House of Lords, Report Stage, Regulation of Investigatory Powers Bill, Wednesday 13 Jul 2000
Discussions related to Part III, INVESTIGATION OF ELECTRONIC DATA PROTECTED BY ENCRYPTION ETC
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The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.--(Lord Bassam of Brighton.)
On Question, Motion agreed to.
Clause 48 [Effect of notice imposing disclosure requirement]:
Lord Lucas moved Amendment No. 55:
Page 54, line 12, leave out ("and") and insert ("or").
The noble Lord said: My Lords, I am very much fortified by my success last night on a similar amendment similarly inspired by the notable Dr Charles Lindsey of Manchester University. I am trying yet again to convince the parliamentary draftsmen that they have their grammar wrong.
Clause 48(1) states,
"both the protected information and a means of obtaining access to the information and of putting it into an intelligible form".
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"Both" qualifies two subjects, not three. In any event, the two latter points,
"a means of obtaining access to the information and of putting it into an intelligible form"
are not both necessary for the purposes of this clause. You need one or the other. I hope that this redrafting will appeal to the Government as it did last night. I beg to move.
Lord Bassam of Brighton: My Lords, I am, as ever, grateful to the noble Lord, Lord Lucas, for his tremendous concern for the English language and linguistic correctness, if I may so describe it. However, I am extremely puzzled by the amendment. My brief states:
"Resist ... Purpose of amendment unclear. Imposes requirement to disclose plain text on persons who have no means of obtaining access to the information; or no means of putting it into intelligible form".
I almost expected to see a reference to intelligible life form.
Unfortunately, in attempting to correct the parliamentary draftsmen--as the noble Lord did so expertly yesterday--he has fallen into the trap of perhaps causing more problems than he has sought to solve. Subsection (1) of Clause 48 is the basic disclosure requirement. It requires persons to disclose a plain text version of the protected information. It also makes it clear that there is no legal obstacle to their using their own key to decrypt the information so that they are able to deliver the plain text. According to subsection (1), this requirement works only if three conditions are met. Effectively, by his amendment the noble Lord is asking whether we need all three conditions, and so it falls to me to explain them.
The first condition is that the person is in possession of the protected information--there is no argument between us on that. The second condition is that the person must have a means of obtaining access to that information. I think it is pretty obvious that the purpose is to make clear that a notice does not entitle the recipient to obtain access to the information. Noble Lords will recall that on Amendment No. 44 we explained precisely why we do not agree that there should be such a right. The third condition, in plain and simple terms, is that the person has the means of putting the information into intelligible form. I should be very surprised if the noble Lord intended that condition to be at all optional. A requirement to deliver plain text cannot properly work without all of these conditions being fully satisfied.
The noble Lord has rightly sought to correct an inadequacy in the drafting, but in so doing he has undermined the working principles behind the way in which we see the clause operating. Obviously I take the point about the drafting--perhaps we should look at that again--but I ask the noble Lord, having scored his instant hit yesterday after many years of trying, to withdraw his amendment.
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Lord Lucas: My Lords, I am not surprised. There are a couple of points that I still do not understand. If a person is in possession of the information, how can they be lacking a means of obtaining access to it in the way described by the noble Lord? Having listened to the noble Lord, would not it be sensible if the word "both" was left out?
I remain puzzled by the wording of the clause and the way it will work. But I shall not detain the House now; I shall study in Hansard what the noble Lord said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley moved Amendment No. 56:
Page 54, line 17, at end insert--
("( ) Where a person who has been given notice under section
47 believes that compliance with the notice will involve
breaching a legal duty of confidentiality to another person, he
may, within 24 hours of receipt of the notice, refer the notice
to the Interception of Communications Commissioner who shall rule
whether that person shall breach that other legal duty or whether
the notice shall be withdrawn as disproportionate, having regard
to the effects of the notice in either case.").
The noble Lord said: My Lords, this amendment has been brought forward because of the concerns of bankers and others in London that a conflict may arise in their obligations as a result of the Bill. The concern has been expressed to me by a number of organisations and companies that the provisions of the Bill may conflict with both their ordinary legitimate business arrangements so far as concerns commercial confidentiality and with the legal obligations they owe to their customers world-wide. After all, a key--which is what this clause is all about--that can be used to decrypt one message may also be capable of decrypting other messages which are nothing to do with the crime or possible terrorism--whatever it is that is being investigated--for which the key has been requested.
In these circumstances, they are extremely concerned, first, that they may face enormous legal challenges and, secondly, that their business will emigrate overseas. Any perception--and perception matters here quite as much as the reality--by customers and financial institutions that doing business in this country, in London or elsewhere, would be less secure because the confidentiality of encrypted messages was not protected as thoroughly as elsewhere could have a significant adverse impact on this country as a place to do business, particularly e-business, and on London's attractiveness as a financial centre.
Of course, to some degree it is a question of comparison of perceptions; that is one of the disadvantages of the Government's proud boast that they are in the lead in taking powers to tap the Internet in this way. That is why we have attempted in Amendment No. 56 to suggest what might happen when an organisation, a company or a person has been given a notice under Clause 47. If they believe that to comply with the notice will be to breach a legal duty of confidentiality to someone else, they should have
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somewhere to go--in the amendment we suggest the commissioner--to decide which of the legal obligations they should honour.
Where they are placed in the dilemma of whether to dishonour the legal obligations they have entered into with their customers or to disobey the legal notice with which they have been served, it seems to us that the commissioner--the judicial figure--would be the right person to decide which of those legal obligations should be carried out having regard to the importance of the case, the importance of the investigation, the importance of the key and so on, on the one hand, and the effects on the business of giving way and obeying the notice on the other.
We have suggested 24 hours as the time within which the recipients of the notice should be allowed to appeal. The danger will be immediately obvious to them, but while an appeal was running it would hold up the authorities--the police or whoever wanted the key--and they should not be allowed an infinite time for that. We think that 24 hours is a fairly minimal time but that is the suggestion in the amendment. We have not necessarily found a perfect solution but the amendment draws attention to a very real and potentially very damaging problem. I beg to move.
Viscount Goschen: My Lords, my noble friend's amendment is a welcome initiative to highlight one of the central concerns that industry has about the Bill. Of course, in the matter of encryption keys and the disclosure of those keys to public authorities, the potential effect goes far wider than those businesses which are actively involved in e-commerce; it goes to all businesses, particularly those of an international nature.
A provision whereby members of staff or the directors of a firm are put into a position of jeopardy and run the risk of breaching confidentiality undertakings with clients and other people with whom they have interaction is one of the central areas of difficulty over the Bill. My noble friend Lord Cope has suggested one solution--which I am sure would add a significant degree of comfort--but he has also indicated that he is not necessarily wedded to every detail of the amendment. So there is a good opportunity for the Government to come forward and say how they propose to address the situation.
I caution the Minister against saying "Don't worry. There is no difficulty. This is pure perception". The first point is that there are a number of people and bodies that would not agree with that point of view; the second point is that, even if the Government were very confident of their argument, there is still a significant problem of perception. The Minister cannot possibly be in a position to understand all the intricate contractual obligations that business might have made with customers in these circumstances. I suggest that it would be very difficult for the Minister to brush those aside.
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There is a real opportunity here for the Government to be constructive and give some additional comfort to industry. My noble friend has highlighted a significant point. I hope that the Government will take this opportunity.
Baroness Thornton: My Lords, I listened to the debates both yesterday and today. Several noble Lords made contributions on the basis of how industry perceives the problem. I am worried about that. Clearly, future investment depends on how people perceive the framework around this issue. Noble Lords opposite say that the way in which industry perceives the matter is a justification for not making the kind of effort proposed in the legislation. But perhaps industry's perceptions are wrong and the issue that noble Lords should tackle is industry's perceptions. There has been a huge amount of lobbying from the Internet industry. Perhaps noble Lords should ask questions of the Internet industry. Perhaps they should say, "You perceive that there are these problems, these threats and so on that discourage people from investing. But what do you think are the answers to these issues?".
For example, yesterday, I visited the website of the organisation run by Mr Caspar Bowden. I looked at the organisations that are involved in his campaigning and the work that he has done on the Bill. I noticed that not a single childcare organisation or organisation involved with the education of the young and their relationship to the Internet is involved in his campaign. That is very worrying indeed. Does industry gain its perception from those who do not reflect the users about whom we are concerned--the children, the young and those who are vulnerable? I ask noble Lords to address the issue of the perception problem of which they have made so much in the past few days.
Lord Lucas: My Lords, with the amendment we come to what I see as the one remaining major difficulty with the Bill. How can a reputable international business be sure that its keys, or such keys as it keeps in this country, will be properly treated? When thinking where to place one's jewels in a safety deposit box, one might hesitate before choosing Harrods. All the systems, safeguards, contracts and guarantees can be in place, yet perhaps there remains an element of mistrust. That is what the Bill, as it stands, introduces into the thinking processes of international businesses. When an international business is faced with deciding where to place its centre of business, which is where the keys will be stored, generated and maintained, will it choose a country where those keys at all times remain in its possession and under its control, or will the keys be kept where a chief of police with a particularly pressing problem can unlock the whole security system?
The noble Baroness has drawn attention--
Baroness Thornton: My Lords, does it not rather depend on what one is doing?
Lord Lucas: Yes, indeed, my Lords. The noble Baroness has drawn attention to some very important
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problems. We cannot put structures in place which make it difficult or impossible for the police to deal with real crime and real criminals. But what we likewise must do is change the perception of business, in terms of an accurate perception of the risks which the Bill poses for the safety and the sanctity of its encryption structure, which is what it uses to protect its business and what it uses to guarantee its dealings with other people. We have to find a better way of dealing with that problem than is in the Bill at the moment.
The amendment addresses one possibility. For example, if Barclays Bank is faced with a raid on its keys, it can appeal to an interception commissioner. It can say, "This is entirely out of proportion. They ought to be satisfied with plain text". It gives a chance for a business to keep control of its keys. We shall come later to Amendments Nos. 62 and 63 and to other amendments which deal with other ways of achieving this purpose.
We do not want to see all the dangers and difficulties portrayed so graphically yesterday by the noble Lord, Lord Stevenson. We do not want to produce in the minds of international lawyers, who I suspect will be the people making these decisions, when they are questioning whether a business should put its headquarters in England, The Netherlands, Germany or Switzerland, the thought that they should cross out England because they cannot be sure of the safety of their key structure. We must avoid that kind of position. Otherwise, as the noble Lord, Lord Stevenson, said, we will loose by stealth, without anybody knowing it, our core international e-business. That will be followed, as surely as night follows day, by the administrative infrastructure of those businesses moving out of this country.
It may be that this is not the right way of achieving our purpose. It may be that this amendment offers too many opportunities for the criminal to impose a day's delay and to use it. But we must in the course of today at least find some way to make it absolutely clear that a reputable organisation running a large international business will never lose control of its keys, will always be in a position of being able to maintain its security, and that it is absolutely clear to the most cynical of foreign lawyers that that is the case.
The Earl of Northesk: My Lords, I rise to support the amendment. Perhaps I may say to the noble Baroness, Lady Thornton, that this matter is not only one of perception; to a certain extent it is all fact. To try to illustrate the point, I should like to quote from someone called George Hall, Director of Corporate Affairs at ICL. He had just announced a 10-year, £350 million contract to supply--the irony is lost on me--the Home Office's IT services and support. Yesterday he said:
"We trade in many countries and most are not going down this road because the governments there realise they need to encourage the growth of e-business. There is a strong industry view that this legislation casts doubt on the UK Government's commitment to e-business".
That is a factual response: QED, my Lords.
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Lord Bach: My Lords, I delayed rising to my feet because I thought we would probably hear something from the Liberal Democrat Benches on this important issue. Obviously, we shall not.
I am grateful to noble Lords for having had a proper, decent debate on this important amendment, which stands in the name of the noble Lord, Lord Cope of Berkeley. The amendment would mean that if a recipient of a Clause 47 notice believed that complying with it would breach a confidentiality agreement, he or she could refer the matter to the interception commissioner for a ruling on whether the notice should be withdrawn.
That is a difficult issue. We discussed it in Committee. Obviously we appreciate that the noble Lords, Lord Cope and Lord Lucas, expressed some continued reservations then about the position. We have received some representations from industry about the question of potential breach of confidentiality arrangements and we have sought to explain the position to them. We do not believe--indeed the noble Lord, Lord Cope, and other speakers have suggested that this may not be the exact or right solution--that the suggestion proposed in the amendment about referring any case to the interception commissioner where there is doubt about breaching a confidentiality agreement would be workable. The interception commissioner would not be the right person for such a referral in all cases. It does not seem to us right that the commissioner should be the one who has to decide whether confidentiality should outweigh the reasons for seeking access to the information. That is part of the proportionality exercise, and properly one for the person authorising the notice and the person giving it.
I should add two other points which may offer some comfort. First, we do not think that the commissioners should have a formal role here. But their oversight function will be crucially important, especially perhaps in the early years of these provisions, in ensuring that the proportionality tests are properly applied. Secondly, there is always access to the tribunal. The tribunal will hear cases under the Human Rights Act concerning these powers. It will also hear ordinary complaints. It will have power to grant interim remedies, following an amendment we made in another place to Clause 65(6).
As we said in Committee, we have looked at the possibility of reflecting the secure position of persons acting in obedience to disclosure notices served under the Bill. Our reassurance, again for the record, is that we believe a contractual term will be unenforceable if it puts someone in breach for meeting a statutory requirement and we expect the criminal law will be construed similarly. We have looked at other relevant legislation--for example, the Drug Trafficking Act 1994--to see whether there is a precedent for offering some protection on the face of the Bill. But the Drug Trafficking Act situation is different from that under this Bill. That Act deals with a person acting on a subjective suspicion. Under this Bill, the person obeying the Clause 47 notice is obeying a statutory requirement which unequivocally applies to their
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situation. In short, there is no doubt as to the lawfulness of what the person who obeys a notice is doing.
I have to be even more circumspect about litigation in another jurisdiction, on a contract governed by foreign law. I can, however, confirm what the Minister of State said in another place. He said that a person's duty of confidentiality to another, however it arises, will always be compromised to a greater or lesser extent by national rules requiring the disclosure of information. In this respect, Part III of the Bill does no more than the many disclosure requirements approved by Parliament over the years.
There are difficult issues here. The representations we have received on this point have largely come from industry. But we have continually said in discussing the Bill that, for legitimate businesses not themselves suspected of criminality, the disclosure of plain text rather than keys must be the expected norm. This information is no more than information to which a variety of authorities have lawful access now under a variety of statutory powers. That is the reality.
Perhaps I may make two other brief points. We shall come shortly to government Amendment No. 70, which specifically requires that a person asking for a key must consider how much more data may be revealed than is strictly required. That offers some reassurance on the issue. We shall come to that amendment later. Even later than that we shall come to Amendment No. 87, which stands in the names of the noble Viscount, Lord Goschen, and the noble Lord, Lord Cope. While I do not want to reveal everything at this stage about how the Government will respond to that amendment, it may be that the noble Viscount and the noble Lord will receive some good news. In the light of what I have had to say, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Cope of Berkeley: My Lords, I am grateful to the Minister for his response to the amendment. I hope that it will help to reassure those outside the House who are concerned about this matter. Perhaps I may make a brief point in response to the noble Baroness, Lady Thornton. She was concerned that in moving amendments we may sometimes overemphasise perception. But we have always emphasised, too, that such perceptions are based on the reality of the situation as it stands before us. That is why perceptions are difficult to change. One of the organisations that has said it is considering moving overseas as a result of the Bill is Poptel, the large Internet service provider. On its website it lists its clients as including the British Association for Study & Prevention of Child Abuse and Neglect. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bach: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
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Consideration of amendments on Report resumed on Clause 48.
Lord McNally moved Amendment No. 57:
Page 54, line 28, leave out paragraph (a).
The noble Lord said: My Lords, before that government commercial break, these Benches were chided by the noble Lord, Lord Bach, for not intervening on Amendment No. 56. I do not know whether the noble Lord's Chief Whip heard those remarks. I assure the noble Lord that if he is encouraging interventions on every amendment, we shall be here rather late tonight.
Lord Bach: My Lords, I encouraged an intervention on that amendment alone. There was reason for doing so; that reason has obviously not reached the noble Lord.
Lord McNally: My Lords, the general suspicion about government access to keys formed part of the earlier discussion and will unfold more strongly as the amendments are debated. That general unease is widely shared. I received an open letter with about 50 signatories. The key sentence states:
"The ability of Government to demand decryption keys creates a dangerous precedent.
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The noble Baroness, Lady Thornton, may find it interesting to note that among the signatures are those of representatives of the Royal College of General Practitioners, the Royal College of Nursing, the Brook Advisory Centres and others. I think that they are in her bailiwick in terms of the Bill, yet they still have concerns about the implications. I do not want this matter to be seen as an attempt at a division between a cold-hearted and indifferent industry lobbying vigorously on one side and the caring professions lining up behind the Government on the other. I beg to move.
Baroness Thornton: My Lords, I too have accessed these lists. There are no childcare organisations involved. I point out to the noble Lord, Lord Cope, that I discussed the matter with Poptel because its name is on the list. It is an organisation with which I have been familiar for many years. It was very keen to assure me that its clients are not involved in this matter. The question here is that children's interests are not represented by these organisations. That is the problem.
Lord Phillips of Sudbury: My Lords, Amendment No. 57 is grouped with Amendments Nos. 58 and 59. If it is convenient, I shall deal with the three together. The three amendments address broadly the same point as was addressed by Amendment No. 50 which was debated at some considerable length last night. Your Lordships will remember that I endeavoured to paint a scenario where Steve and Willie were engaged in exchanging information and where, wholly innocently, Willie could find himself on the wrong side of the law in circumstances also addressed by Clause 48(3) of the Bill.
I do not propose to repeat the explanation that I gave last night. As I have said, the issue is the same. The Minister gave me an assurance that he would make sure that there were no circumstances in which an innocent recipient of information could find himself or herself on the wrong side of this provision or that dealt with by Amendment No. 50. On the basis of that assurance and after consideration of the matter, I do not propose to say anymore on this occasion.
Lord Lucas: My Lords, the truth of it is that the Government's present position leaves Willie exposed. It appears that there is very little that the Government wish to do about it. It seems to me that there are difficulties in dealing with the problem piecemeal in trying to make it slightly more difficult for the Government or their agents to raid someone's keys and therefore expose correspondence and business to attack. The measures proposed in these amendments are sensible in themselves, but they go only part of the way. The more we hear about the Government's attitude and concerns, the clearer it becomes that we need to be more radical in our efforts to make sure that keys should be kept confidential where that is essential.
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Lord Bassam of Brighton: My Lords, the effect of Amendment No. 57 will be as follows. The fact that someone does not have the protected information in his possession would not be enough to convert the disclosure requirement into a requirement to disclose a key. The implication is that the person served with that notice should be able as of right to obtain access to the information in order to provide the plain text.
We have already debated Amendment No. 44 which raised the same point. I explained at that stage why the idea of access to protected information in all circumstances simply would not work.
Amendment No. 58 also touches on similar ground covered by Amendment No. 44. I believe the reasoning behind the amendment is that a person served with a Section 47 notice who has only part of the key, should be able to come to some arrangement with persons holding the other parts of the key to enable the plain text of information to be accessed.
The suggestion is that a person served with a notice should be permitted to seek the assistance of any persons holding the protected information. That is very similar to the point that we have already discussed. There may be cases where exactly the kind of arrangement mentioned by noble Lords would be appropriate and in that case that would happen by arrangement with the person giving the notice.
But we cannot turn that into a general right to seek assistance. The reason is that seeking assistance from the holder of the protected information may tip off the person under suspicion. I hope that the noble Lord will accept that reasoning and feel able to withdraw the amendment on that basis.
Amendment No. 59 would delete Clause 48(3)(c) which enables a Section 47 notice to contain a direction that a key is to be disclosed by virtue of Clause 49. It seems to me that that is a consequential change to Amendment No. 71 which proposes that Clause 49 should be deleted. We shall come to discuss the merits of that amendment later on.
I can see what lies behind Amendment No. 60. As I understand it, it seeks to ensure that a key may not be required to be disclosed where there is a less onerous means of obtaining the relevant information. I believe that part of what noble Lords are seeking here is already in the Bill. In that regard I mention three matters. First, none of the Part III powers can be used unless it is not reasonably practicable to obtain the protected information by some other means. That can be found quite clearly in Clause 47(2)(d). Secondly, a person served with a notice requiring disclosure of a key can use any key at his or her disposal which puts the relevant protected information into an intelligible form. The choice of key is entirely theirs. I believe that I made that point when we were discussing this matter in Committee.
Thirdly, the service of a notice requiring key rather than plain text is tightly controlled by Clause 49. We believe that that clause provides exactly the right balance. It recognises that demanding keys requires special circumstances. The difficulty with the
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amendment is that it would undermine the effects of Clause 49. It would unsettle the balance and that disturbs us most. I trust that with those fairly clear explanations the noble Lord will withdraw his amendment.
Lord McNally: My Lords, the Minister is right in that what we are seeking is a proper balance in these matters. I do not believe that at the moment the Government fully appreciate how serious and deep is the concern about access to keys. I believe that high-tech industries use simple words for very clever and scientific matters. I have always believed that the nuclear industry could have found a better word than "flask" for carrying its nuclear waste given the implications of fragility in the word "flask". In some ways a key gives an impression of something one has on a chain on a belt rather than a complicated code which gives access to an immense amount of information.
The suspicion remains among people who hold these codes that agencies will try to obtain the most advanced codes to gain access to most information. I appreciate that during the passage of the Bill the Government have offered various reassurances to meet that concern. In a later debate we may deal with whether they are trying to achieve the impossible.
I appreciated the Minister's explanation and I hope that he appreciates the concerns about not only his intentions but also the implications of the legislation for owners of keys. In the light of his explanation, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 58 to 62 not moved.]
Lord Lucas moved Amendment No. 63:
After Clause 48, insert the following new clause--
CASES IN WHICH PROOF OF CORRECT DISCLOSURE MAY BE REQUIRED (NO. 2)
(" .--(1) This section applies where--
(a) the person who for the purposes of Schedule 2 granted the
permission for the giving of the notice in relation to that
information, or
(b) any person whose permission for the giving of such a notice
in relation to that information would constitute the appropriate
permission under that Schedule,
considers it appropriate to give a direction in accordance with
subsection (2).
(2) If the person identified in subsection (1) believes that a
person to whom a section 47 notice is to be given has made, or
may attempt to make, a false disclosure, he may direct that the
notice may require that person to provide proof that the
disclosure made truly represents the protected information in
intelligible form.
(3) The requirements of subsection (2) may be satisfied by the
confirmation by a firm of solicitors, designated by the Law
Society, who have been provided with the claimed disclosure, the
keys and the protected information that the claimed disclosure is
the product of applying the keys in question to the protected
information.").
The noble Lord said: My Lords, to my surprise I find myself rising to move Amendment No. 63. I had thought that I should happily follow an expert from the Liberal Democrat Front Bench.
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Having listened carefully to what the Minister has said today, I have become more enamoured not of the wording of the amendment but of the concept behind it. It is that when a business is faced with a demand for a key--I presume that business will make the most use of the measure--rather than giving it to someone who may be hostile to its commercial interests, it should be able to hand it to a third party who is trusted by both the government agency and the business. That third party should then perform the decryption. In that way, the party which requested the decryption of the information is obtaining exactly what it wants but in a way which will not give the owner of the key access to the information--the Government understandably asked for that in reply to our earlier amendments--and the owner of the key can be sure that the key will not leave his control. It is no worse for him than the idea of giving his solicitor control of the key.
I do not have a recipe for arriving at the trusted third parties but it would not be difficult. The Government merely have to let it be known that they want various people to qualify as trusted third parties. I am sure that some of the major firms of solicitors, which are never short of ideas about how to earn fees and are electronically sophisticated in particular with regard to security, would step forward; perhaps other people would, too.
The amendment would address the problems of, say, a major American investment bank deciding where in Europe to place its core security operations. It would have the comfort of knowing that in all but the most exceptional circumstances its keys and security would remain under its control and the Government would be able to obtain exactly what they wanted. They could obtain the key to use on the information which was in their possession, or on information which was to come into their possession, without the results of the decryption being available to the keyholder.
The proposal would provide a neat answer to the problems faced by industry and it would give the Government everything for which they have asked to date. The amendment, if properly phrased and organised--I make no claims that it is that--would go a long way towards overcoming the problems we have discussed today. It would also leave the Government all the facilities they require and it would leave the noble Baroness, Lady Thornton, sure that nothing about the system of protection we had devised for major companies would obstruct the access to justice which the people she rightly brings to the fore will require. I beg to move.
Lord McNally: My Lords, the Deputy Speaker, the noble Baroness, Lady Gardner, flashed steely looks at me because of the tenuous hold I have on Report stage proceedings. As I would have withdrawn the probing amendments had I moved them, I slip in behind the noble Lord, Lord Lucas, to make the point that I would and should have made, which is that we are looking to provide industry with comfort and assurance. Ministers appear to work on the basis that everyone believes that government agencies will
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behave with absolute propriety and security. Yet, as has been pointed out on a number of occasions, the legislation is being examined not only by those of us who have grown up in the comfort of British society but by those on the outside looking at its cold print.
We are probing whether the kind of comfort and cordon sanitaire which exists between providing the agencies full access and access to the information they legitimately require cannot be provided by the kind of device proposed by the noble Lord, Lord Lucas.
Lord Cope of Berkeley: My Lords, it appears to be necessary to say once again that all noble Lords and those outside who have commented are of the opinion that the agencies of the police, Customs and so forth need to be able to access the Internet from time to time in a way which is similar to that in which they have been able to tap telephones and so forth. The key is the Internet equivalent of that.
We are not trying to prevent that, but we are trying to ensure that the mechanism is not such as to drive firms overseas. My noble friend, in his amendment, makes a valuable suggestion--he has done so in respect of this Bill and others--which is well worthy of consideration.
Viscount Goschen: My Lords, I hope that the Minister will give the amendment his fullest consideration. My noble friend has put forward an innovative idea of how we might overcome a problem which is vexing the industry and the representatives of agencies which are looking to have the fullest access, in appropriate situations, to encrypted material.
It is a genuine attempt to be helpful to the Government in producing a new mechanism and I hope that the Minister will be able to respond favourably. It is different from the original suggestion of a key escrow, for example. It is a much safer system whereby trusted third parties can act as intermediaries. There may be clear reasons why the Minister has difficulties with the amendment but, unless they are pressing, I urge him to welcome it.
Lord Bassam of Brighton: My Lords, I appreciate the sincerity with which the amendments have been tabled. They seek similar aims and build on pronouncements which the Government made about circumstances in which a key, as opposed to plain text, might be required. We have said on a number of occasions that one of the circumstances in which we may require a key is where profound concerns exist about the bona fides of the person served with a notice. As we have said continually, that is unlikely to be a consideration where the authorities are dealing with entirely legitimate organisations which have not provoked a profound security concern or been involved in criminality. In those cases, it will be the norm to ask for the plain text rather than a key. That is similar to what happens now when, for example, the police need to approach a bank for information.
Both amendments say that a burden may be placed on the recipient of a notice to prove that the plain text being disclosed is a faithful, intelligible version of the
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relevant protected information. I believe that there are difficulties with that. Amendment No. 62 made no reference to how the proof was to be obtained. Amendment No. 63 contains--it is attractive for this--an ingenious attempt by the noble Lord, Lord Lucas--and it is not the first time that he has been ingenious throughout our long debates on this subject--to close what he sees as a loophole. However, I am not sure that the whole approach which he offers is entirely workable. I shall go through the reasons for that.
The essential point is that the very circumstances in which the authorities might consider asking for a key to be disclosed are those which involve, for example, an individual or organisation suspected, as I said earlier, of involvement in some form of criminality. I am not sure that it would be possible or, more importantly, desirable in those circumstances to impose a direction for such persons to obtain proof either from a solicitor or from anyone else about the authenticity of the information they are being asked to disclose. If the high tests set out in Clause 49 for requiring that a key be disclosed are met--because, for example, someone is suspected of being a criminal--it does not seem to us to be appropriate or even sensible to trust that person to prove, by whatever means, the authenticity of the relevant plain text.
In addition, critical timing considerations may be involved in cases which involve a criminal investigation. We do not see how an additional proof stage could be built into the procedure without it damaging the effectiveness of the Part III power and having a profoundly detrimental effect on investigations. As in the case of other amendments, in putting these additions into the Bill I am sure that that was not the intention of the noble Lord, Lord Lucas, or of other noble Lords who are interested in this particular amendment and in the one which has not been moved. However, I am sure that they understand what the effect might be in putting this extra hurdle in the way because, effectively, that is what it amounts to.
This issue is bound up with the test for asking for keys set out in Clause 49. Although I understand the heartfelt plea on behalf of the industry, we do not believe that these changes are workable. On that basis, I ask the noble Lord to withdraw his amendment.
Lord Lucas: My Lords, when I realise that the noble Lord is about to reply to one of my amendments, I often close my eyes and open my ears to discover whether I can hear the little sigh that he utters when he is of the opinion that what I have suggested is utterly absurd. On this occasion there was no sigh and I am comforted by that. Indeed, I believe that the reply which the noble Lord gave to the amendment was immensely helpful because he outlined what the Government see as its problems. I believe that I can see a way through that and will follow up that line between now and Third Reading.
It seems to me that the Government need the flexibility that they have asked for and which the noble Lord has enlarged upon in his reply. There should be
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a way in which we can provide a mechanism whereby, on most occasions, if a key is required from a reputable company and there is no pressure of time, that key can be disclosed to a trusted third party rather than to law enforcement agencies.
As I said, that requires some thought and some drafting. So long as it is included as an option and not as something which the Government or their agencies are forced to do, then it should not be a burden to them when it is critical that they obtain possession of a key. However, it will be of considerable comfort to the companies and businesses concerned when the Government are able to go the extra step to provide reassurance that their security will not be breached more than is absolutely necessary.
As I said, I shall follow up this matter between now and Third Reading. I believe that it would fit particularly well with a later amendment in the name of my noble friend Lord Cope of Berkeley. Therefore, when we come to consider that, I shall return to the point in order to illustrate to the Minister how I believe they might work in together. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 49 [Cases in which key required]:
Lord Cope of Berkeley moved Amendment No. 64:
Page 55, line 43, leave out from beginning to ("that") in line 49 and insert ("the Secretary of State has issued a warrant directing").
The noble Lord said: My Lords, Amendment No. 64 is grouped with Amendments Nos. 66 to 68, 88 and 89. I believe that it is one of the most important amendments to be tabled. It returns to the question that we have discussed during debate on many of the amendments: the government agencies' access to keys for encrypted material. It is one of the most difficult aspects of this difficult Bill.
It is a matter of the greatest controversy, not only in the e-community, if I may call it that--the businesses which are Internet service providers, and so on--but also in the wider world of banking and commerce, and wider. The first and most obvious reason is perfectly simple and well known. The Internet is a very open system--an international system in the fullest sense. So far as concerns banks and companies, the keys protect information of the highest value--contracts, negotiations in progress, current transactions, and so on. So far as concerns individuals, the information is personal and, in many cases, of the most delicate character.
I believe that if one says to a bank, "We must be able to access the keys of your electronic information systems", that is very similar to saying, "We must have a spare set of the keys to all your safes and all your strong rooms so that we can enter them by ourselves at any time". That would not encourage people to leave their valuables in bank safe deposits or, for that matter, to deposit their money with those banks, particularly if they could just as easily deposit them in a safe deposit box elsewhere.
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Essentially, the Internet is a worldwide system and it is easy to use an overseas service rather than one in the United Kingdom. The Bill started off by almost completely overlooking that fact. People can move to a country where they have more confidence in the security of their valuable information more easily than they can move their valuable property from one safe deposit box to another. That is why companies and similar institutions talk increasingly about moving.
Earlier, Ministers were rather dismissive of the idea that companies were worried or would move operations overseas. However, I hope that our debates during previous stages of the Bill helped to convince the Government of the seriousness of that threat. For obvious reasons, some companies have been unwilling to talk about it, but increasing numbers have been willing to talk either directly or through their organisations.
The open letter that the noble Lord, Lord McNally, referred to a few minutes ago showed that concern is not confined to companies, but extends to all sorts of charities and campaigning organisations. Apart from the organisations that the noble Lord mentioned, I notice that some of the many other signatories of the letter included Amnesty International, Unison, the Manufacturing, Science and Finance Union and the Medical Foundation for the Care of Victims of Torture. The letter says:
"We urge the Government to withdraw the Bill".
That is going a lot further than us. The letter continues:
"The ability of the Government to demand decryption keys creates a dangerous precedent which will affect the rights of all computer users. Surveillance of website visits will undermine confidence in the Internet as a means of communication".
In response to the noble Baroness, Lady Thornton, I also mentioned the statement made the other day by the Internet service provider Poptel. I do not want to embarrass the Minister or Poptel, which is only one of a number of companies to have expressed concern, but among its customers are a number of large unions, including Unison, as well as the Labour party. Poptel's website says:
"The Labour party decided to connect up its offices ... and activists into a private network run by Poptel with access to the Internet. This became a key campaigning tool for the 1997 General Election. Tony Blair was one of the first MPs on-line and the e-mail address tony.blair@geo2.poptel.org.uk soon became one of the most famous in the country".
In a public statement the other day, the chairman of Poptel said:
"We are concerned that under the proposed regulatory regime we will not be able to guarantee the integrity of communications for our clients".
He also said that if the Bill was not withdrawn,
"We will have no alternative but to actively look at moving at least some of our services overseas".
There are plenty more quotes from other companies in a wide variety of fields, including banking and commerce. There is a danger that the Bill will make this country an e-commerce pariah, not the centre of e-commerce, as the Government wish. That would be bad not only for Internet service providers and other similar companies based in this country, but for every
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company, because, from the smallest to the largest, every company uses the Internet to some extent and some of them rely on it heavily.
We all agree that the police, Customs and Excise, and the intelligence services must be able to do their duty and catch criminals, including paedophiles, drug barons and terrorists. To do that, they need the Internet equivalent of telephone tapping. They are losing the ability to keep track of communications because of the growth of the Internet. That is the dilemma that we all face.
The Minister was kind enough yesterday to recognise the constructive spirit in which we have tried to approach the problems of the Bill. The amendment is another example of that constructive approach. We are pressing the principle on the Government, although I am not wedded to the drafting. Changes could still be made at Third Reading if necessary. However, the principle is important.
Those who signed the open letter, as well as many other companies and organisations, are pressing for the Bill to be withdrawn, whereas we are trying to produce a solution to the dilemma. The proposal in the amendment is that, as with the tapping of telephones, a warrant from the Secretary of State should be required for the police and other authorities to access a key.
Throughout our debates, the Government have tried in two ways to reassure us and all those who are concerned. First, they have said that they envisage keys being required only rarely, although that is not how the Bill was originally written. That reinforces the case for the Home Secretary to be the person to authorise access to keys. If there are not going to be many cases, it will not be a huge additional burden for him and his officials.
Secondly, because we have pushed so hard in earlier debates and because of outside pressure, the Government have tabled Amendment No. 66, which says that access to keys will be granted not on the say-so of a police superintendent or the equivalent in the other organisations, but on the say-so of the chief constable or his equivalent, such as a brigadier in the Army.
I assume that no superintendent would be likely to do such a rare and difficult thing as demand access to keys without knowing that he had the support of his chief constable. I do not suppose that many chief constables would let their superintendents go around demanding keys without laying down carefully when it should happen. Welcome though Amendment No. 66 is, it is not a great advance. I am not much reassured by it and I do not think that the companies concerned will be either.
The Home Secretary is asking for exceptional powers, so he should take responsibility for authorising their use. He is answerable to Parliament and to the nation in a way that no chief constable is answerable on operational matters. Like the tapping of telephones, it should be a ministerial responsibility. I beg to move.
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Lord McNally: My Lords, as the noble Lord, Lord Cope, has said, a number of arguments will reappear during this evening, particularly on Clause 49, which is a symbolic crunch clause. We want to test the Government's intention that the powers being sought are to be used only in exceptional circumstances by returning the responsibility for exercising them to the Secretary of State.
Almost from the beginning, the Government have tried to disarm their critics by denying that they would ever use the powers that the cold print gives them. By accepting the amendment, the Government would do much to reassure the public and industry that their intentions were limited and specific. We have repeated time and again that we do not want to obstruct the Government in the proper pursuit of wrongdoers of various kinds, but we have emphasised that in giving them those necessary powers, we do not want to allow government agencies to intrude into the private lives of ordinary citizens or to undermine at its inception the e-commerce industry, on whose potential the Prime Minister and other Ministers have put such emphasis.
It really is no use the Minister trying to belittle the range of criticisms which have been made of this Bill. They have been catholic, in the full sense of that word. I have never seen such a range of concern about a piece of legislation.
And it continues. In the past 24 hours, the Data Protection Commissioner has voiced concerns about this Bill's compatibility with the Human Rights Act. I understand that the Better Regulation Task Force has recently written to the Minister pointing out that the extra regulatory burden of the Bill is onerous indeed. The task force has expressed concern about its implications.
So Ministers must face up to the fact that the level of criticism of the Bill has been intense. The argument that the Bill should be taken away and looked at again carries weight. It really is a deeply-flawed Bill. The Government should be grateful to your Lordships' House for the good fist which has been made of trying to improve it.
I see that the noble Lord, Lord Bach, is becoming agitated, as he always does, by this stage in one of my speeches. It is rather like having a spaniel and a Rottweiler on the Government Benches. Half the time, we are being licked by the noble Lord, Lord Bassam, and the rest of the time, the noble Lord, Lord Bach, is snarling at us.
Lord Bach: And we do not know, my Lords, which is the Rottweiler and which is the spaniel! Perhaps noble Lords will make up their minds after I have made this point.
The noble Lord said that the Bill is flawed and should be taken away because of the criticisms received. If that is so, why did his party vote for its Third Reading in the House of Commons? The party of the noble Lord, Lord Cope, did not do that. It voted
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against the Bill. That seems to me to be rather more consistent with the attitude that it has taken during the course of these debates.
But the party of the noble Lord, Lord McNally, voted in favour of the Bill. Indeed, the speech of his honourable friend, Simon Hughes, praised the Bill, as did the speech of the noble Lord, Lord McNally, on Second Reading. Has the Liberal Democrat Party changed its mind about the Bill? Do his colleagues in the House of Commons know that?
Lord Cope of Berkeley: My Lords, perhaps I may intervene while the noble Lord, Lord McNally, is thinking about the answer to that question. On Third Reading in the House of Commons, my party did not vote against the Bill as a whole but voted for a reasoned amendment.
Lord McNally: My Lords, the noble Lord, Lord Bach, is obviously more used to the confrontational give-and-take of the court room than he is to the parliamentary process. In the House of Commons, yes, my honourable friend Simon Hughes supported the Bill on Third Reading as I did on Second Reading.
However, this has been an amazing process. First, there was a full-page spread in the Observer just before Second Reading. But then there has been a growing rumble of discontent from all sections of the community, the noble Baroness, Lady Thornton, excluded. In the Commons now they would be shouting, "Give her a job", but I would not do that.
We had speeches from noble Lords on the Cross-Benches last night, a number of which made the point that they had come late to the concerns about the Bill. I take tremendous pride in the way in which this House has dealt with the Bill. It has exposed flaws in the Bill. We still say that we want to see a Bill passed and we want to try to improve it as it goes through. We are not in the business of wrecking; we are in the business of improving.
But Ministers must face the fact that at the end of this process, we shall be the only G8 economy with this kind of legislation and the only economy in the world, other than India and Singapore, with this kind of legislation. Oh, I see another government loyalist rising to his feet.
Lord Desai: My Lords, hardly! I stand up to correct the noble Lord because he said we are the only country in the G8 to have this kind of legislation. I am told that Russia has had legislation like this. It is even alleged that we used it as a model, but I am not sure of that.
Lord McNally: My Lords, I never argue with an LSE professor on these matters. This legislation has a case to answer and it certainly has a case to answer in relation to access to keys. Much of the debate today is about raising the threshold for the agencies and raising the level of justification in respect of this matter. In
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moving the amendment, the noble Lord, Lord Cope, made a very strong case for the Government to accept the amendments.
Baroness Thornton: My Lords, I want to comment on the speech of the noble Lord, Lord McNally. On Second Reading and throughout our proceedings on the Bill, I have spoken from the point of view of my experience of working with children's organisations. I am concerned about the opportunities which this industry and the Internet provide in relation to children because I want those children to be safe. My knowledge of this subject is based on my experience over many years of working for NCH Action for Children, which is the leading children's organisation in this field.
I am extremely concerned about the methods which have been employed by the Foundation for Information Policy Research which has been taking a leading part in the activities and comments against the Bill. I have already mentioned one concern which is that it does not feature children's organisations or children's concerns at all among the list of people who support it.
Indeed, when it was founded, it said that it wanted to face the challenges of dealing with the debates on technology and its accessibility and to focus on social concerns. I do not believe that the organisation does that at all. It is funded and backed by Microsoft and the industry and they want this Bill to fall.
It is beholden on noble Lords who are using the lobbying material and literature of that organisation to understand where it and its supporters are coming from. They do not want the technology to be available to all or for it to be safe. They would like to have the regime which exists in America, which is protected by the First Amendment and which has no constraints at all.
I do not want the industry to grow in this country under that regime because, in America, children are kidnapped. In America, there is no restriction on the paedophile activity which can take place. In America, there is no restriction on the Nazi propaganda, bomb-making and all the other things that can take place on the Internet because the authorities in America are hamstrung by the regime under which they work. I do not want the Internet in the rest of the world to operate under that regime. This country must take a lead in ensuring that that is not the case.
This debate is not just about what happens in the UK, but it concerns us taking a lead on this issue. It is about us ensuring that the environment under which the Internet and its industries work in this country is the one that we want under our laws and under our regimes. That is why I am quite passionate about this subject, particularly as it concerns the future and our children.
Viscount Goschen: My Lords, it is worth emphasising that we are now at the Report stage of the Bill. The noble Baroness, Lady Thornton, has made
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some valid points about the overall discussion of the kind of regime that we should have. The amendment is not concerned with the sanction available. Indeed, from all sides of the House, noble Lords have said that this ultimate sanction should be available should the special circumstances specified by the Minister arise.
If those circumstances are as exceptional as the Minister says, the regime should require the highest level of authorisation: that of the Secretary of State. The noble Baroness made some impassioned remarks about a sensible foundation and one that we all support in preventing the terrible criminals who have utilised electronic means to further their ends. However, I doubt that she would object to an amendment that stated that the Secretary of State should authorise this unusual event. I am prepared to give way to the noble Baroness if she wants to contradict me on that.
There is no need to rehearse the arguments about the dangers to the economy, particularly the e-commerce economy, of this country, which were so ably put by my noble friend Lord Cope in introducing the amendment and by other noble Lords throughout all the stages of this Bill. The Government should understand that noble Lords are trying to assist them in making what was a bad and unacceptable Bill which would not have worked into one which, although there are still reservations in relation to it, could have a greater level of support and confidence from industry. That support will be absolutely vital in making the Bill work.
I can think of no better way of giving that comfort to industry than to acknowledge the seriousness of what the Government are asked for, the power to access encryption keys. Once given, there is no going back. For this high level of disclosure, the approval of the Secretary of State should be given. I can think of no valid reason, if it is as unusual as the noble Lord, Lord Bassam, has repeatedly assured the House, why that should not be the case.
Lord Lucas: My Lords, it is quite clear that this Government's Bach is worse than their Bassam! I do not believe that even the noble Lord, Lord Bach, could accuse me of having become harder on this Bill as time has gone by; indeed, I find myself becoming softer on the Bill as time goes by because the Government have done so much to improve it.
I support completely this amendment in the name of my noble friend Lord Cope of Berkeley. The analogy that he made between the effect of disclosure of a key and the effect of having one's telephone tapped is good. Indeed, the disclosure of a key is potentially much more damaging to a business than is having its telephone tapped. If the Secretary of State's authorisation is required for telephone tapping, the Secretary of State's authorisation should be required for key disclosure.
If the Government agree to this amendment, they could look again at the principle underlying my Amendment No. 63 and say that the Secretary of State is required to authorise key disclosure but, if the police
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are happy that the key should be disclosed to a trusted third party, that a lower level of authorisation would be required because the danger to the company would not be the same. That would make it possible in non-urgent cases, or cases where there was not another particular difficulty, for the whole process to take place without risk to the company and without involving the Secretary of State. That would leave the Secretary of State to deal with those crucial cases where it is necessary to break into a company's vaults and to lay open the whole of the company's security network. I believe that that would be the appropriate level of authorisation for those extreme cases.
Lord Phillips of Sudbury: My Lords, if the noble Baroness, Lady Thornton, believes that we are under the control of the foundation to which she referred, she gives little credit to the many noble Lords on this side of the House. That foundation is an extremely public-spirited one. The fact that it receives money from Microsoft does not align it with the devil. Without its assistance many of us on these and other Benches would have been a good deal more befuddled than we already are.
I have two other points to make. First, a leitmotiv has run through the Bill that the powers taken by the state should be proportionate to the dangers against which it legislates. Secondly, in looking at the overall impact of the Bill, one must have regard to the economic well-being of the country. It is ironic that both those issues are at the heart of the clause to which this amendment relates.
On this side of the House the case is that however well intentioned the arrangements are, as they stand, the Government would do better to listen more carefully to what is now a diverse chorus of concern from the business industry and, therefore, would be wise to accept the proposal that in order to issue one of these particularly vicious requirements for disclosure of keys, the authority of the Secretary of State must be obtained. Ultimately, one comes to a common sense, broad judgment. Simply piling extreme power on extreme power, as though that will best deal with the evils that we all want to prevent, is misconceived. Often the best law is that which has a degree of restraint in it and the worst law is that which purports to destroy or oppress evil with the absolutism that is apparent in some of the clauses of this Bill.
Lord Bassam of Brighton: My Lords, contrary to what may be presumed, I have rather enjoyed this debate. Politics have been brought into something that runs the danger of becoming a dry, technical subject. I am not sure whether I am a Rottweiler or a spaniel. Sometimes I am a Rottweiler and sometimes a spaniel--at least that is what my children tell me.
I was pleased when eventually a Member of your Lordships' House mentioned the issue that we are debating. We have had a lot of high-flown language about the Government and their attitude to industry; whether we have got it right or wrong; and whether we understand how intrusive and vicious the powers are. However, the debate is about the level of authorisation
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for access to encryption. That is a rather dry subject. I suppose the debate has become a metaphor for the approach and scepticism, not to say cynicism, of many noble Lords to the Government's real and underlying intentions in regard to this piece of legislation.
My noble friend Lord Bach was quite right to bring us back down to earth with a blast of reality. As he rightly said, the Liberal Democrats supported this Bill in another place. The noble Lord, Lord McNally, welcomed the Bill at Second Reading. Many other noble Lords indicated in our debates that they welcomed the Bill. They understand that in large measure it updates an out-dated piece of legislation and provides many more safeguards than existed in the Interception of Communications Act 1985. It strengthens the position of the public and guarantees liberties and freedoms which we are latterly being accused of attempting to undermine and destroy.
I want to focus on the subject in front of us: levels of authorisation for encryption. That is what we are talking about. In a sense the Government and the Opposition Front Bench are fishing in the same pool. We both realise that there has to be confidence in the level at which authorisation is sought.
It is our view that, on balance, we have got the level right in our amendments. I am puzzled as to why the noble Lord, Lord Cope of Berkeley, has such a poor view of the rank of chief constable, which is the level at which we suggest authorisation should be granted. To require a chief constable's personal authority is an impressive safeguard and I do not follow the argument that important operational decisions must be made by someone who is accountable to Parliament. The decisions to arrest a suspect, to bring charges or to deploy resources in a public order situation are not made by Ministers. They are quite rightly the operational decisions which finally rest at chief constable level. Yet the noble Lord, Lord Cope, suggests that somehow that level of authorisation is wrong and inappropriate for this piece of legislation.
We recognised and understood that superintendent was perhaps not the right level. For that reason we raised the threshold. That is a significant move on our part. Having listened to everything that has been said during the course of this debate, I continue to be perplexed at the cynicism or scepticism at the bona fides of our levels of authorisation process. We have worked hard throughout this Bill to try to get it right. We listened to the many representations. We continue to listen to them. We must focus on the practicalities of the situation.
As we all understand, particularly noble Lords opposite who have had ministerial experience, a Secretary of State is an important and busy person. Is it right that he should be confronted with this extra and more onerous task of applying these authorisations? That is an important question. Is it right that a Secretary of State should have his time potentially crowded by this extra level of consideration when, quite properly, a chief constable could undertake that work? Changing referral from superintendent to chief constable level indicates that
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we fully understood and took on board the seriousness of the representations made to us about levels of authorisation.
I accept that businesses have a real and legitimate concern--and we have sought to address it. But this does not apply only to businesses. We are also concerned about the individual in possession of an encrypted hard drive who refuses to hand over plain text. As many have argued in another context, there may well be cases when an individual considers it to be in his best interests not to hand over plain text or indeed to hand over plain text which is different from that which is truly covered by the encryption in question. In that regard I am thinking of paedophiles who may be hiding data on their hard drives or others with data they want to protect for similarly scurrilous purposes. It would be a significant burden for the police to cross, that they should have to go to their chief constable every time they wished to demand that someone suspected of such activity should hand over an encryption key. But that is what our amendment provides. We tried to balance the concerns of industry with the concerns of all Members of this House who wish to stamp out the kind of criminal activity that can now be perpetrated on computers.
It is for that reason that I believe that the sentiments in Amendments Nos. 64, 67 and 68, while I appreciate their origins, go too far. To remove all those decisions to the Secretary of State, particularly those cases where individuals in possession of data themselves are refusing to hand over keys, would be both unnecessary in terms of the need to protect privacy, and could act as a considerable impediment to normal law enforcement operations. I urge Members of your Lordships' House to bear that firmly in the forefront of their mind in considering these amendments.
We are concerned to assuage the worries of business. We shall continue to do that. I undertake to intensify our efforts in that regard. But we are also concerned to ensure that law enforcement has a credible deterrent in respect of some of the more vile crimes that can be perpetrated through computers. We feel that our amendments strike the right balance and that amendments tabled by noble Lords opposite go too far. They would seriously undermine the capability of law enforcement. In short, we are all concerned to protect business but we must not forget that this power is aimed at individuals who conceal their illegal activities through the use of encryption. Powers truly are needed in this regard and will be more so as easily accessible encryption spreads, as all Members of your Lordships' House who have contributed to this and other debates fully recognise.
Finally, I ask noble Lords to consider just how far we have increased the level of authorisation in the government amendments in this group. But I want to offer one further element of flexibility that the Government have and which I would be more than happy to bring back as an amendment at Third Reading. We are prepared, in so far as it will offer extra reassurance both to civil libertarians and the industry, to require chief constables or their equivalents to notify the Surveillance Commissioner of
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circumstances in which they have used their power to demand a key rather than make an ordinary disclosure requirement. That would place a duty on them to bring specifically to the commissioner's attention the fact that they had used the power. What he wished to do in terms of oversight would obviously be up to the commissioner. But that would be an extra and significant safeguard in that it would bring the matter specifically to the attention of the commissioner in his role of providing judicial oversight. If that were not the case, whether he took an interest in particular authorisations under his compass would be left to the discretion of the commissioner.
I believe that adds an extra significant safeguard, while recognising the fact that in a small number of years the police are likely to be faced with strong, unbreakable encryption on all home computers which can be used to conceal crimes of all varieties. It is for that reason that I believe that moving to Secretary of State authorisation is a step too far. However, I am prepared to move one further step at Third Reading and I hope that Members of your Lordships' House understand why I made that undertaking. We have to be practical. We have to be pragmatic in addressing these authorisation levels. These matters must be carefully borne in mind. We need something that works, that is effective and with which the police can work so that we can stamp out and crack down on some of the most unpleasant and heinous crimes. I urge your Lordships to reject Amendment No. 64.
Lord Cope of Berkeley: My Lords, during some parts of that short debate I began to think, as the Minister evidently did, that we had wandered back into Second Reading; or that we could look forward to Third Reading and Bill do now pass in discussing the general issues behind the Bill. I do not want to go back into that.
Amendment No. 64, as the Minister said, concerns levels of authorisation. Should the Secretary of State authorise the provision of keys or the insistence on keys as he does the tapping of telephones, or should chief constables do so under Amendment No. 66? It is not that I have a poor view of chief constables; on the contrary, I respect them highly. However, I also have a high view of the seriousness of requiring a key compulsorily by law from commercial and other organisations, or from individuals.
The suggestion made by the Minister at the end of his remarks about the involvement of the commissioner is an interesting one and well worthy of consideration. But, after all, everything that the noble Lord said in arguing against the proposition in my amendment would apply equally to telephone tapping. Indeed, everything he said about the convenience for the police, and so on, would apply equally to telephone tapping; yet no one, not the Government or anyone else, is suggesting that we should alter the Secretary of State's warrant in that respect.
In the course of our debates both the Government and noble Lords on this side of the House--indeed, the House as a whole--have, together, improved the Bill
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in quite a number of ways. I believe that the proposition in my amendment is yet another way in which we could further improve it. I urge noble Lords to support my amendment.
On Question, Whether the said amendment (No. 64) shall be agreed to?
Their Lordships divided: Contents, 119; Not-Contents, 120.
Division No. 1
CONTENTS
Ackner, L.
Addington, L.
Alderdice, L.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Biffen, L.
Blackwell, L.
Blaker, L.
Blatch, B.
Bowness, L.
Brabazon of Tara, L.
Bridgeman, V.
Brougham and Vaux, L.
Burnham, L. [Teller]
Carnegy of Lour, B.
Chadlington, L.
Clark of Kempston, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Courtown, E.
Craig of Radley, L.
Craigavon, V.
Crickhowell, L.
Croham, L.
Dahrendorf, L.
Dixon-Smith, L.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Ezra, L.
Falkland, V.
Feldman, L.
Ferrers, E.
Fookes, B.
Fraser of Carmyllie, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Geraint, L.
Glentoran, L.
Goodhart, L.
Goschen, V.
Greaves, L.
Greenway, L.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Harris of Greenwich, L.
Hayhoe, L.
Henley, L. [Teller]
Higgins, L.
Hooson, L.
Howell of Guildford, L.
Hylton, L.
Inglewood, L.
Jacobs, L.
Jenkin of Roding, L.
Jenkins of Hillhead, L.
Kingsland, L.
Lawson of Blaby, L.
Lester of Herne Hill, L.
Lucas, L.
Luke, L.
McNally, L.
Masham of Ilton, B.
Miller of Hendon, B.
Molyneaux of Killead, L.
Monson, L.
Montrose, D.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Naseby, L.
Newby, L.
Northbrook, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Oakeshott of Seagrove Bay, L.
Onslow, E.
Park of Monmouth, B.
Phillips of Sudbury, L.
Plummer of St. Marylebone, L.
Razzall, L.
Redesdale, L.
Rees, L.
Rees-Mogg, L.
Rennard, L.
Renton, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Roper, L.
Russell, E.
St. John of Bletso, L.
Saltoun of Abernethy, Ly.
Scott of Needham Market, B.
Seccombe, B.
Sharman, L.
Sharp of Guildford, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Stewartby, L.
Strathclyde, L.
Swinfen, L.
Taverne, L.
Thomas of Gwydir, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tordoff, L.
Tugendhat, L.
Waddington, L.
Wilcox, B.
Williams of Crosby, B.
Younger of Leckie, V.
NOT-CONTENTS
Acton, L.
Ahmed, L.
Alli, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Billingham, B.
Blackstone, B.
Blease, L.
Borrie, L.
Bragg, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Carter, L. [Teller]
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Crawley, B.
Currie of Marylebone, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Desai, L.
Diamond, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Farrington of Ribbleton, B.
Gale, B.
Gilbert, L.
Gladwin of Clee, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grabiner, L.
Graham of Edmonton, L.
Grenfell, L.
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Irvine of Lairg, L. (Lord Chancellor)
Janner of Braunstone, L.
Jay of Paddington, B. (Lord Privy Seal)
Judd, L.
King of West Bromwich, L.
Laird, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lovell-Davis, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Milner of Leeds, L.
Mitchell, L.
Molloy, L.
Morgan, L.
Morris of Castle Morris, L.
Morris of Manchester, L.
Nicol, B.
Parekh, L.
Paul, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Renwick of Clifton, L.
Richard, L.
Rogers of Riverside, L.
Sainsbury of Turville, L.
Sawyer, L.
Serota, B.
Sewel, L.
Simon, V.
Strabolgi, L.
Symons of Vernham Dean, B.
Thornton, B.
Tomlinson, L.
Turner of Camden, B.
Uddin, B.
Walker of Doncaster, L.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Winston, L.
Woolmer of Leeds, L.
Resolved in the negative, and amendment disagreed to accordingly.
13 Jul 2000 : Column 419
Lord Lucas moved Amendment No 65:
Page 55, line 50, leave out ("the key itself") and insert ("an actual key").
13 Jul 2000 : Column 420
The noble Lord said: My Lords, this amendment also addresses a grammatical oddity in the Bill as it is currently drafted. Clause 48(3) now requires the disclosure of any key of a "noticee's" choice; hence the words "the key itself" are no longer appropriate and should be replaced by the words in the amendment. I beg to move.
Viscount Astor: My Lords, I support my noble friend's amendment. The wording that he suggests appears to be sensible when one considers the detail of the Bill.
Lord Bassam of Brighton: My Lords, yesterday the noble Lord, Lord Lucas, achieved what I believe he said was a first ever drafting point over parliamentary counsel. I am afraid that on this occasion we do not feel able to accept the noble Lord's suggestion, precise though it may be.
I hope that the policy behind Clause 48(1) is clear. It is perhaps worth spelling it out. A section 47 notice may not specify that only the key to the relevant protected information, as opposed to the plaintext, is sufficient unless one of the persons listed in paragraphs (a) and (b) has given a direction that only the key itself will do. The question the amendment poses is whether the reference should be to "the key itself" or to "an actual key". We are happy to provide reassurance that subsections (5) and (6) apply in every situation to which it refers: a person may choose any key, or combination of keys, where that key, or combination of keys, is sufficient to access the information and render it intelligible. Therefore, the reference to "the key" has to be read with those provisions firmly in mind.
With the greatest respect to the noble Lord, we prefer the wording in the Bill to his suggested amendment. We think that the word "actual" is probably redundant. Abandoning "the key" would mean consequential amendments in Clause 48. There is nothing between us in substance. I appreciate the spirit in which the noble Lord tabled the amendment. However, I politely suggest that he withdraws it.
Lord Lucas: My Lords, we are back to normality! I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton moved Amendment No. 66:
Page 55, line 50, at end insert--
("(1A) A direction for the purposes of subsection (1) by the
police, the customs and excise or a member of Her Majesty's
forces shall not be given--
(a) in the case of a direction by the police, except by or with
the permission of a chief officer of police;
(b) in the case of a direction by the customs and excise, except
by or with the permission of the Commissioners of Customs and
Excise; or
(c) in the case of a direction by a member of Her Majesty's
forces, except by or with the permission of a person of or above
the rank of brigadier or its equivalent.
13 Jul 2000 : Column 421
(1B) A permission given for the purposes of subsection (1A) by a
chief officer of police, the Commissioners of Customs and Excise
or a person of or above any such rank as is mentioned in
paragraph (c) of that subsection must be given expressly in
relation to the direction in question.").
The noble Lord said: My Lords, this amendment has already been spoken to. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 67 and 68 not moved.]
Viscount Astor moved Amendment No. 69:
Page 56, line 2, at end insert ("on reasonable grounds").
The noble Viscount said: My Lords, government Amendment No. 70 may go a long way to satisfy my concerns on Amendment No. 69. It may be helpful if I do not make a speech now and allow the Minister to discuss Amendment No. 70 on the condition that I can return to the issue. I beg to move.
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
13 Jul 2000 : Column 422
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, I and my noble friend Lord Phillips 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
13 Jul 2000 : Column 423
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
13 Jul 2000 : Column 424
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.
Lord Cope of Berkeley moved Amendment No. 75:
Page 56, line 42, at end insert--
("or that to make a disclosure of the key would result in a professional legal adviser producing or giving access to items subject to legal privilege").
The noble Lord said: My Lords, we return here to the question of legal privilege. We discussed this issue yesterday in relation to a different part of the Bill. Amendment No. 75 and Amendment No. 93, which defines a lawyer--if that is not too grand a phrase to describe the effect of it--seek to preserve legal privilege in the way we discussed yesterday.
The suggestion made yesterday was that we do not need to worry because the common law will cover the issue. I have been asked why, if the common law would apply in the situations covered by these amendments under Clause 51--and, for that matter, under Clause 52--it has been necessary to legislate, for example, in the Terrorism Bill in an analogous way? The creation of statutory offences and the recognition of statutory defences require to be supplemented by legislative change in this respect and not left simply to what one might call the "magic potion" of common law coming to the rescue. I have come out of the closet--or was it back in?--to risk another legal opinion. I hasten to add that I am acting entirely on advice rather than on my own knowledge.
13 Jul 2000 : Column 425
As I said, this also applies to Clause 52. Amendments Nos. 82, 83 and 84 have a similar effect so far as concerns Clause 52 and, rather than repeat the words when we come to those amendments, if the answer is different and the Minister is happy to respond to those amendments, I should be content with that. I beg to move.
Lord Fraser of Carmyllie: My Lords, I regret that I was not present when this matter was raised yesterday. I have taken the opportunity of reading both the Minister's response and the contribution of the noble Lord, Lord Grabiner, for whose views I have the greatest respect.
I have a lot of sympathy for the position adopted that, if possible, these matters should be left to the common law on both sides of the Border because that allows for a flexibility in the interpretation from time to time as to what exactly is the legal privilege granted. There are difficult issues--for example, where people seek informal advice, or where they communicate after instructions have been declined--but the position seems to me to have become more complicated than was indicated last night.
My noble friend Lord Cope has pointed to the Terrorism Acts. I have stumbled across an Act which causes me some concern because it seems to be inconsistent with the line being followed last night--that is, the Data Protection Act 1984. In Section 31(2) of that Act, an exemption is granted,
"if the data consist of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings".
That seems to me to be a classic position of what I understand the common law to be.
I am somewhat at a loss. If the common law is as clear-cut as the Minister seemed to indicate, why has it proved necessary on previous occasions to set out that legal privilege expressly on the face of the statute? In the time available to me, I have not had the opportunity to go all the way through the Data Protection Act to determine whether the exemption granted and the circumstances in which that privilege is made express on the face of the Bill is wholly apt. But it would seem to me that there is a very clear parallel. If the Minister cannot give me an explanation for the provision in the Data Protection Act today, I hope that before we reach the next stage I will be provided with an answer or an indication that we will have some express provision on the face of the Bill. In these exceptionally complicated areas of the law it would be desirable to have express provisions on the face of the Bill.
Lord Bach: My Lords, we return to legal privilege. We understand the intention behind the amendment. It is a theme that reappears, and will reappear, in other amendments. But it is important to express again that in Part III of the Bill the disclosure powers do not undermine safeguards in existing legislation restricting access to legally privileged material. As we have said before, where, for example, such material is protected
13 Jul 2000 : Column 426
by provisions in the Police and Criminal Evidence Act, the powers in Part III cannot be used to circumvent those safeguards since the authorities will not be permitted access to protected material which is subject to legal privilege.
Where there are safeguards already in place in the underlying powers, they are not weakened by the Bill. This means that in circumstances where the relevant agency should not have access to legally protected material, the decryption power will not work to grant it such access. On the other hand, in circumstances where there is some access to legally protected material, albeit under strict controls, these powers should, we believe, be available to ensure that the existing power continues to be available to law enforcement in other agencies.
In so far as this amendment would remove the effectiveness of any existing powers which do provide some access to legally protected material, albeit in particular circumstances, we do not welcome them. As was said yesterday, we believe that adequate safeguards for legally protected material are essential. We expect to do that in the code of practice. As I indicated earlier, we will be happy to work up sections on legally protected material in accordance with any representations made to us. The House knows that the code of practice is in draft form only and is open to consultation. We have never said that the common law protects legally privileged material from disclosure requirements. As I have just argued, that protection will be in the code of practice.
The point about the common law is that it prevents legally privileged material from use in evidence. It is that distinction that I want to get home. As far as concerns the Data Protection Act, I shall take advantage of the very generous offer made by the noble and learned Lord, Lord Fraser of Carmyllie. We shall look at this and write to him with the position regarding the Data Protection Act.
Lord Fraser of Carmyllie: My Lords, before the noble Lord sits down, perhaps I may make this observation. I am not much comforted by his reference to PACE. Although some interviews in Scotland might be conducted observing the requirements of PACE, it is not a statute that has its effect north of the Border. The noble Lord must understand that in any response he gives to me my concern is not only about the position on this side of the Border, but, as the Bill extends also to Scotland, that the position is equally maintained north of the Border.
Lord Bach: My Lords, all I can say is that the author of that Bill, who actually spoke about it yesterday, has much to be proud of. As someone who practised at the Criminal Bar in England, I know that it absolutely revolutionised the way in which police evidence was given and accepted. As to its scope in Scotland, I have to bow down to the noble and learned Lord whose
13 Jul 2000 : Column 427
knowledge of events north of the Border is much greater than mine. I ask the noble Lord, Lord Cope, to withdraw his amendment.
Lord Cope of Berkeley: My Lords, I cannot say that I am happy about this matter. It is something about which I shall have to take further advice. Clearly, I am not sufficiently knowledgeable to argue about it off the cuff. However, I make two observations. First, patently the situation in Scotland needs to be considered. The Minister promised to do that. Secondly, I am a little sceptical of the reaction of lawyers to being told, "Do not worry. Your position will be protected by the code of practice". That will not be statutory or legal protection; it will only be the intention of the Government and their agencies. It will not be legally binding on them. I must consider this matter carefully with others before deciding what to do next. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 76 not moved.]
Clause 52 [Tipping-off]:
Lord McNally moved Amendment No. 77:
Page 57, leave out lines 6 to 9 and insert ("that any of the matters falling within subsection (1A) not be disclosed to any person such that--
(a) the safety or well-being of any person;
(b) the effectiveness of any investigation or operation; or
(c) the effectiveness of a specific investigatory technique,
would be affected by such a disclosure.
(1A) The matters that may be provided for under subsection (1)
are--
(a) the giving of the notice;
(b) the content of the notice; or
(c) the things done in pursuance of the notice.").
The noble Lord said: My Lords, we reach Clause 52, the famous "tipping-off" clause. I notice that the noble Lord, Lord Cope, the noble Viscount, Lord Astor, and the noble Earl, Lord Northesk, have tabled amendments to this clause as well. Perhaps I may make a general comment, on which I should be interested to receive a response from the Minister. The CyberLaw Research Unit of the University of Leeds--a new name for the noble Lord to put in his little black book--says of the tipping-off clause:
"The tipping-off offence in respect of key seizure is effectively useless for its presumed purpose of preventing those whose keys are seized from tipping-off their colleagues about the Government interest. It has been accepted by the Government that a person whose keys are seized is free to issue a new key immediately although they cannot say that they have done this because of key seizure. But if, on all other occasions in which they issue a new key, they simply say 'here is my new key--my old key is now insecure but not as a result of key seizure', their criminal colleagues can immediately see that the absence of an explanation identifies a law enforcement interest".
I wonder whether there is such a glaring loophole, because, as the Minister knows, of general concern is not the malicious tipping-off but the dilemmas in which it would put wholly innocent people. Amendments No. 77 to 80, standing in my name and
13 Jul 2000 : Column 428
that of my noble friend Lord Phillips, seek to tip the balance in tipping-off away from accidental incrimination by making it clear that such accidental incrimination will not fall foul of the law, and that the offence will require actual damage before prosecution. I beg to move.
Lord Bassam of Brighton: My Lords, I must say that I am not as intimately familiar with the findings or practices of the Leeds University CyberLaw Research Unit, nor do I share the absolute knowledge apparently shown by the noble Lord as regards issues such as key seizure, which for a moment I thought might be a form of ghastly malady.
The proposed amendments are the first of a number relating to the circumstances when a secrecy provision may be included in a Section 47 notice. Several general points need to be made on this issue, to which no doubt we shall come when we discuss Amendment No. 85 in the name of the noble Lord, Lord Lucas. At this point I shall confine myself to giving an explanation of why I believe that Amendments Nos. 77 to 80 are undesirable. Ultimately they are undesirable because we believe them to be unnecessary.
We would argue that the present construction of Clause 52 contains a clearly stated requirement in subsection (1) and a secrecy provision can be imposed only when the tests set out in subsection (3) of that clause are fulfilled. In our view, the proposed amendments in this grouping would jumble things around and, we believe, cause difficulties as a consequence. The recipient of a notice would be left needing to exercise some judgment as to whether any disclosure would "affect"--to use the phrase proposed here--any of the matters listed in subsection (1) of the proposed changed clause. We do not believe that this can be right. Furthermore, we are not sure that the word "affect" is either appropriate or right in those circumstances.
More important, Amendment No. 78 would have the effect of removing one of the important safeguards in Clause 52. I do not think that that is what the noble Lord wishes to achieve. Subsection (3) of Clause 52 is there for a purpose. It limits the occasions when a secrecy requirement may be imposed. It says that a secrecy requirement may be included in a Section 47 notice only where this relates to information which has come, or is likely to come, into the possession of the police, HM Customs or the intelligence services--and then only in restricted circumstances. This is an important restrictive safeguard which would be lost through the change proposed by Amendment No. 78. As I said, I do not believe that that is the intention of the noble Lord, but it most certainly would be the effect. It would open things up so that any public authority could consider asking for a secrecy provision to be included in a Section 47 notice. It would widen the possible use of the secrecy requirement. We do not believe that that is right. There is no operational necessity for it.
13 Jul 2000 : Column 429
I know that the Government have been criticised over the proposed tipping-off offence in Clause 52. We do not believe that those criticisms are justified. The clause is carefully worded and contains safeguards and restrictions. Indeed, I believe that some commentators have now begun to acknowledge that. However, we do believe that these amendments would damage the position. I am sure that that would not be the intention either of the Leeds University CyberLaw Research Unit or of the noble Lord, but that would be the effect. I trust, with that explanation, that the noble Lord will feel able to withdraw the amendment.
Lord McNally: My Lords, I am sure the Minister knows that, almost while he speaks, the CyberLaw Research Unit will be looking at every word. In the meantime, until I receive a response from the group, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 78 to 80 not moved.]
Lord Cope of Berkeley moved Amendment No. 81:
Page 57, line 43, at end insert--
("( ) In proceedings against any person for an offence under
this section in respect of any disclosure, it shall be a defence
for that person to show that the person to whom he made the
disclosure--
(a) was not named in the notice as someone who should not be
informed, and
(b) was a person employed by the same employer on duties
involving compliance with legal requirements or involving the
security of electronic communications or transactions.").
The noble Lord said: My Lords, this amendment also refers to the secrecy provisions. It makes a specific proposal that it should be in order for a person in this situation to share the requirements with which he must comply with someone whose duties involve compliance with legal requirements or the security of electronic communications or transactions. In a case of this kind, where it might involve a company of any size, experts are frequently on hand. Quite frankly, in many cases the directors of the company will not be able to achieve what is required by the notice unless they are able to use their own staff.
The amendment is restricted. Paragraph (b) does not greatly widen the protection but is intended to make it more practicable. We do not wish to see a situation where the directors of a company are unable to comply with the notice because they are not allowed to use the necessary skilled staff. I beg to move.
Lord Bassam of Brighton: My Lords, I appreciate some of the concerns which lie behind this amendment. I hope to explain why the protection sought is already present in the Bill. For that reason the amendment would be an entirely unnecessary addition. This covers ground similar to that we discussed yesterday when we considered Amendment No. 54A.
It is important to stress again that a secrecy provision will not be attached to all Section 47 notices. I believe that a misapprehension has crept in here. There is simply no need for this. The occasions when a
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notice may contain a secrecy requirement are constrained by Clause 52(3). A statutory defence against tipping-off is already contained in Clause 52(10) where someone other than the person served with the Section 47 notice neither knew nor had any reasonable grounds to suspect that a notice contained a secrecy provision.
Where a secrecy provision is included in a notice, it has never been the intention of the Government to penalise individuals other than the person served with the notice within an organisation, for example, who may need to be informed about the notice--either to enable the notice to be complied with, or to retrieve or produce the plain text of protected material, or to ensure that proper steps are taken afterwards to maintain the security of any systems. It is right that that should be the case.
The Bill allows such disclosures to be authorised either by the terms of the Section 47 notice itself or by the person serving it without such disclosures falling foul of the tipping-off offence. I am sure the noble Lord will be aware that the statutory defence is clearly set out in Clause 52(9). Notices will set out who may be authorised to know about them. They will not, as envisaged by the way in which the amendment is drafted, say who should not be informed. That is not the way in which the clause works.
The persons within an organisation who may properly be authorised to know about a notice are likely to vary from case to case. This is where the practical implementation of the legislation becomes important. I believe that we made clear in the initial draft code of practice that the person serving a Section 47 notice which contains a secrecy provision will need to take all reasonable steps, either before the notice is served or at the time it is served, to ascertain who may reasonably need to know about its existence. Proper disclosure may then be authorised. This is the basic position as set out in the code. As we explained yesterday, we shall be more than happy to receive comments from the industry about how this will work from case to case.
In summary, the protection sought by the noble Lord's amendment is already in place in the Bill. There is no intention to penalise legitimate practices within an organisation. We have already set out in the initial draft code of practice some idea of the way in which we see Clause 52 working and we welcome comments from the industry about the practicalities of those issues.
With that explanation, I trust that the noble Lord will feel able to withdraw his amendment.
Lord Cope of Berkeley: My Lords, as we have said on many previous occasions, we are concerned about the practical application. The Minister has recognised that that is entirely the purpose behind the amendment. However, he has given an assurance that it is unnecessary in that respect. In spite of the charges made by the noble Baroness, Lady Thornton, who entered our debates for a short while earlier, we are concerned with the practic