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ELECTRONIC COMMUNICATIONS BILL
These notes refer to the draft Electronic Communications Bill as published for consultation on 23 July 1999
1. These explanatory notes relate to the draft Electronic Communications Bill which was published by the Government on 23 July 1999. They have been prepared by the Department of Trade and Industry and the Home Office in order to assist the reader of the draft Bill and to help inform debate on it.
2. The notes need to be read in conjunction with the draft Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
3. The Governments policy is to facilitate electronic commerce. It has also set itself targets for making Government services available electronically: 25% by 2002, 50% by 2005 and 100% by 2008. The Government has also set a target for 90% of its routine Government procurement of goods to be done electronically by 2001.
4. The Governments general policy towards electronic communications and information technology is set out in:
5. Cryptography and electronic signatures are important elements for electronic transactions.
6. Various organisations provide cryptography services, including certifying the public key of an individual used in the generation of electronic signatures. There is a need for the public to be able to have confidence that these services are secure and not open to fraud; and for people to be free from unnecessary restrictions in their use of new technology. On the other hand, there is the problem that encryption can be used for criminal purposes and to frustrate the work of law enforcement and security services.
7. The main purpose of the Bill is to help build confidence in electronic commerce and the technology underlying it by providing for:
8. The Bill also contains provisions to maintain the effectiveness of existing law enforcement powers in the face of increasing criminal use of encryption, and to update procedures for modifying telecommunications licences.
9. The Bill is in four parts.
10. The Bill contains two Schedules relating to Part III:
Parts I to III
11. The first consultation on most of the matters covered by Parts I to III was undertaken by the previous administration in March 1997.
12. The Government announced its response to that consultation, and its policy on the provision of cryptography services, in a parliamentary statement by Mrs Barbara Roche, then Parliamentary Under Secretary of State at the Department of Trade and Industry, on 27 April 1998 (Hansard, HoC, column 27; available on the Parliament website atwww.parliament.uk/).
13. A broader consultation - "Building Confidence in Electronic Commerce: A Consultation Document" (URN 99/642) (available on the DTI website atwww.dti.gov.uk/cii/elec/elec_com.html) - was launched on 5 March 1999. A summary of the responses to this consultation (URN 99/891) is available on the DTI website at www.dti.gov.uk/cii/elec/conrep.htm.
14. The Trade and Industry Select Committee of the House of Commons published a report on the matters covered by the consultation document on 18 May 1999 ("Building Confidence in Electronic Commerce: The Governments Proposals", HC 187; available on the Parliament website atwww.parliament.uk/ selcom/t&ihome.htm). This document also contains the Governments Response to the Select Committees report. This Response also sets out the Governments decisions on the issues covered by the Consultation Document.
15. There have been two formal consultations on the revised licence modification procedure provided for in Part IV of the Bill. The first, "Licence Modification Procedure: Proposed Changes to the Telecommunications Act 1984" (URN 98/1049), was issued in May 1998; the second, "Licence Modification Procedure: Updated Proposals for Changes to the Telecommunications Act 1984" (URN 99/945), in March 1999 (available on the DTI website at www.dti.gov.uk/telecom/teleprop.htm.)
16. Responses to all these consultation exercises have contributed to the measures set out in the Bill.
The international context
17. This Bill is consistent with the draft EU Electronic Signatures Directive, which is intended to harmonise the legal acceptance of certain electronic signatures throughout the European Union, and on which a common position was reached in Council in April 1999. It is also compatible with the Cryptography Guidelines, published by the Organisation for Economic Co-operation and Development (OECD) on 19 March 97 (available on the OECD website at:www.oecd.org/subject/e_commerce), and the United Nations Commission on International Trade Laws (UNCITRAL) Model Law on Electronic Commerce (available on the UN website at: www.un.or.at/uncitral/english/texts/electcom/ml-ec.htm).
18. The broad aim of the Bill, facilitating electronic commerce, is similar to that of the draft EU Directive on Certain Legal Aspects of Electronic Commerce in the Internal Market, which seeks to remove barriers to the development of electronic commerce in the internal market, but there is no overlap in the detailed provisions. The main areas addressed in the proposed directive are simplifying and clarifying rules of establishment, ensuring consistency in approaches to commercial communications such as definitions of advertising, ensuring legal validity of electronic contracts and clarifying the liability issues of intermediaries.
COMMENTARY ON CLAUSES
Clause 1: Register of approved providers
This clause places a duty on the Secretary of State to establish and maintain a register of approved providers of cryptography support services, and specifies what information is to be contained in the register. The clause also requires the Secretary of State to make arrangements for the public to have access to the register and for any changes to the information in the register to be publicised.
The main purpose of the register is to ensure that providers on the register have been independently assessed against particular standards of quality, in order to encourage the use of their services, and hence the development of electronic commerce and electronic communication with Government.
Where two people are communicating electronically, it may be necessary for one person to rely on the services provided to the other: for example, where the first person receives a communication which purports to have been signed electronically by the other.
The register is voluntary: no provider is obliged to apply for approval and a provider who is not on the register is at liberty to provide cryptography services.
Clause 2: Arrangements for the grant of approvals
This Clause places a duty on the Secretary of State to ensure that there are arrangements in force for granting approval, handling complaints and disputes and modifying or withdrawing approval.
Subsection (1) places a duty on the Secretary of State to ensure that there are arrangements for granting approvals for any person providing, or proposing to provide, cryptography support services in the United Kingdom, and applying to be approved.
Subsection (2) sets out what the arrangements for approvals are to achieve.
Subsection (4) allows for regulations made by virtue of subsection (3)(a) or (b) to frame the requirement for compliance with these requirements by reference to the opinion of a person specified, either in the regulations or chosen in a manner set out in the regulations.
Subsection (6) provides for the enforcement of any requirement to provide information imposed by the conditions of an approval, by the Secretary of State in civil proceedings.
Subsections (7) and (8) make provision about the payment of fees.
The arrangements for approvals, outlined above, envisage providers requesting approval for one, or a number, of different cryptography support services. The granting of such an approval would depend on the applicant meeting the conditions specified in the relevant regulations.
Clause 3: Delegation of approval functions
This Clause enables the Secretary of State to delegate the approvals functions set out in Clauses 1 and 2 to any person.
Clause 4: Restrictions on disclosure of information
This Clause protects certain information obtained under Part I, sets out the purposes for which it may be disclosed, and makes improper disclosure a criminal offence. In particular, it safeguards individual privacy and commercially confidential information, except where disclosure is desirable.
There is no restriction on who may make the disclosure or to whom it may be made, provided that the purpose is proper.
Clause 5: Regulations of Part I
This Clause makes further provision relating to the regulations the Secretary of State may make under Part I and contains standard provisions commonly accorded to powers to make subordinate legislation, such as an ability to make supplementary provision.
Clause 6: Provision of cryptography support services
This Clause provides for the interpretation of various terms used in Part I of the Bill.
Subsection (2) makes it clear that the approval scheme for cryptography support services includes only those services that primarily involve a continuing relationship between the supplier of the service and the customer. The scheme is not intended to cover the purchase of an item (whether software or hardware) unless such purchase is only intended to be incidental to the provision of the cryptography support service.
Subsection (3) sets out what is meant by cryptography support services being provided in the United Kingdom.
Cryptography support services, falling within the scope of this Clause, would include registration and certification in relation to certificates, time-stamping of certificates or documents, key generation and management, key-storage and providing directories of certificates.
Clause 7: Electronic signatures and related certificates
This Clause provides for the admissibility of electronic signatures and related certificates in legal proceedings.
It will be for the court to decide in a particular case whether an electronic signature has been correctly used and what weight it should be given (e.g. in relation to the authentication or integrity of a message) against other evidence. Some businesses have contracted with each other on paper about how they are to treat each other's electronic communications. Clauses 7 and 8 do not cast any doubt on such arrangements.
Subsection (1) allows an electronic signature, or a certificate, to be admissible as evidence in respect of any question regarding the authenticity or integrity of an electronic communication. Authenticity and integrity are both defined in Clause 23.
Subsection (2) defines an electronic signature for the purposes of the Clause.
Subsection (3) explains what is meant by certified in this context.
Clause 8: Power to modify legislation
This power is designed to remove restrictions in other legislation which prevent the use of electronic communication in place of paper, and to enable the use of electronic communications to be regulated where it is already allowed. The power can be used selectively to offer the electronic alternative to those who want it.
There is a large number of provisions in statutes on many different topics which require the use of paper or might be interpreted to require this. Many of these cases involve communication with Government Departments by businesses or individuals - including submitting information or applying for licences or permits. Other cases concern communications between businesses and individuals, where there is a statutory requirement that the communication should be on paper. The power can be used in any of these cases.
Some examples of the way in which the power could be used relate to the Companies Act 1985. On 5 March 1999 the DTI consulted about whether the Act should be changed to enable companies to use electronic means to deliver company communications, to receive shareholder proxy and voting instructions and to incorporate. The consultation letter "Electronic Communication: Change To The Companies Act 1985" is available from DTIs Company Law and Investigations Directorate, telephone 0171 215 0409. The proposals attracted strong support from respondents.
There are, by contrast, many communications where paper is not currently required - for example the vast majority of contracts fall into this category. People will remain free to undertake transactions of this kind using whatever form of communication they wish.
Subsection (1) gives the appropriate Minister the power to modify, by order made by statutory instrument, the provisions of any legislation for which he is responsible. He may authorise or facilitate the use of electronic communications or electronic storage (instead of other methods of communication or storage) for any purpose mentioned in subsection (2). This power is limited by subsection (3) which places a duty on the Minister not to make such an order unless he is satisfied that it will be possible to produce a record of anything that is done by virtue of the authorisation. It is also limited by subsection (6) so that a person cannot be required to abandon paper unless he has previously chosen to do so.
Subsection (2) describes the purposes for which modification by an order may be made.
Subsection (4) specifies the types of requirement about electronic communications or the use of electronic storage that may be provided for in an order under this Clause.
Subsection (6) provides that an order under this Clause cannot require the use of electronic communications or electronic storage except when someone has previously elected or decided to make use of such communications or storage. When someone has previously chosen the electronic option, restrictions or conditions may be imposed on the variation or withdrawal of such a choice.
Subsection (7) provides that this Clause does not apply to matters under the care and management of the Commissioners of Inland Revenue or the Commissioners of Customs and Excise. Such matters are already covered in Part VIII of the current Finance Bill.
Clause 9: Supplemental provision about Clause 8 orders
This Clause sets out supplementary provisions relating to orders made under Clause 8 and contains standard provisions commonly accorded to powers to make subordinate legislation, such as an ability to make supplementary provision.
Subsections (3) and (4) provide that the regulations made under Clause 8 will be subject to a choice of either affirmative or negative resolution procedure in both Houses of Parliament. The Government intends to use affirmative resolution at least for the first order, so that the general principles can be debated.
Clause 10: Power to require disclosure of key
This Clause sets out the conditions under which notices can be served requiring disclosure of a key necessary to make lawfully obtained protected information intelligible.
This Clause introduces a power to enable properly authorised persons (such as members of the law enforcement, security and intelligence agencies) to serve written notices on individuals or bodies requiring the surrender of information (such as a decryption key) to enable them to understand (essentially make intelligible) protected material which they legally hold or are likely to. By way of illustration, this could include material:
The service of a written notice will need to be authorised by, for example, the Secretary of State, a judge, or a senior police officer, depending on the powers under which the protected material was or is likely to be obtained.
Subsection (1) limits the information to which this power to serve notices applies. It does so by defining the various means by which the information in question has been or is likely to be lawfully acquired.
Subsection (2) states that persons with the "appropriate permission" (see Schedule 1) can serve a notice demanding that the key be provided to make the unintelligible data intelligible if it appears to them that they:
Subsection (3) explains the way in which the notice must be given and what it must state.
Subsection (4) specifies the persons to whom the key may be disclosed.
Subsection (5) ensures that a key which has been solely used for the purpose of generating electronic signatures does not have to be disclosed in response to a notice.
Subsection (7) safeguards existing powers to demand lawful access to protected information. For example, it ensures that this Bill will have no bearing on the use of powers under the Criminal Justice Act 1987.
Section 2 of the Criminal Justice Act 1987 empowers the Director of the Serious Fraud Office to require a person to answer questions, furnish information or produce any specified documents which are relevant to an investigation.
Clause 11: Disclosure of information in place of key
This Clause provides that a person required by a written notice to disclose a key may instead provide the data in an intelligible form, unless the person who gave the authorisation to require the disclosure, or a person entitled to give such authorisation, has specified that only the disclosure of the key itself is sufficient.
This Clause would, for example, allow a company - that might have received an encrypted message from the target of a particular enquiry (e.g. a criminal) - to offer up a intelligible copy of the message (e.g. a printed document) rather than any decryption key.
Clause 12: Failure to comply with a notice
This Clause makes it an offence to fail to comply with a notice given under Clause 10. It allows a defence to a person who shows that he did not have the key to the information (or, where appropriate, the information itself) but gave as much information as he had about how the key could be obtained; or that he did what was required of him as soon as was reasonably practicable.
Clause 13: Tipping-off
This Clause creates a new offence where the recipient of a notice, or a person that becomes aware of it, tips off another that a notice has been served or reveals its contents.
This Clause is to preserve, where necessary, the covert nature of an investigation by, for example, a law enforcement agency. Among the various defences outlined is one where the software used by the recipient of a notice (for example an IT administrator in a company) causes the owner(s) of keys to be alerted when a key is accessed.
Subsection (1) limits this offence to occasions where the notice served explicitly demands secrecy.
Subsection (3) to (5), and (7) and (8)), provide various defences against a charge of tipping off.
The effect of subsection (6) is that the protection in subsections (4) and (5) will not apply where a professional legal adviser tips off a client with a view to furthering any criminal purpose.
Clause 14: Provisions supplemental to sections 12 and 13
Subsection (1) specifies the maximum sentence for the offence of failing to comply with a notice. As regards financial penalties, there is no upper limit.
Subsection (2) specifies the maximum sentence for tipping-off a third party about the serving of a notice. As regards financial penalties, there is no upper limit.
Subsection (3) excludes the offences underClauses 11 and 12 of this Bill from the provisions of section 9 of the Interception of Communications Act 1985.
Section 9(1) of the Interception of Communications Act 1985 provides that in any proceedings before any court or tribunal no evidence shall be adduced and no question in cross-examination shall be asked which tends to suggest that an offence under section 1 of that Act (which prohibits interception except in certain circumstances) has been or is to be committed by any person holding office under the Crown, or anyone engaged in the business of the Post Office or in the running of a public telecommunication system; or which tends to suggest that an interception warrant has been or is to be issued to any of those persons.
Clause 15: General duties of specified authorities
This Clause describes the safeguards that must be in place for the protection of any material handed over in response to the serving of a notice under this Bill.
Subsection (1) ensures that the safeguard requirements apply to all those who may have responsibility for organisations that will handle material provided in response to a notice. In the case of the security and intelligence agencies for example, this will mean the Secretary of State.
Subsections (2) and (3) place an onus on those identified to ensure that:
Clause 16: Code of practice
Clause 17: The Commissioner
This Clause provides for the appointment of a Commissioner to oversee the use of the powers of the Secretary of State to authorise the issuing of disclosure notices under Part III of the Bill.
In practice, this will apply to material acquired pursuant to a warrant signed by the Secretary of State under the Interception of Communications Act 1985, the Intelligence Services Act 1994, and the Security Service Act 1989 as amended by the Security Service Act 1996.
The powers granted to other bodies under this Bill can be reviewed by the courts.
"High Judicial Office" is defined in section 25 of the Appellate Jurisdiction Act 1876 as follows:
"High Judicial Office means any of the following offices; that is to say
The office of Lord Chancellor of Great Britain or of Judge of one of Her Majestys superior courts of Great Britain and Ireland:
Superior courts of Great Britain and Ireland means and includes
As to England, Her Majestys High Court of Justice and Her Majestys Court of Appeal; and
As to Northern Ireland, Her Majestys High Court of Justice in Northern Ireland and Her Majestys Court of Appeal in Northern Ireland; and
As to Scotland, the Court of Session."
The Appellate Jurisdiction Act of 1887 amended the term High Judicial Office in section 5 to include the office of a Lord of Appeal in Ordinary and the office of a member of the Judicial Committee of the Privy Council.
Clause 18: The Tribunal
This Clause establishes a Tribunal to hear complaints in certain cases and award compensation.
Subsection (1) outlines the instances where the Tribunal will hear complaints. The first case is where permission of the Secretary of State is required for the issuing of a notice under Clause 10. This applies to cases arising from warrants signed under:
The second case is where a person is restricted from relying in any proceedings before a court or tribunal on anything done under this Part of the Bill or on any contravention of this Part by virtue of section 9 of the Interception of Communications Act 1985. For example, this could occur where legal proceedings were being taken against a service provider who had been the recipient of a Clause 10 notice in relation to intercepted material.
Subsection (5) states that section 9 of the Interception of Communications Act 1985 is not to apply to hearings before the Tribunal.
Subsection (7) specifies those who may apply to the Tribunal.
Clause 19: Interpretation of Part III
This Clause provides for the interpretation of various terms used in Part III.
"GCHQ" is defined in section 3(3) the Intelligence Services Act 1994 as follows:
"In this Act the expression "GCHQ" refers to the Government Communications Headquarters and to any unit or part of a unit of the armed forces of the Crown which is for the time being required by the Secretary of State to assist the Government Communications Headquarters in carrying out its functions."
"Her Majestys Forces" is defined in section 225(1) of the Army Act 1955 to mean Her Majestys air forces, military forces and naval forces.
"Wireless Telegraphy" is defined in section 19(1) of the Wireless Telegraphy Act 1949 as follows:
"In this Act the expression "wireless telegraphy" means the emitting or receiving, over paths which are not provided by any material substance constructed or arranged for that purpose, of electromagnetic energy of a frequency not exceeding three million megacycles a second, being energy which either
(a) serves for the conveying of messages, sound or visual images (whether the messages, sound or images are actually received by any person or not), or for the actuation or control of machinery or apparatus; or
(b) is used in connection with the determination of position, bearing or distance, or for the gaining of information as to the presence, absence, position or motion of any object or of any objects of any class"
"Interference" is defined in section 19(4) of the Wireless Telegraphy Act 1949 as follows:
"In this Act, the expression interference, in relation to wireless telegraphy, means the prejudicing by any emission or reflection of electro-magnetic energy of the fulfilment of the purposes of the telegraphy (either generally or in part, and, without prejudice to the generality of the preceding words, as respects all, or as respects any, of the recipients or intended recipients of any message, sound or visual image intended to be conveyed by the telegraphy), and the expression interfere shall be construed accordingly."
Subsection (2) serves two purposes. It allows senior officers to issue notices relating to material possessed by more junior officers. It also ensures that the powers apply, for example, where the police do not possess material but have the power to search or inspect the material.
Clause 20 & 21: Modification of licences by the Director
The EC Telecommunications Services Licensing Directive (97/13/EC) requires licensing for telecommunications to be non-discriminatory. In practice this means that modifications usually need to be made to all licences of a particular type at the same time. However, the current licence modification procedure, as detailed under section 12 of the Telecommunications Act 1984, requires the Director General of Telecommunications (DGT) to obtain the written consent of an individual licence holder if he wishes to proceed with a modification without reference to the Competition Commission (CC). Thus if the DGT wishes to make a licence modification without reference to the CC, he must now obtain written consent from all those whose licences are to be modified. Given that there are a large number of individual licensees - well over 100 - gaining this consent is an unduly difficult requirement. For example, some licensees may feel they have insufficient interest to bother to answer the DGTs letter. This could lead to licences becoming silted up with out of date requirements, as well as preventing the DGT from responding appropriately to new developments.
Clause 20 accordingly provides for the procedure for modifying telecommunications licences to allow for simultaneous modification of many licences. It aims to provide more responsive regulation and easier deregulation, while recognising the need for any new obligations facing substantial opposition to be examined by the CC. In particular, the Clause would enable the DGT to proceed without reference to the CC in cases where a proposed modification has general, but not unanimous, support or is deregulatory.
The Clause operates by making modifications to the existing section 12 of the Telecommunications Act 1984 (the 1984 Act) (which sets out the procedure for making modifications) and inserting a new section 12A (setting out the criteria for making modifications).
Subsection (1) provides that notice of modification, in addition to its being published, must be given to every "relevant licensee" (see the new section 12(6E), inserted by subsection (3)).
Subsection (2) replaces section 12(4) of the Telecommunications Act 1984 with two new subsections 4A and 4B. Subsection 4A provides that class licences (i.e. general authorisations, which are deemed to be granted to all those within a particular "class of persons" - e.g. every person in the UK - normally with no fee or registration involved) may be modified despite outstanding representations, provided that no objections come from persons benefiting from the class licence. Subsection 4B paves the way for the criteria in Clause 12A which must be satisfied before a modification is made in the case of a licence granted to a particular person.
Subsection (3) inserts six new subsections in section 12 of the 1984 Act:
Subsections (6A) and (6B), requiring the reasons for the making of a licence modification to be published.
Subsection (6C), enabling the DGT to publish the names of companies objecting to a modification, without their consent, and to publish non-confidential details of objections and representations received.
Subsections (6D) and (6E), which provide definitions.
Subsection (6F) which makes clear that this procedure does not apply to a licence modification by a partial revocation
Subsection (4) inserts a new section 12A into the 1984 Act, which sets out the criteria for modifications to be made. This is illustrated in the flow-chart below.
Subsection 12A(5) provides that the modification may be made to licences issued since the making of a proposal for that modification, so long as the prospective licensee has been given opportunity to object and either has not done so or, if he had done so, would not have caused there to be a blocking minority of objections.
Subsections (5) and (6) make consequential amendments.
Figure 1 below provides a diagrammatic representation of the proposed revised licence modification procedure.
Part IV: Licence Modification Procedure
Clause 21: Appeals against modifications without the licensees consent
Under the existing provisions of section 12 of the 1984 Act, any licensees whose licences are to be modified can force a reference to the Competition Commission if they are unhappy with the decision of the DGT to make the modification. This provides an appeal against licence modification proposals. Since the provisions of Clause 20 give the DGT new powers to modify licences even when there are objections raised by relevant licensees, there is now to be a balancing right of appeal on wider grounds than the normal grounds for judicial review. Clause 21 inserts a new section 12B into the 1984 Act, setting out the mechanism by which such an appeal can be made.
Clause 23: General interpretation
This Clause provides for the interpretation of various terms used throughout the Bill.
Subsection (1) inter alia defines:
electronic communications to include communications by means of a telecommunication system within the meaning of the Telecommunications Act 1984, or by other means but in electronic form.
Section 4(1) of the Telecommunications Act 1984 says
(a) speech, music and other sounds
(b) visual images
(c) signals serving for the impartation (whether as between persons and persons, things and things or persons and things) of any matter otherwise than in the form of sounds or visual images; or
(d) signals serving for the actuation or control of machinery or apparatus.
subordinate legislation as having the same meaning as in the Interpretation Act 1978, and also including certain statutory rules in Northern Ireland.
Clause 24: Short title, commencement, extent
Subsection (2) allows the Secretary of State to commence provisions on the Bill on such days as he may appoint. Different days may be appointed for different purposes.
Subsection (3) prevents the Secretary of State from bringing into force anything relating to authorising the Secretary of State to grant permission for the purposes in Schedule 1 until such time as the Tribunal mentioned in Schedule 1 has jurisdiction.
COMMENTARY ON SCHEDULES
Schedule 1: Persons Having the Appropriate Permission
Schedule 1 deals with the duration and types of appropriate permission which may empower a person to serve a notice under Clause 10 of this Bill requiring disclosure of information.
Paragraph 1: Data obtained under warrant
This paragraph deals with notices requiring disclosure, where the unintelligible information was obtained under a statutory power exercised in accordance with
Examples of legislation under which the Secretary of State may issue a warrant include the Interception of Communications Act 1985 and the Intelligence Services Act 1994. Examples of legislation under which a person holding judicial office may issue a warrant include the Police and Criminal Evidence Act 1984 and the Drug Trafficking Act 1994.
Sub-paragraph (2) states that the warrant or authorisation may empower a person to serve a notice requiring disclosure if
The authority needed for the issue of a written notice requiring disclosure varies according to the power under which the material in question is obtained (see sub-paragraphs (3) to (5)).
Sub-paragraphs (6) to (8) describe those persons who may issue a warrant or authorisation under Clause 10.
In sub-paragraph (6)(c), an authorising officer within the meaning of Clause 93 of the Police Act 1997 means the Commissioner, a person appointed under that Act and who holds or has held high judicial office within the meaning of the Appellate Jurisdiction Act 1876 (for which see the explanatory notes on Clause 17).
Sub-paragraph (9) excludes from this paragraph unintelligible information
This might include, for example, cases where a constable has a right to enter premises under a warrant and while on the premises uncovers matter which he suspects to be evidence of a crime unrelated to the warrant itself, in accordance with e.g. Police and Criminal Evidence Act 1984 section 19.
Paragraph 2: Data obtained under statute but without a warrant
This paragraph deals with unintelligible information to which Paragraph 1 above does not apply, and which has come into the possession of any person as described under Clause 10(1)(a), (b) or (c) of this Bill (i.e., because the case does not involve a warrant issued by the Secretary of State or a person holding judicial office, or an authorisation under Part III of the Police Act 1997).
Paragraph 3: Data obtained without the exercise of statutory powers
This paragraph deals with unintelligible information that has come into the possession of an intelligence agency, the police or Customs and Excise by any other lawful means not involving the exercise of statutory powers.
Paragraph 4: General requirements relating to the appropriate permission
This paragraph makes some further stipulations about the categories of person who may be empowered to require disclosure. It also makes some stipulations about the permissions that may be given by members of the police, Customs and Excise and the armed forces.
Sub-paragraph (3) states that in the case of information which has come into the polices possession by means of powers to stop and search vehicles and pedestrians under the Prevention of Terrorism Act 1989, those able to authorise the serving of notice to disclose keys must be an officer of police of or above the rank specified in section 13A of that Act.
Section 13A of that Act specifies such ranks as:
Paragraph 5: Duration of permission
This paragraph provides for the duration of the validity of authorisations to serve a notice and prevents the issue of a notice after the authorisation has expired. The Bill does not require that a limit must be placed on the duration of an authorisation.
Paragraph 6: Formalities for permissions granted by the Secretary of State
Paragraph 6 states that any permissions granted by the Secretary of State in accordance with Schedule 1 may only be granted
Schedule 2: The Tribunal
Schedule 2 provides for the constitution and functions of the Tribunal established under Clause 18.
Paragraph 1: Constitution of Tribunal
This paragraph determines the constitution of the Tribunal.
Sub-paragraph (1) ensures that members of the Tribunal may be drawn from the legal profession in all parts of the United Kingdom. The requirement of ten years standing means that only those eligible for appointment to the judiciary can serve. These criteria and the subsequent provisions are essentially those for the IOCA Tribunal (Schedule 1 of the Interception of Communications Act 1985).
The Courts and Legal Services Act 1990 states that a person has a "general qualification" if he has a right of audience in relation to any class of proceedings in any part of the Supreme Court, or all proceedings in county courts or magistrates courts.
Sub-paragraph (3) limits the term of office to 5 years. A member whose term of office expires is eligible for reappointment. Were he to serve a second time he would have to be re-appointed by further Letters Patent. There is no retirement age.
Sub-paragraph (4) provides the means whereby a member may resign.
Paragraph 2: President and Vice-President
Sub-paragraphs (1), (2) and (3) establish the positions of President and Vice-President who will be members of the Tribunal.
Paragraphs 3 to 5: Procedure of Tribunal etc.
Paragraph 3 sub-paragraphs (1) to (6) concern the rules under which the Tribunal will operate for hearing complaints. The rules are to be made by the Secretary of State, who is to ensure that complaints are properly considered while ensuring that information is not disclosed that would, for example, be prejudicial to national security.
Paragraph 4 states that the Tribunals rules will be established by statutory instrument, a draft of which will first be laid before Parliament.
Paragraph 6: Appointment of Special Representatives
This provides for the appointment of persons (Special Representatives) whose function will be to represent the interests of the appellant in proceedings before the Tribunal from which he and any legal representatives are excluded by virtue of the procedural rules set out in paragraph 3, above.
Sub-paragraph (2) defines who may be appointed to carry out the role of Special Representative.
Paragraph 7: Co-operation with Tribunal
this paragraph imposes a duty on persons to provide to the Tribunal any documents or information it may require in order that it may carry out its functions under Clause 18 of the Bill.
Paragraph 8: Appeals on points of law
This paragraph provides for an appeal to an appropriate appeal court (defined in sub-paragraph 3) on any question of law material to a final determination from the Tribunal.
Paragraph 9: Salaries and expenses
This paragraph deals with the payments of the members of the Tribunal and of its expenses.
Paragraph 10: Officers
Sub-paragraph (1) provides for the appointment of officers of the Tribunal by the Secretary of State, after consultation with the Tribunal. The Secretary of State may not therefore proceed unilaterally to make appointments. The provision itself places no limitation on the number of officers and (subject to the usual Treasury approval as to numbers) allows flexibility over the numbers, grades and individuals.
Sub-paragraph (2) enables an officer who is authorised by the Tribunal to obtain documents on the Tribunals behalf.
Paragraph 11: Parliamentary Disqualification
The parts of the Schedules referred to in this paragraph list the bodies whose members are disqualified from membership of the House of Commons and the Northern Ireland Assembly respectively. They include Tribunals and public Boards, Commissions and Councils. Members of this Tribunal (as people paid for adjudicating in a quasi-judicial capacity on the decisions of Ministers, and able to overturn those decisions) clearly fall within the category of those who are normally disqualified.
FINANCIAL EFFECTS OF THE BILL
The approvals scheme under Part I would have no net impact on public expenditure because the Government intends that the fees would cover the cost of running the scheme. It is thought that Part II will result in significant savings, over time, as the option of electronic communication or storage is enabled for different purposes, and as greater use is made of electronic signatures. The Government does not envisage that significant public expenditure implications will arise from the new lawful access powers (Part III). The new licence modification procedure established by Part IV of this Bill is likely to reduce public expenditure by avoiding unnecessary Competition Commission references.
EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER
The approvals scheme (Part I) is likely to result in a small increase in manpower. It is not envisaged that the law enforcement agencies will need an increase in manpower as a result of the powers provided for them in Part III.
REGULATORY IMPACT ASSESSMENT
The provisions in Part II of the Bill are expected to lead to substantial savings for business in transacting with Government.
Cryptography Services Providers
The proposed approvals scheme for cryptography service providers is voluntary in nature and therefore whether or not a company seeks approval will be a business decision for it. Only those companies in the specialised sector of providing cryptography services will be directly affected and the total cost will be modest. The precise cost of approval will depend on the nature of the services a company may wish to be approved for and the scale of their business. There could also be marginal costs of meeting the standards required to gain approved status if these were set higher than the market required.
In deciding whether to seek approval a company will need to take account of the additional revenues which being approved might bring. Approved suppliers of some public-key certificates are likely to have a significant marketing advantage due to their certificates having legal recognition throughout the EU.
The objective of the new powers contained in Part III of the Bill is to ensure, as far as possible, that there is no overall reduction in the ability of the law enforcement, security and intelligence agencies to fight crime and threats to national security. Without these powers, there is a risk that criminal use of encryption will undermine the effectiveness of vital powers of interception and search and seizure.
The proposed new lawful access powers will apply to individuals and businesses alike. Costs will occur where persons are served with authorised written notices requiring the production of decryption keys or plaintext. Where the production of plaintext is deemed acceptable, compliance costs may be limited to the administrative costs of processing the notice and delivering up the required data. But where a notice specifies that a key be handed over, the individual/business served with a written notice may decide that their security has been compromised and may incur considerable costs in implementing new security systems or changing the keys of other trading partners, customers or associates.
The proposals on telecommunications licences principally impact only on those telecommunications operators who have individual licences. They will enable licence modifications which command general, though not unanimous, support in the industry, or those which are deregulatory, to be implemented without the need for a complex and expensive Competition Commission enquiry. The precise impact of these proposals will depend upon the nature of the modifications which may from time to time be proposed by Oftel, but the overall impact is likely to be deregulatory and to the extent that expensive competition commission references can be avoided, substantial savings could be made.
EUROPEAN CONVENTION ON HUMAN RIGHTS
Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before second reading, about the compatibility of the provisions of the Bill with the Conventions rights (as defined by section 1 of that Act). The Secretary of State for Trade and Industry made the following statement when publishing the draft Bill:
"In my view the provisions of the Electronic Communications Bill are compatible with the Convention rights".
Extract from the Telecommunications Act 1984 showing words inserted at Section 12 by the Bill; it also shows other amendments made by the Bill (not highlighted)
Modification of licence conditions by agreement.
12 (1) Subject to the following provisions of this section, the Director may modify the conditions of a licence granted under section 7 above.
(2) Before making modifications under this section, the Director shall give notice-
(a) stating that he proposes to make the modifications and setting out their effect;
(b) stating the reasons why he proposes to make the modifications; and
(c) specifying the time (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made.
(3) A notice under subsection (2) above shall be given by publication in such manner as the Director considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them and, in the case of a licence granted to a particular person, by sending a copy of the notice to every relevant licensee.
(4) Delete existing subsection and replace with:
(4A) In the case of a licence granted to all persons, or to all persons of a particular class, the Director shall not make any modification unless-
(4B) In the case of a licence granted to a particular person, the Director shall not make any modification unless-
(5) The Director shall also send a copy of a notice under subsection (2) above to the Secretary of State; and if, within the time specified in the notice, the Secretary of State directs the Director not to make any modification, the Director shall comply with the direction.
(6) The Secretary of State shall not give a direction under subsection (5) above unless-
(a) it appears to him that the modification should be made. if at all, under section 15 below; or
(b) it appears to him to be requisite or expedient to do so in the interests of national security or relations with the government of a country or territory outside the United Kingdom.
(6A) Where the Director makes a modification under this section, he shall, as soon as reasonably practicable after making the modification, give notice of-
(6B) Subsection (3) above shall apply in the case of a notice under subsection (6A) above as it applies in the case of a notice under subsection (2) above.
(6C) Where the Director has given notice under subsection (2) above of a proposal to modify the conditions of a licence, he may in such manner and at such time as he considers appropriate publish-
(7) References in this section and in sections 12A to 15 below to modifications of the conditions of a licence do not include references to modifications of conditions relating to the application of the telecommunications code.