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Select Committee on Trade and Industry Eighth
II INSIDE GOVERNMENT
Secondary legislation on signatures etc
11. In May 1999 we were critical of the DTI for its slowness to recognise the
need for swift legislative action to remove outdated requirements in primary and
secondary legislation for written documents and physical signatures. We
recommended that powers should be taken in primary legislation to change
existing statute by secondary legislation. The Act gives Ministers power under
section 8 to amend statute by order so as to permit electronic signatures and
the possibility of communicating electronically rather than in writing.
12. The September 1999 PIU Report recommended that steps be taken "as
swiftly as possible" by departments to ensure that advantage could be taken
of the provisions in the Bill, and that work on this should start in parallel
with the passage of the Bill through Parliament. We
welcomed the "new sense of urgency" in our October 1999 Report on the
draft Bill and recommended that departments publish their priorities for using
such secondary legislation. The Government accepted
this recommendation in January 2000 and also the recommendation that departments
publish within two years details of all the outdated statutory definitions of
words such as "writing" and "signature" which they intend to
13. On 24 May 2000, the day before Royal Assent to the Bill, a list of 11
possible items of secondary legislation was published as a Written Answer.
These included some issues of real significance, such as electronic conveyancing,
electronic authentication of records for legal purposes and electronic
communications between companies and shareholders, and some of rather a lesser
degree of significance. The Answer also revealed that some departments
"have not identified any such statutory requirements that require
updating". Some of the changes had been in prospect for some time,
including the amendment of the Companies Act. In the past few months there have
been a few further proposals. The March 2001 progress report lists 16 proposals.
Some of the new ones are significant, including the possibility of conclusion of
a regulated credit agreement by electronic means, and the introduction of
electronic prescriptions. The Regulations allowing GPs to hold electronic
patient records, cited in monthly progress reports as an example of removal of a
barrier, were in fact made under other statutory powers and had been subject to
discussion for over a year. Two Orders are listed as having been made. Although
nobody could describe the intended output of secondary legislation arising from
section 8 of the Electronic Communications Act as dramatic in its scale or
scope, there are a number of proposals out for consultation which if they come
to fruition could have genuinely beneficial effects.
14. The September 2000 Annual Report revealed in all its modesty the
Government's target that "70% of those Orders announced to Parliament by
Ian McCartney on 24 May 2000 will be made by the end of 2001", with the
rest by the end of 2002. We cannot fathom the mathematics behind this— what is
70% of 11?— or the policy thinking. If these are priority Orders, identified
in the course of 1999 and early 2000, we cannot understand why they cannot be
brought forward now, in 2001. The e-Minister told us that there were pressures
on lawyers' time as a result of the Human Rights Act.
We are also concerned that some departments should evidently be dragging their
feet. The Minister admitted that some had moved faster than others, and that
Ministers had written to several departments. We
recommend that departments which have not identified any need for secondary
legislation to allow for electronic signatures be asked for evidence of the
nature of their inquiries, that the target for passage of the measures referred
to in the May 2000 written answer be revised to 100% achievement, and that a
second tranche of orders be brought forward as soon as possible.
15. One of the two principle purposes of the Electronic Communications Act was to give Ministers powers to introduce a statutory scheme for licensing of Trusted Service Providers (TSPs), in the event of failure of self-regulation through a voluntary accreditation scheme. This proposal was a compromise which we had put forward in our May 1999 Report, following an acrimonious controversy between business and Government as to the need for statutory regulation.
16. The voluntary accreditation scheme developed by the Alliance for
Electronic Business (AEB) is known as the tScheme. The September 2000 Report
committed the Government to continue to work with the AEB to create the tScheme.
In December 2000 the Minister told us that she was satisfied with progress,
although there were very difficult issues, and that it was still hoped that it
would be possible to begin delivering approvals to the TSPs in March 2001. The
e-Envoy noted that the Government Gateway going live for transactions in March
would also assist on the demand side for these services. Viacode, owned by the
Post Office (Consignia), are likely to be the first approved accreditor.
Successive progress reports record that promotional work is pending until the
scheme is up and running, and that the Cabinet Office is in active discussion
with tScheme on how approvals can meet specific government needs in respect of
authentication. Much parliamentary time has been devoted to the question of
regulation of approvals for Trusted Service Providers. We would welcome a
detailed progress report on the tScheme in response to this Report.
17. The other principle point of controversy in legislation on electronic commerce, on which we reported in 1999, was over the interception of communications regime. This was in the end introduced and passed as a separate Regulation of Investigatory Powers Act. The regime is primarily a Home Office responsibility. There are continuing points at issue, including the apportionment of the costs of the interception regime. There have been meetings with the Minister of State at the Home Office on 13 December 2000 and 12 March 2001. Some alarm has been caused by proposals from law enforcement agencies that Internet Service Providers would have to retain records of communications for a period of years. We understand that, despite the Minister telling us in December 2000 that Ministers did not favour these proposals, the agencies are continuing to press for them in a European context. The Internet Crime Forum is intended to facilitate dialogue between all those involved in what has in the past been a confrontation. There is a general interest in helping ensure that the internet is both secure from attack and not used for criminal purposes. We welcome continuing reporting of progress through the monthly implementation reports, and recommend that the next Annual Report reveal practical examples of the benefits of the changes introduced in the Regulation of Investigatory Powers Act.
17 10.43, 10.45
18 C 862, paras 17 and 18
19 HC 168, page v
20 HC Deb, 24 May 2000, cols 531-3w
21 Qq 37-8
22 Qq 35-7
23 Q 89
24 Qq 93-4
Examination of witnesses (Questions 80 - 106)
WEDNESDAY 13 DECEMBER 2000
MS PATRICIA HEWITT, MR ANDREW PINDER and MR CHRIS PARKER
90. Moving on to the Regulation of Investigatory Powers Act,
better known as RIPA—RIPA sounds much better—RIPA (sic) of course are
meeting with industry today to discuss the presentation of that and that meeting
is taking place with Charles Clarke.
(Ms Hewitt) Yes.
91. I wonder if you do not feel this is a snub and somewhat a
downgrading of the E-commerce Envoy. Surely you should have been leading these
discussions? I wonder what you feel about that.
(Ms Hewitt) I am delighted.
92. That you are excluded?
(Ms Hewitt) Far from feeling snubbed, it was my Department and I who put in place last year the Industry Forum which got the Home Office and the law enforcement agencies and the internet service providers and the internet industry talking to each other and beginning to understand each other's business. When Charles Clarke and I were appointed in July of last year to our respective positions, we found there were very considerable difficulties with the proposals which were being made for the RIP Act. We initiated that Industry Forum but always with the intention that the Home Office, and in particular Charles, would take over chairing that because the RIP Act is a piece of Home Office legislation, albeit one on which my officials and I have been very closely involved and will continue to be closely involved, but it is absolutely right that he chairs that and ensures that the law enforcement agencies and the Home Office draw up a new code of practice under the RIP Act in very close consultation with the industry. We ourselves obviously work very closely with the Home Office to ensure we have our own input into the implementation issues and the code of practice, just as we did into the drawing up of the RIP Act in the first place, and of course we continue to talk directly to the industry with whom we have a very close relationship and, amongst other things, make sure they are content with the progress being made on the Act.
93. Can you comment on the suggestion made by the National
Criminal Intelligence Service, GCHQ and all the other spooks which are around,
that companies should keep all their communications for seven years. Would you
agree with those comments?
(Ms Hewitt) I do not agree with the proposals. I saw them in the press, I think, ten days ago. I have not had formal communications with the Home Office, I have discussed it informally with Charles Clarke and I understand it is his view as well that that proposal should not be implemented.
94. Will that be part of the discussions today?
(Ms Hewitt) I have no doubt it will, but since the discussions are taking place at the moment I have not yet had a report on it.