the noble Lord, Lord Paddick, seeks to provide that a person providing agreement on behalf of the device user cannot be employed by the police or otherwise excluded by the code of practice published under Section 40. That is already the effect of Clause 37(8)(f). As such, I submit that this amendment is unnecessary. I should stress that the provision in Clause 37(8)(f), which I note is omitted from Amendment 92, is a backstop and would come into play only if none of the persons listed in paragraphs (a) to (e) was available. However, in such circumstances it is important that another responsible person can give agreement to the extraction of information from a device, as it may contain vital information to safeguard the device user. The draft code of practice provides further detail on who this other responsible person should be—namely, that they should be over 18, must not be a suspect or person of interest to the inquiry or an authorised person, and that they should ideally have an existing care-giving relationship with the child.
Amendments 94 and 96 seek to provide that the exercise of these powers in connection with the investigation of a death or a person at risk must be authorised by an officer of at least the rank of inspector who is independent of the investigation. We do not think that such a requirement is necessary. The draft code of practice contains detailed guidance on how the use of these powers should be sanctioned, including the grade or rank of the sanctioning officer, and provides that they must be at least one substantive rank or grade above the person who is requesting the use of the powers. We think that this provides adequate oversight of the exercise of these powers.
Amendments 97 and 103 seek to give effect to recommendations made by the Delegated Powers and Regulatory Reform Committee. That committee proposed that the code of practice provided for in Clause 40 should be subject to the negative procedure and that provision for the extraction of confidential information should be made in the Bill rather than in regulations, as Clause 41 currently provides. We are studying carefully all the recommendations of the committee and I will therefore take away these amendments and consider them further. We will respond fully to the Delegated Powers and Regulatory Reform Committee’s report ahead of the next stage.
The noble Lord, Lord Beith, also has Amendment 104, which seeks to probe why it is necessary to make provision for confidential journalistic material. This is simply because a device may contain confidential material, such as journalistic material, and as such an authorised person must consider the possibility that this information is on the device before deciding whether to exercise the power and extract information.
It is clear that safeguards are needed to ensure that confidential material is not extracted inappropriately and that authorised persons consider the likelihood of a device containing this material, and any relevance to the inquiry, before any exercise of these powers. As I said, in the light of the Delegated Powers Committee’s report, we are considering whether to make suitable provision in the Bill rather than in regulations.