My Lords, the new definition of communications data that we brought forward at Report stage was generally welcomed. The rather complicated amendment that we tabled sought to clarify the definition in such a way as to remove the possibility of catching the content of a communication. The intricate nature of the definition and the complex changes we had needed to make to that definition had led us to believe that we needed some way of coming back to this definition if changing technology required it. Hence our inclusion of an order-making power.
Admittedly, that proposal did not receive universal support. The noble Lords, Lord Cope and Lord McNally, expressed some concern that the order-making power did not include a limitation that any suggested definition would not be widened to include content. Although noble Lords accepted that it was never our intention to include content within the definition of communications data, their misgivings struck a chord, and I agreed to reflect further on the wording of our amendment to see whether we could provide a stricter formulation that would assuage the concerns that had been understandably expressed.
We considered various drafting arrangements to limit the power so that it could not be used to include more data than the current definition, as was always our intention, but the drafting exercise simply became too complex. The Government have therefore tabled Amendments Nos. 1 and 12 and consequential amendments, Amendments Nos. 47 and 49, to remove the order-making powers relating to the definition of communications data. I sense that the amendments will probably be welcomed by the House. I beg to move.
My Lords, as the Minister said, I was one of those who had misgivings about the order-making power, particularly because it would have enabled the Government, by order, to extend some of the definitions in the Bill so as to be able to intercept e-mail traffic without the safeguards provided. That was not desirable. I quite understand that the Minister, his colleagues and advisers found it difficult to draft a different order-making power which would have had precisely the effect that we had suggested. In the circumstances, I believe that the Minister has done the right thing in withdrawing the order-making power through Amendments Nos. 1 and 12 and those that go with them.
moved Amendment No. 2:
Page 13, line 26, leave out subsection (10) and insert-
("(10) For the purposes of this section-
(a) the scheduled parts of an interception warrant are any provisions of the warrant that are contained in a schedule of identifying factors comprised in the warrant for the purposes of section 8(2); and
(b) the modifications that are modifications of the scheduled parts of an interception warrant include the insertion of an additional such schedule in the warrant; and references in this section to unscheduled parts of an interception warrant, and to their modification, shall be construed accordingly.").
My Lords, I am tempted to utter those fateful words, "This is a technical amendment". It is, actually. Noble Lords will recall that an interception warrant comes in two parts. The front part--or "unscheduled part"--contains the name of the target person or premises. The back part--or "scheduled part"--contains, in an ordinary case, the telephone numbers which are to be intercepted. There may be more than one schedule in the scheduled part, with each containing numbers belonging to a particular service provider. The difference in practice between the two parts of the warrant is that only the Secretary of State can modify the front part of the warrant, while the scheduled part may be modified by a senior official or, in urgent cases, by an authorised officer within the intercepting agency.
This amendment removes an ambiguity in the Bill by making it clear that modifying the scheduled part of a warrant can include adding a new schedule. So if a target changes not just his phone number but also his service provider, the necessary modification will keep up with him. This has always been the intention. The amendment seeks only to clarify Clause 10. I trust that the amendment will be satisfactory to the House. I beg to move.
moved Amendment No. 3:
Page 15, line 22, leave out ("The person to whom a notice is given may") and insert ("Where a notice is given to any person under subsection (2) and otherwise than by virtue of subsection (5A)(c), that person may, before the end of such period as may be specified in an order under this section,").
My Lords, I move this amendment with great hopes of success on this occasion in view of the support given to our amendment by the noble Lords, Lord McNally and Lord Bassam of Brighton. That is probably a winning combination. The amendment and the other amendments grouped with it follow the decision of the House about the introduction of a technical advisory board. In moving that amendment at Report stage, I said that it was the principle which concerned me rather than the detail of the drafting. The Government have suggested some improvements in the drafting which are now embodied in this set of amendments. Those improvements should recommend themselves to the House.
The position remains that the technical advisory board will be set up and will have two duties. First, it will need to examine, together with others, statutory instruments involving the orders put forward by the Secretary of State as regards what are now known as black boxes; namely, the equipment to be put in place with Internet service providers to monitor e-mails and so forth. The technical advisory board will advise the Secretary of State on that matter. The reports that it will submit to the Secretary of State may well be published in part or in full, but that would depend on the members of the board and on the Secretary of State. No requirement has been put in the Bill. Obviously, some of the board's comments and recommendations may well be extremely confidential.
The second role of the technical advisory board will be to act as a form of appeal mechanism if a black box is imposed on a provider which seems unreasonable, either for technical reasons or because the move appears altogether over the top, as it were. In that case, the provider will be able to appeal to the technical advisory board, although it will remain for the Secretary of State to take the ultimate decision.
It was suggested in the amendment tabled on Report that the board should comprise six members drawn from the industry (service providers and so forth) and six members from the users of interception (the police, HM Customs and the security services). The amendments tabled today provide for a more flexible arrangement, still allowing for a balance between the two sides, but nevertheless including a provision that others may be appointed at the discretion of the Secretary of State, which might broadly represent consumers--those whose communications are likely to be intercepted. That meets the comments made on Report and at Committee stage by the noble Lord, Lord Desai, when similar amendments were discussed.
I hope that the technical advisory board will lead to greater co-operation within the statutory framework between the security agencies and the police on the one hand and the electronics experts, service providers and so forth on the other. That will lead to a greater mutual understanding of the requirements of both sides and hence to a more effective mechanism which, it is hoped, will interfere less than might otherwise be the case with the normal operations of service providers and ultimately with e-commerce. The amendments provided by the Government to this proposal are desirable and I commend them to the House. I beg to move.
My Lords, I should like, first, to thank the noble Lord, Lord Cope, and the noble Lord, Lord McNally, for working so closely with the Government on this group of amendments. I pay tribute to their pragmatism as regards this issue. In the debate on Report the noble Lord, Lord Cope, said--quite rightly--that the principle was more important than the detail here. He made it clear that he was less concerned about the detail than the basic proposal for a board. Indeed, he has reflected that in his comments this afternoon. In my response on Report I said that not much lay between us on this issue. It was only the vehicle and detailed mechanisms that we were debating. What has been tabled today is a set of amendments which we believe will be far more workable.
Before I address the substance of the amendments, I wish to clarify one point. Some commentators have rather dramatically overestimated the number and range of telecommunications service providers on whom an interception capability requirement may be imposed. The consultation paper we published in June last year set out the kinds of areas we have in mind. These include the Internet service provider industry and the satellite market.
However, notices under Clause 12 will not be served wholesale across a market sector. In particular, I should like to emphasise that we do not envisage serving notices under Clause 12 with respect to telecommunication services provided solely to the financial markets. Interception is only ever used as a method of last resort--that is how we see this matter. We do not believe that requiring such services to develop and maintain an interception capability would be appropriate. I hope that this commitment will reassure those who are concerned that we may serve a notice on such companies and that they will derive further reassurance from the wording of the order which the Secretary of State will make under Clause 12 in due course.
Turning to the set of amendments before us, I shall explain how they achieve three things. First, they seek to clarify the function of the technical advisory board in considering a reference. Secondly, they provide that a notice is effectively suspended pending consideration by the board. Thirdly, they make it clear what may happen when a reference is made. Finally, as the noble Lord, Lord Cope, acknowledged, they introduce an element of further flexibility as to the constitution and membership of the advisory board.
I am glad that noble Lords opposite have joined together in tabling these amendments. On the question of the membership of the advisory board, as I said earlier, I know that no firm views were expressed as to the precise membership when this matter was debated last week. Some suggestions were made that voices above and beyond those of the communications industry and law enforcement should be heard on the advisory board. I am not entirely convinced that that would be appropriate. The board is likely to need to consider highly technical issues. It will need to focus its attention on such matters. None the less, the order-making power which is proposed in Clause 13 allows for flexibility here.
More important is that the flexibility engendered by the order-making power gives the Government some further time to consider the question of who should act as the chairman of the board. This is a point that has been raised by the noble Lord, Lord Cope, on previous occasions. It is a difficult issue to which we should like to give proper thought, along with industry. We shall consult with representatives on that matter.
Finally, we are yet to speak to industry about the precise composition of the board and would like to take those views before establishing it in an order made under the Bill. The important point to note is that the board should include representatives of industry, as identified at subsection (2)(a) of the proposed amendment; that the board should include membership from those who apply for interception warrants, as identified at subsection (2)(b); and, crucially, that there should be a balance between these two groups as stipulated at subsection (2)(d).
I shall be happy to work with these amendments. The joint drafting has greatly improved their quality and, as I said earlier, I am most grateful to noble Lords for their assistance in this matter.
My Lords, before the Minister sits down, perhaps I may make a brief comment. Although the Minister was obviously not in a position to see for himself, when he reached the point he made about a possible chairman for the board, the noble Lord, Lord Desai, clearly indicated that he was a candidate.
My Lords, perhaps I may intervene to make a brief remark. I have been a Member of your Lordships' House since 1971. In that time I have seen many all-party amendments being passed on legislation. However, I do not ever recall seeing one to which a Government Minister had added his name. I hope that this is a good omen for the future. The mechanism may be suitable for dealing with technical and complex matters such as this.
moved Amendments Nos. 4 to 6:
Page 15, line 23, leave out ("to") and insert-
("(5A) Where a notice given to any person under subsection (2) is referred to the Technical Advisory Board under subsection (5)-
(a) there shall be no requirement for that person to comply, except in pursuance of a notice under paragraph (c)(ii), with any obligations imposed by the notice;
(b) the Board shall").
Page 15, line 24, leave out ("and the Board") and insert (", for the person making the reference, of the notice referred to them and").
Page 15, line 25 at end insert ("; and
(c) the Secretary of State, after considering any report of the Board relating to the notice, may either-
(i) withdraw the notice; or
(ii) give a further notice under subsection (2) confirming its effect, with or without modifications").
On Question, amendments agreed to.
Clause 13 [Technical Advisory Board]:
moved Amendment No. 7:
Page 16, leave out lines 23 to 26 and insert ("such number of persons appointed by the Secretary of State as he may by order provide.
(2) The order providing for the membership of the Technical Advisory Board must also make provision which is calculated to ensure-
(a) that the membership of the Technical Advisory Board includes persons likely effectively to represent the interests of the persons on whom obligations may be imposed under section 12;
(b) that the membership of the Board includes persons likely effectively to represent the interests of the persons by or on whose behalf applications for interception warrants may be made;
(c) that such other persons (if any) as the Secretary of State thinks fit may be appointed to be members of the Board; and
(d) that the Board is so constituted as to produce a balance between the representation of the interests mentioned in paragraph (a) and the representation of those mentioned in paragraph (b).
(3) The Secretary of State shall not make an order under this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").
On Question, amendment agreed to.
Clause 14 [Grants for interception costs]:
moved Amendment No. 8:
Page 16, line 27, leave out subsection (1) and insert-
("(1) It shall be the duty of the Secretary of State to ensure that such arrangements are in force as are necessary for securing that a person who provides-
(a) a postal service, or
(b) a telecommunications service, receives such contribution as is, in the circumstances of that person's case, a fair contribution towards the costs incurred, or likely to be incurred, by that person in consequence of the matters mentioned in subsection (2).").
I wish to speak also to Amendments Nos. 9 and 10. These amendments clarify the effect of the amendments to this clause made by noble Lords last week. This clarification is necessary as the effect of the amendments last week was to create two separate but overlapping duties in Clause 14. The first duty, at Clause 14(1), was in respect of marginal costs for postal companies, marginal costs for telecommunications companies and capital costs for both. The second duty, at subsection 14(3), was in respect of the marginal costs of companies which also happen to be the subject of obligations under Clause 12.
Prior to last week's amendments, the obligation on the Secretary of State under subsection (3) was stronger than the discretion under subsection (1). Hence they were treated separately although there was a degree of overlap between them.
The effect of last week's amendments was to introduce an obligation under subsection (1). As both subsections now impose an obligation to pay contributions, or to see that contributions are paid, it is right that they should now be wrapped up into a single duty. The amendment is recast in terms of "arrangements" for securing that contributions are paid, as this allows other means of payment than direct payment from the Home Office. For example, contributions to the marginal costs for telephone interception may well come from the National Criminal Intelligence Service. That is what is now proposed in subsection (1) of this amendment. The issues for which payments can be made--listed in subsection (2)--remain unchanged.
This amendment incorporates a slight elaboration on the requirement to ensure a fair contribution in subsection (1). It specifies that considerations of fairness should look to the particular circumstances of the case in question; in other words, on a case by case basis. Particular notice should be taken of the circumstances of the service provider on whom the obligation is being imposed. We argue that that is the fairest way to deal with the matter. A wide variety of issues may be relevant here but I am pleased that the noble Lords opposite and I have been able to reach agreement that the duty of the Government to ensure fairness in the regime to be operated under Clause 12 carries with it an explicit commitment to consider the circumstances of each individual service provider approached when assessing what is a fair contribution. I would expect this to include a consideration of a wide variety of factors such as comparisons with international practice; the nature of any additional burden to be imposed; the size of the company in as far as that may be related to the ability of the company to absorb the burden, and other factors besides.
Amendment No. 9 includes a new subsection to replace existing subsection (3). This is merely the familiar provision that the Secretary of State may make arrangements for payments to be made out of money provided by Parliament in order to fulfil the duty identified at subsection (1). I beg to move.
My Lords, as the noble Lord, Lord Bassam, pointed out, my name is also added to the amendment, which seeks to implement the decision that noble Lords took on Report with regard to cost.
With regard to the previous group of amendments, the Minister said, most helpfully, that the Government do not expect to make any requirement under Clause 12 to service providers who deal only with the financial services industry. I believe that that measure will be widely welcomed, as the Minister suggested. I hope that there will be great awareness of it.
Neither the amendment nor the Bill defines "fair". The proposed subsection (1) in the amendment states,
"such contribution as is, in the circumstances of that person's case, a fair contribution".
That permits the Government to allocate different proportionate contributions in different circumstances. It is right and fair in some circumstances--particularly in the case of a small company--for the Government to pay the whole cost of what is required; that is, the black boxes. As the black box will carry out the work that is required by the agencies of the Government, the police and so on, the presumption should be that it is fair that the agency concerned should pay the major cost of it.
I appreciate that it is argued that in some cases the equipment will also benefit service providers by providing them with extra information and facilities. Nevertheless, the main purpose of the black boxes is to serve the interests of the Government. Therefore, it is right that the taxpayer should pay the major part of the cost. Anyone who feels aggrieved at the settlement could no doubt seek judicial review in regard to the proportion of the cost that is considered fair.
I turn to the total cost. I admit to having become a little confused with regard to the sum of £20 million. I may have inadvertently contributed to my confusion and perhaps to other people's on this matter. However, my original understanding was that the sum of £20 million was the estimated cost of the black boxes, part of which was to be borne by the Government and part of which was to be borne by the ISPs.
However, my subsequent understanding was that the sum of £20 million was the total cost of the Government's contribution to the scheme. That implies that the total cost of the black boxes will be higher than that. For example, it might be £30 million, of which the Government would pay £20 million and the ISPs £10 million. It is, of course, difficult to estimate the cost because we are not sure how many service providers will be asked to install such equipment, or what the nature of the equipment is. The Smith report began a discussion on that matter but it by no means concluded it. The recommendations of the Smith report no longer appear to be a sound basis on which to proceed.
A large proportion of the costs will comprise the extent to which the facility is used. That is difficult for those inside government, let alone those outside, to determine. The facility may develop over time, but so may the cost of an individual black box. The one thing of which we can be certain is that the technology which is appropriate today for this purpose will probably have developed out of all recognition in a year or two, or three years, and probably in an even shorter period. That fact also makes any estimate of costs liable to change. However, this is an important matter. Whatever sum of money is paid by service providers--however large or small--will damage the competitiveness of British service providers compared with those overseas who do not have this overhead.
I appreciate that other countries may, in time, follow the lead given by the Government; so the competitive position may even out slightly if they do the exactly the same and adopt the same charging arrangements. But in the mean time--possibly for ever in regard to some smaller countries, especially tax havens--whatever the figure is, it will prove a competitive disadvantage to British service providers and others subject to the charge. I am sorry to expand at some length on this matter, but it is important. We should do our best to be clear about this before finally sending this piece of legislation on its way.
We have gone along with the Government a great deal in all these matters and they have moved in our direction a great deal. But the question of cost, and of how much of the cost will finally come out of the pockets of British service providers, is important to whether or not British electronics companies remain competitive in the world.
My Lords, I should like to associate myself with the concerns expressed by the noble Lord, Lord Cope. As he said, we have moved a long way from the Bill's starting-point and the implication that the police, the security services and others could specify whatever equipment they thought necessary and the service providers would pick up the bill. There is now much less of a "blank cheque" approach.
However, the Alliance for Electronic Business has raised the point that service providers will, as their part of the bargain, be responsible for hardware and software, opportunity cost, IT development time and the costs of planning and management time. Is it clear, in return, that what is on offer from the Government is a Treasury-capped £20 million over three years? If that is what is on offer, the approach seems rather churlish. As all sides concede, we are entering unknown territory. It is difficult to understand how it is possible to be "fair" while capping and restricting the nature of the Government's commitment in advance. Industry is eager to know whether its understanding is correct; namely, that it is a hard fact that all that is on offer is £20 million over three years, capped by the Treasury.
My Lords, I welcome the fact that the noble Lord, Lord Bassam, and his department have taken so constructively the decision of this House when this matter was put to a vote on Report. It is definitely an improvement to have the word "fair" included in the Bill, and to have some further explanation of what that means.
Building on points raised by the two previous speakers, surely the £20 million mentioned previously by the noble Lord, Lord Bassam, is only an example for reference purposes. Clearly, we cannot say on the one hand that it is impossible to specify the amount of money that is to be set aside for this purpose when we do not yet know what the total bill will be, and, on the other, have a categorical statement in the Bill that the contribution by the Secretary of State will be "fair". Estimates of the total bill range from the upper hundreds of millions of pounds to some tens of millions of pounds, as put forward by the Government.
I should be grateful if the Minister will confirm that the figure he mentioned was a Treasury estimate and that it in no way binds the Government, or at least is in no way meant to be used by the courts in interpreting a "fair" contribution.
My Lords, perhaps I may make one small point. As time moves on, the technology in this field becomes cheaper, not more expensive. That will be of some consolation to my noble friend.
My Lords, I support what my noble friend Lord Cope said. It is enormously important that we do not get ourselves into the reverse position of that on flood defences--where people campaign to have the Government spend millions of pounds on defending properties worth a few tens of thousands because they are not required to make any contribution to saving their homes. The situation is to some extent reversed, although it is much better now than it was under the Bill as originally drafted, whereby the contributions required from industry could have been out of all proportion to those asked for from the Government.
It is important that the Government pay their fair share of the cost. It is important, however, that industry should pay something. The idea of people being able to charge the police for helping the police with their inquiries is undesirable. But we need to see the Government making a fair and, in concept, at least an equal contribution to the costs. That will keep the Government honest in terms of what they are asking for. I very much hope that the noble Lord will be able to give us that comfort.
My Lords, the noble Lord, Lord Lucas, has almost made my argument for me, and I am grateful to him.
A number of valuable and valid points have been made in this brief exchange. I shall try to give such comfort as I can. We believe that the regulatory impact assessment figure of £20 million which we made plain last week is the best possible estimate in the circumstances. It can only be that. But spending up to that figure is in the gift of the agencies involved in carrying out the work. In a sense, how much they require must be their decision. That will obviously affect the amount of money spent.
As I said, we believe that £20 million is the best estimate in the circumstances, and there is a degree of reassurance in that. I do not always think that we get it absolutely right, but we believe that that is the figure that we need to pay in these circumstances and that it is fair. Although we do not have a precise mechanism to determine "fairness" in each and every case, the fact that our approach is on a case-by-case basis in terms of the individual circumstances of the service provider means that we shall endeavour to operate the regime as fairly as we possibly can. A number of points have been made, but they all come back to the issue of what "fairness" will mean in each circumstance. We shall have to see how the regime works out.
The noble Lord, Lord Lucas, was right to say that it will come down to ensuring that people pay a reasonable price in the circumstances. We believe that we have got it right, but we shall continue to listen to those who make representations to us. We now have a mechanism for achieving that objective.
In the early stages of the debate there was--I shall not say a degree of hysteria, but certainly overblown concern about the costs. We have tried to keep a sense of proportion and we believe that, on balance, we have got it about right. The £20 million will work for a three-year period. During that time we shall have further opportunity to reflect carefully on how the system is working. We do not want to put UK companies at a competitive disadvantage. The noble Lord, Lord Cope, was right to raise that issue. For that reason, the smaller companies will be given rather greater assistance. Clearly, we do not want to do anything that stifles their growth and activity at the outset. We shall take very careful account of matters such as the planning costs of smaller companies, which I am aware is an important issue.
I am grateful to all noble Lords who have made constructive comments. I am aware that there is a great deal of concern about this issue. I believe that we were right to bring fairness into the legislation and to qualify it in a sensible way. I congratulate those who have played a part. I hope that we can now agree these amendments and carefully monitor the operation of the arrangements to ensure that they work in the best interests of industry. In this way we can guarantee the security of the system and combine fairness with a sense of proportion so that in future this part of the legislation works for the benefit of everyone.
moved Amendments Nos. 9 and 10:
Page 16, line 43, at end insert-
("( ) For the purpose of complying with his duty under this section, the Secretary of State may make arrangements for payments to be made out of money provided by Parliament.").
Page 16, line 44, leave out subsection (3).
On Question, amendments agreed to.
Clause 16 [Extra safeguards in the case of certificated warrants]:
My Lords, Amendment No. 11 harks back to Amendment No. 22 which I moved, at inordinate length, on Report on 12th July at cols. 317 to 320. In response, the noble Lord, Lord Bassam, spoke at appropriate, not inordinate, length, at cols. 322 to 324. It would be a form of cruel punishment to go through all the issues again. None the less, I shall not be deterred from trying one last time to clarify, for those who must hereafter understand this piece of legislation, exactly what this clause, and the provisions which lock into it, provide in relation to trawled, or indiscriminate, as some would call it, interception of communications. I make no apology for that. We are told by all concerned beyond these walls that these parts of the Bill are of particular concern and potential importance to the industry and ordinary citizens so-called.
When I spoke at Report stage the noble Lord, Lord Bassam, kindly said that he would read Hansard, consider the various questions that I raised and come back to me. I fondly looked forward to discussions with the noble Lord and his officials. That did not take place very long ago. Unfortunately, in the interim I have been abroad and, therefore, there has been no discussion or correspondence.
My Lords, I am to answer for the Government today on this issue. It is a shame that the noble Lord has been unable to take advantage of the offer made by my noble friend to facilitate further discussions and briefings on these matters. I am aware that the noble Lord, Lord Cope, took advantage of that opportunity which was also available to the noble Lord, Lord Phillips of Sudbury, and his party. It is a minor shame that the noble Lord and the noble Lord, Lord McNally, were unable to take advantage of that offer. I hope that when I come to explain the Government's position all will be put right.
My Lords, with respect I thought that that was precisely what I had said. To continue, I shall be grateful if when the noble Lord, Lord Bach, responds he is able to confirm that trawled interception of communications can be lawful only if, first, it takes place subject to a Clause 8(4) certificated warrant, and, secondly, that it can apply only to external communications. If one reads Hansard one sees that at the previous stage the noble Lord, Lord Bassam, said that it was still the Government's intention that Clause 8(4) warrants should be aimed at external communications. There was a scintilla of doubt put into my mind by that formulation.
This matter harks back to the problem of overlapping warrants and the informal regime that has grown up hitherto. I seek reassurance in the clearest possible terms that the regime of overlapping warrants does not, and cannot, allow trawling and the utilisation of the material trawled in relation to internal communications.
I make one further plea to the Government. Is it possible that in dealing with these very difficult clauses, with the interlocking parts of the Bill which are necessarily brought in by reference, the Government can develop an extra-statutory protocol with the interception of communications commissioner in order to agree just how a mixed catch of internal and external communications is to be handled in practical terms? I am still mystified by the fact that Clause 16 (Clause 15 at Report stage), which is concerned with extra safeguards in the case of certificated warrants, provides that,
"the requirements of this section ... are that the intercepted material is read, looked at or listened to by the persons"-- no definition of "persons" is provided--
"to whom it becomes available by virtue of the warrant", and so on. How can one know which are the internal and which are the external communications--the sheep and the goats--without reading, listening to or looking at the same?
My first point in relation to the notion of an extra-statutory protocol is that it may cover precisely how the interception of communications commissioner or his staff sit alongside the staff at GCHQ, or wherever, and engage in the business of sorting the sheep from the goats to ascertain, as far as is humanly possible, that the provisions of Clause 16(1) are complied with; namely, that such communications are looked at, listened to or read to the minimum extent necessary to decide which manner of beast they are. Secondly, there should be a regime of destruction of the material that is trawled which is not external. I believe that if that was the case a good number of noble Lords on this side of the House, on the Government Benches--this is not a partisan issue--and many outside this place would be greatly relieved. I shall be grateful if, when the Minister replies, he will consider that suggestion. I beg to move.
My Lords, the noble Lord, Lord Bach, raised the question of whether or not we should have engaged in private briefings. The Government have been extremely generous and helpful in the progress of this Bill. However, we should not fall into the trap of believing that private briefings, however reassuring, are a substitute for provisions on the face of the Bill or words spoken from the Dispatch Box. I see the noble Lord nodding assent. Sometimes I worry, particularly in the world of spookery, that parliamentarians and politicians become intimidated, perhaps dazzled, by the intelligence world. Sometimes they are beguiled by the luxury of knowing something that the rest of us are not privileged to know, but if only we knew it we would understand why it was being done. In dealing with the intelligence community and its activities Parliament should always resist that tendency and retain a healthy scepticism in these matters.
Therefore my question is simple and innocent. It has been a recurring theme throughout the Bill. Are we seeing here an extension of the powers of the security services or simply an update of the powers of previous legislation? I have never been quite clear about that. If it is an extension it may be entirely justifiable. If so, it should be justified and should not masquerade as simply an update.
My Lords, I am grateful for the contributions of the two Front Bench spokesmen from the Liberal Democrat Party. The noble Lord, Lord McNally, is right: there should always be some separation between the role of Parliament and briefings. It is fair to say that in some cases briefings are more important than others. I suspect that this instance may be one of them. No criticism is implied. Sometimes these meetings cannot take place; sometimes they can. I rather wish that in this instance it had. I think that I can go some way towards satisfying the noble Lords' concerns about this part of the Bill.
The provisions in Section 3(3) of the Interception of Communications Act, which are taken forward in this Bill as Clause 16(3), provide an important weapon for the law enforcement and security agencies. They allow for interception of external messages to or from a named individual in the British Islands, under the specific authority of the Secretary of State. The Secretary of State must consider that the interception is necessary and proportionate to the objects it seeks to achieve, just as he would if he signed an ordinary Clause 8(1) warrant in respect of that individual.
Why is this separate power provided? It is in fact less intrusive than a Clause 8(1) warrant. A warrant under Clause 8(1) would allow interception of all communications to or from a subject. In most cases the majority of these communications would be with other persons in the British Islands, and so would qualify as internal communications. But a certificate under Clause 15(3) refers to a warrant under Clause 8(4), the target of which can only be external communications. Therefore, a Clause 8(1) warrant will allow the interception of all my communications; but a Clause 8(4) warrant--that is what we are discussing in the amendment--with exactly the same safeguards in place will only allow the interception of my external communications, for example my international communications. It is not as intrusive as a Clause 8(1) warrant.
In some cases the external communications are all that is needed, and so there is no justification for obtaining the more intrusive Clause 8(1) warrant. The noble Lord, Lord Phillips, has been full of examples during the passage of the Bill, sometimes using Christian names very similar to those of some noble Lords on this side of the House. However, I shall not fall into that trap but I shall give an example.
Criminals in foreign countries often target victims in the UK, in an attempt to defraud them of large sums of money. The criminals communicate with their victims and take forward the fraud by various means, including telephone calls, faxes and e-mail. It is not practical to select these messages by reference to the foreign end, as the criminals take care to use a wide variety of telephone boxes, public fax machines and Internet cafes to hide their tracks. The best way to combat such a fraud will often be to select by reference to the victim's address, wholly innocent as that victim is. There would be no justification for intercepting the whole of the victim's internal communications; but to intercept only the external communications might be a proportionate and effective response. In such a case, the noble Lord's amendment would force the authorities to seek an unnecessary and excessive warrant--a Clause 8(1) warrant. This cannot be right. Using a Clause 8(4) warrant would be less intrusive than a Clause 8(1) warrant.
Why are we removing a safeguard, as it is perceived, that exists in the current Interception of Communications Act? I believe that this is the background to noble Lords' questions. We argue that we are not. The Bill in fact provides a more comprehensive set of rules than the current Act on when communications to or from targets in this country can be looked at under a certificated warrant. First, as I have said, no factor referable to an individual known to be in the British Islands can be used to determine what is "read, looked at or listened to" except with the Secretary of State's personal authority. This is, in terms of safeguards, as good as a warrant; and like a warrant, the permission is limited to three months.
So not only is there an inhibition on what goes into the certificate; there is also a direct connection between what is in the certificate and what may be looked at. This is a connection which is made explicit for the first time. In other words, what is on the certificate is all that can be looked at. It is not present in the 1985 Act. It offers a legal guarantee that external warrants will not be used to target individuals in this country except in the circumstances I have described.
These provisions are indeed complicated. I am attempting to assure the noble Lord that the safeguards attached to the system are as robust as under the current Act--in some respects more so. The interception commissioners have in the past been careful and diligent to ensure that these provisions are properly followed. It almost goes without saying that we are confident, and the House can be confident, that the new commissioner will confirm this scrutiny.
I hope that my remarks go some way towards relieving the noble Lord's concerns about this part of the Bill.
My Lords, perhaps the Minister can clear my mind about what seems an important issue. Is it not true that the Echelon network can already intercept any telephone call and any e-mail anywhere in the globe from satellite interception? If so, are not some of the warrants somewhat irrelevant?
My Lords, I do not know the answer to the noble Lord's question. Even if I did, I am not sure that I would think it proper to answer his question today. These are matters of important concern. It is necessary to be careful in what one says from this Dispatch Box and anywhere in this House on matters of this kind. If the noble Lord would like an answer to his question, I shall be happy to give it at some future time.
My Lords, perhaps I may say from my experience as commissioner that I see nothing dangerous or objectionable in the proposed new clause. The degree of coverage of external communications appears to be no wider than it has ever been, but more precisely spelt out. The effect of the amendment proposed by the noble Lords, Lord McNally and Lord Phillips, would unduly narrow the scope of what can be intercepted and would, indeed, be against the public interest.
My Lords, I am grateful for the Minister's comments. His practical illustration was easier to follow than some of the explanations given hitherto and I suspect that it shed more light on one aspect of the Bill. That is not a criticism, but I wonder whether when we are faced with such difficult and dense Bills it would help those on non-government Benches to have worked-through illustrations. They would make the whole task more approachable.
I am grateful for the Minister's explanation. I shall read Hansard carefully because I am not sure that I picked up every point that was made. The Minister did not refer to my final point about the practical illogicality of not reading and listening in order to sort the sheep from the goats and the prospect of an additional statutory protocol agreed between the Government and the interception of communications commissioner in order to verify this aspect of the workings of the Bill. It is important and we all understand that someone must look at the material in order to decide what is internal and what is external and must then forget all that is internal. Could that form a clear procedure? That would give great reassurance beyond these walls. In the mean time, I beg leave to withdraw the amendment.
moved Amendment No. 13:
Page 27, line 9, at end insert-
("(5A) Where the communications data in whole or in part comprises data as defined in section 21(4)(a), the designated person shall first obtain a certificate from-
(b) any sheriff;
(c) any justice of the peace;
(d) any resident magistrate in Northern Ireland; or
(e) any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge of the Crown Court or of a justice of the peace, stating that access to the communications data is necessary and proportionate having regard to the sworn statement of the designated person as to the circumstances of the matter.
(5B) If the designated person reasonably believes that the special circumstances of the case are such that obtaining a certificate under subsection (5A) would cause an unacceptable delay to the issuing of a notice or authorisation under this section, the designated person may issue such notice or authorisation without obtaining a certificate but must then make a prompt report to the Interception of Communications Commissioner as to the circumstances of the matter.").
My Lords, the main purpose of Amendment No. 13 is to discuss again the level of authorisation appropriate to access communications data. I do not lay any store by the drafting of the amendment--I am sure that the Minister will be able to have fun with it, but that is not the purpose. If we manage to convince the Government that something must be done, I am sure that he will be able to produce a better version than mine.
I should like the Minister to cover two issues in his reply. First, I should like to be sure that we are ad idem on the practical extent of communications data, in particular traffic data. Secondly, I should like to understand what practical safeguards exist, not in a particular instance but over the long term, for ensuring that the wide range of the data is not misused in practice by the law enforcement authorities.
Perhaps like the noble Lord, Lord Bach, I may give an example. Let us examine the putative investigation of the recent leaks from No. 10. I understand that under the definition of "communications data", and under the power which the Bill gives to the authorities, a police superintendent could decide that he wanted to acquire a list of telephone numbers used by everyone in receipt of the memoranda and associated with the newspaper which printed them. On the basis of the communications data, consisting of the telephone bill or the equivalent used in tracking e-mail data, he could accurately match up the two sets of people to see where there had been communication between them. He could not tell the content of the communication but he could tell that communication had occurred.
Using the location data which will be inherent in the next generation of mobile telephones, he could track anyone he suspected of colluding with the other party. Provided that the two parties had their mobile telephones turned on, he could track them in real time, watch where they went and, if they came within 10 yards of each other, he could know how long they spent there. That is a complete set of data for cracking a crime.
I suspect that the level of authorisation required for delving so far into people's lives should not be left with a police superintendent. As regards, in particular, location data and the details of communications, the authorisation should come from someone at a higher level. We are aware of the use made of telephone bills, but they should not be used casually in respect of minor crime or suspicion. We used to think of them as being used in connection with murder and serious crimes, but we must be careful about the ability we give the average policeman to pry into individual lives. The relationship between the police and their community is important. We must feel that they are, if not our servants, co-operating with us and working on a level with us. If we give them powers over the intimacies of our daily lives and they use them in a way that is uncomfortable to us, there will rapidly be a breakdown in the relationship between the Government and the police. We must be careful about that.
That brings me to the second issue which I hope the Minister will address. How will we become aware of abuses of the system, if they exist? We are all aware that there are abuses of the current system and the Bill is intended to deal with them. It is said that individual officers have used their ability to pick up people's telephone bills and see who has been telephoning whom in order to keep track of their girlfriends. There is nothing in the current system to stop that.
How shall we become aware of abuses if they happen? Who will be looking after the system for us and who will raise their hands and say, "No, this is happening too much and in the wrong way and we ought to do something about it"? I look forward to illumination from the Minister. I beg to move.
My Lords, the noble Lord has given us a timely reminder of the need to police by consent. Those are wise words. Given the intrusive nature of surveillance, they are well chosen words.
I am sure that the House is aware that the noble Lord and I discussed an almost identical amendment on Report. However, this amendment is different in that the noble Lord seeks to limit his request for judicial authorisation to subsection (4)(a) rather than to paragraphs (a) and (b) of subsection (4), as previously requested. Clearly, on Report my powers of persuasion were limited and insufficient for the task set by the noble Lord. I did not then entirely satisfy or meet the intention behind the amendment, but I trust that I shall have more success today.
At that stage, the noble Lord's main concern appeared to lie with the level of authorisation and I shall try to address that issue particularly as it pertains to the more intrusive communications data. As I explained, under the non-statutory arrangements agreed between the law enforcement agencies and the telecommunications industry, access to more intrusive types of communications data is authorised at a more senior level within the relevant agency. For example, the most intrusive communications data must be authorised by an assistant chief constable--a very senior level in the police service. More importantly, I can again assure the noble Lord that we intend to insist on higher level authorisations for intrusive data in an order which we shall make under Clause 25(3) and which will be set out in the codes of practice.
It should also be remembered that the Bill introduces the necessary and proportionate requirements, along with the new statutory provisions which provide independent oversight by the interception commissioner. I hope that that oversight by the commissioner's office in the annual report, where the audit team will examine the use made of the power, will offer the noble Lord a degree of comfort with regard to the accountability process. The scope for abuse, which, rightly I believe, is behind the amendment, is the issue on which we need to satisfy not only the noble Lord but others.
I accept that it is not only the level of authorisation which the noble Lord is concerned about; he is also concerned about what that higher level of authorisation should be. However, I am not entirely persuaded of the necessity of calling for a higher level of judicial authorisation. We suggest that access to communications data, even at the top end of the scale, is not more intrusive than directed surveillance--a point that I made before--or the use of covert human intelligence sources as set out in Part II of the Bill.
Quite rightly in our view, those Part II provisions have been approved by both Houses of Parliament without the introduction of judicial authorisation for that type of activity. Instead, the Bill provides for directed surveillance or the use of covert sources of intelligence to be authorised at a specified level within a designated public authority. I would argue that accessing communications data is comparable. Therefore, I see no strong reason why the internal authorisation procedures for accessing them, with the restrictions and oversight provisions that we have already set out, should be any different.
We both agree that there should be different levels of authorisation for the different levels of communications data requested. I believe that we differ only on whether to involve the judiciary in the authorisation procedure.
I hope that I have provided sufficient reasons as to why the Government are not persuaded that it is necessary to go down this route. I believe that the accountability provided by the commissioner's office, the level of authorisation and the seriousness with which we view it, and the important tests of reasonableness and proportionality should offer sufficient satisfaction and confidence in this particular part of the regime. I trust that on the basis of what I have said, the noble Lord will feel able to withdraw his amendment.
My Lords, I am grateful for that explanation. I believe that we shall have to wait to see how the matter develops in practice. When the commissioner examines how the power is being used, I hope that he will report to us in sufficient detail so that we may see and understand what is being done. I hope that we shall be able to see from his report that, in particular, location data on mobile phones is used either extremely infrequently or frequently so that we may know whether it is an occasional practice authorised at a very high level or a regular practice due to the fact that it is such a good method of obtaining information in many types of ordinary cases. I believe that if it is the latter, we should examine this area again.
I hope that I can rely on my understanding of what the Minister said with regard to the commissioner; that is, that when he reports he will provide us with sufficient information so that we may know that that is what is happening. However, I beg leave to withdraw the amendment.
moved Amendment No. 14:
Page 54, line 31, leave out from beginning to ("performance") in line 32 and insert ("necessary for the purpose of securing the effective exercise or proper").
My Lords, this should be a fairly short debate. The amendment fills out an undertaking we gave on Report. I believe that on Report the noble Lord, Lord McNally, proposed an amendment to raise the test for serving a disclosure notice in what is now Clause 49(2)(b)(ii). I said that I would take the matter away and return with our own change in time for today. This amendment is the fruit of that activity.
I trust that the amendment will be welcomed. It is important that the Bill covers all statutory powers which conceivably may be affected by the use of encryption. However, we are aware that the current test in Clause 49(2)(b)(ii) was regarded by some as being rather too loose. I am sure that that concern was behind the noble Lord's amendment. We propose to tighten the test substantially by introducing a necessity requirement. That would mean that notices could be served only under Clause 49(2)(b)(ii) where it was believed to be necessary for the purpose of securing the effective exercise or proper performance by a public authority. I hope that the amendment will be supported. I beg to move.
My Lords, I believe that the use of the word "necessary" in this particular sub-paragraph is preferable to the words "likely to be of value" which were used previously. It brings it into line with some of the other clauses, including Clause 49(2)(b)(i) and the others related to it. I believe that it is a helpful improvement to the Bill.
moved Amendment No. 15:
Page 55, leave out line 6 and insert-
("( ) must describe the protected information to which the notice relates in sufficient detail to enable all those keys which would satisfy the requirements of section 50(3) and (6) to be identified;
( ) must, except where the notice includes a direction pursuant to section 50(3)(c), provide arrangements for the protected information to be delivered to the recipient in the event that-
(i) it is not already in his possession, or
(ii) it is only likely to come into the possession of any person or service in accordance with some paragraph of subsection (1);").
My Lords, in conformity with the spirit of co-operation that now exists in the House, I have copied the Government and the Liberal Democrat Front Benches with the briefing note constructed for me on this and, indeed, two other amendments by the redoubtable Dr Charles Lindsey of Manchester University. Therefore, on this occasion, the purpose and intention of my amendment will be lucidly clear. Due to my inadequacies, I am afraid that on previous occasions that has perhaps not always been the case.
This amendment attacks two related problems. First, currently Clause 49(4) does not explain how the noticee is to identify the required key where he does not have the protected information to hand. He is likely to have a number of keys which he has used on protected information. I believe that it is an important concession, made in the course of the passage of this Bill, that the person who is to release his key has the right to provide a session key if he so chooses. In doing so, he is not in any way breaching his security and he is providing the police, or whoever, with absolute evidence of the correct translation of the protected information.
However, in order to be able to deduce which session key he needs to provide, it will be necessary for him to be provided with information by the police or whoever holds the protected information. The first purpose of the amendment is to ensure that he has the right to receive that information so that he can disclose the correct key; otherwise, by not releasing that information, it would be possible for the police to make him divulge all his keys, and I believe that that would be an extremely undesirable state of play.
On Report, the Minister said that in some cases it would be improper for the Government to give the noticee the protected information. I cannot think of many cases in which that would be true. If the message is encrypted with his key, it must have been intended for his eyes. It would be inappropriate only if the police thought that they did not have all the information and did not want to disclose to the noticee how little they had and were able decrypt.
The amendment would bring that exceptional scenario--in which the police were reluctant to give any information to the key holder that would enable him to divulge the session key or produce the plain text--within the ambit of Clause 51, which provides all the protections that the Minister has graciously given us. Without the amendment, the police would be able to escape from all the new protections in Clause 51 by failing to provide the protected information or sufficient details to enable someone to disclose the right key, thereby forcing them to hand over all the keys without the need for any authorisation at chief of police level or notification to the commissioner.
I find this a difficult and technical concept, but I am sure that, having had sight of my briefing note for a while, the Minister and his advisers will have a better understanding of what I am after.
My final point is the fundamental one. There should not be a way of forcing someone to divulge their key other than under the protections that are available--and, if we pass the necessary amendments, will be available--under Clause 51. I beg to move.
My Lords, the aim of the first part of the amendment is already implicit in the Bill. Clause 49(4)(b) requires that disclosure notices must describe the protected information to which the notice relates and Clause 49(4)(f) requires that they must set out the disclosure required and the form and manner in which it is to be made. We are not sure that there is a need for the universal requirement suggested by the amendment. If the disclosure of plain text was required from a legitimate organisation, for example, the amendment would be redundant. The requirements set out in paragraphs (a) to (g) of Clause 49(4) set out what all notices must include. They are not optional requirements.
I think that I understand the concern behind the first part of the amendment tabled by the noble Lord, Lord Lucas. He may be worried that persons could be forced to hand over a master key rather than, say, a session key because the authority serving the notice provided insufficient information. Clearly, a notice must contain enough detail to enable the person served with it to know exactly what is being asked of him or her. That is also in the authorities' best interests.
We are addressing that in the code of practice. We have already set out a first stab at what a disclosure notice might look like in the initial draft code that we published last week. As your Lordships will have seen, we suggest, for example, that the notice makes it clear that where the disclosure of keys is required, or where someone does not have the relevant plain text in their possession, they have the flexibility to disclose any key of their choosing that carries out the necessary decryption. To do that, they will clearly need to know to what information the notice relates. That is properly a matter best left for the code of practice.
The second part of the amendment covers similar ground. We discussed a similar amendment on Report, moved by the noble Lord, Lord Phillips of Sudbury. In this case, if a recipient of a Section 49 notice did not have the relevant protected information in his or her possession and there was no direction in the notice requiring that a key be disclosed, the person with permission to serve the notice would be required to deliver all that information to the recipient to allow him or her to decrypt it or disclose any key of his or her choosing that would decode it.
We cannot accept the amendment. As I said on Report, we recognise that there may be cases in which the recipient of a notice does not have the relevant protected information in their current possession, but has a relevant key. In such cases, providing the relevant protected information to a person may well be sensible, practical and right. There is no statutory bar to giving access to the information. However, there may be other cases in which it is not right to do that, such as when notices are to be served on persons suspected of criminality. That would make no sense. We do not believe it right that people should be supplied with the relevant protected information in all cases.
When the noble Lord, Lord Phillips of Sudbury, moved a similar amendment on Report, he wondered whether someone served with a disclosure notice who was not in possession of the relevant protected information at that time could be penalised unjustly under the Part III powers. I think that he described it as the "Willie and Steve" scenario. The short answer is "No". We recognise that the recipient of a disclosure notice will not always have the relevant protected information in their possession. In the scenario painted so ably by the noble Lord, Lord Phillips, it is entirely possible that someone may have received a message, decrypted it and destroyed it. They cannot be penalised for that. By virtue of Clause 50, they may disclose a key. If the circumstances are right, it may be possible for them to be given the protected information.
As I said on Report, we do not believe it right to include a blanket provision that a person serving a notice must in all cases provide the recipient of a notice with all the relevant protected information that they do not possess. That would be the effect of the amendment. In some cases that will be appropriate, but in others it will not. The issue is best dealt with in the code of practice. As I said on Report, we shall take away the comments of your Lordships and other interested parties and try to reflect them in fleshing out the details of the code on this point.
I hope that that will give the noble Lord some comfort and that he will feel more than able to withdraw the amendment.
My Lords, before the Minister sits down, will he answer the last point that I put to him? Am I right in thinking that, under the current wording of the Bill, if, for what everybody considers perfectly good reasons, a person is not provided with the protected information and is in effect required to hand over keys, he does not enjoy the protection of Clause 51, as he would if there was simply a direct request for the keys? If the police say, "We have some protected information and we require you to provide the plain text, so give us your keys", he has no protection, whereas if they just say, "We want your keys", he has protection. If that is the case, it is very undesirable, because the police will take the easy route. Rather than going to the chief of police to get permission to have the keys, they will just not produce the protected information, so that they can get the keys with a much lower level of authorisation.
My Lords, I understand the noble Lord's concern. He is probably correct that there is no statutory power. We shall need to examine the issues on a case-by-case basis. The law enforcement agencies will have to approach the issue carefully. We shall take careful note of the noble Lord's comments and give careful consideration to the phraseology in the code of practice, because we can offer more comfort there than we can on the face of the Bill.
My Lords, I am grateful to the noble Lord for that reply. I am happy with what he said about the code of practice, and that being the right place to do things, for the first part of this amendment. He is obviously of the opinion that in principle the Bill covers everything which needs to be covered, and that issues can be fleshed out and dealt with in detail in the code of practice.
But, as we come to this part of the Bill, we are placing a great deal of reliance on the amendments which the Government made on Report, in what is now Clause 51, and on the amendments which are to be made to it today. If the amendments are accepted, people can have confidence that their keys will not be divulged on a whim. A very high level of authorisation will be required. Reference must be made to the commissioner, who is an independent member of the judiciary, and that will be done promptly. That is an environment in which people can feel relatively safe and can be sure that things are done well.
There is then apparently a great hole in the Bill where there are no safeguards or authorisations. All that has to happen is that the police have a piece of protected information that the "noticee" no longer has and they can open up his key box with hardly a "by your leave".
The amendment as it is now is not perfect, but unless this amendment is passed now the Government will not have the opportunity to set this matter right in another place. I am sure the Government do not intend that there should be this great hole in the Bill as it stands.
No discourtesy is intended to the noble Lord in pressing this amendment. He has done a great deal to improve this Bill as it is, but it has been done in a great rush. It seems to me that here is a major hole in the reassurances which the noble Lord has been providing, and which we have all been seeking. In respect of everything else that they have done, I seek to give the Government a little more time to consider whether something should be done to ensure that all of us, in particular major businesses, can feel entirely comfortable that our keys are safe in practice. I commend the amendment to the House.
moved Amendment No. 16:
Page 55, line 18, at end insert-
("and the time specified for the purposes of paragraph (f) must allow a period for compliance which is reasonable in all the circumstances.").
My Lords, I am sure that this amendment will be as uncontroversial as the previous amendment. The noble Earl, Lord Northesk, tabled a similar amendment at Report stage, which I accepted in principle. I undertook to bring back our own amendment which is the result of that further consideration.
We said previously that, in practice, notices will set out a reasonable time for compliance. This amendment puts that requirement on the face of the Bill. What constitutes a "reasonable" time will, of course, vary from case to case. It is for the person giving permission for a Section 49 notice to be served properly to weigh up, having given the matter very careful thought. We have set out in the initial draft code of practice that any timing considerations will need to be fully justified. The code will be fleshed out, as I said earlier, when we receive further comments from interested parties.
There is a safeguard against unreasonable demands being made in Clause 53(4)(a), which provides a statutory defence to the offence of failure to comply where it was not reasonably practicable to do so in the time required by the terms of the notice. Given that this amendment was originally inspired by noble Lords opposite, I am sure that it will be welcomed by your Lordships' House. I beg to move.
My Lords, in moving this amendment I shall speak also to Amendments Nos. 29 to 33 and Amendment No. 35. We debated at Report stage legal privilege and its protection. At the time the Minister indicated that the Bill would not detract from the position of legal privilege in the area of admissibility of evidence. The common law would apply. We accept that that may offer some protection in the arena of the courtroom. However, it does not address the issue of access to material which is subject to legal privilege.
Since the Minister's reply, we have had time to study the Data Protection Act, referred to by my noble and learned friend Lord Fraser of Carmyllie, and Section 18 of the Proceeds of Crime (Scotland) Act 1995. They recognise the importance of confidentiality in the solicitor-client relationship. Such communication should be privileged at all stages in the legal process. Provision is made on the face of the legislation to the effect that access will not be given to material which is subject to legal privilege.
If it is deemed appropriate to recognise the common law in this way in these two Acts, it is difficult to envisage why similar safeguards should not be incorporated in the present Bill. At Report stage the Minister correctly identified the protections available under the Police and Criminal Evidence Act 1984. I am advised that that Act does not extend to Scotland. Therefore, there is concern that the Minister's comments do not sufficiently take account of the Scottish situation.
That brings me to the amendments which I have tabled and which largely concern Scotland. Amendment No. 17 provides that there should be no right to require the disclosure of items subject to legal privilege under Clause 49. As the Minister knows, Article 8 of the European Convention on Human Rights enshrines the right to privacy. The law is there to protect the relationship between solicitor and client and has made provision for the doctrine of legal professional privilege. To preserve that relationship and ensure that communications are privileged, provision should be made on the face of the Bill to the effect that a notice under Clause 49 will not extend to the disclosure of information subject to legal privilege.
Amendment No. 29 extends the defences which will be available to persons failing to comply with a notice to take account of the doctrine of legal privilege. We believe that the Bill should make available a defence which takes account of the doctrine of legal privilege in circumstances where a legal adviser fails to comply with a notice.
Amendment No. 30 concerns medical confidentiality. I understand that the BMA is concerned about patient confidentiality, particularly as the NHS net will be an Internet service provider within the terms of the proposed legislation. That will place particular and specific duties on those responsible for the NHS net. The BMA is particularly concerned about the implication of these duties on the handling of confidential, named patient data. I understand that some of that is to be covered in a code of practice. But perhaps the Minister can help us as to aspects of confidentiality in the patient-doctor relationship and explain how it is to be protected by the code of practice.
The next amendment deals with the offence provisions in relation to tipping off and their application to professional legal advisers. The amendment inserts a new subsection reflecting the provisions currently contained within the Terrorism Bill which we believe affords an adequate protection for the concept of legal professional privilege.
Amendment No. 32 is concerned also with the tipping-off provisions in Clause 54 so that they do not extend to the disclosure of information subject to legal privilege. That is acknowledged in other legislation which incorporates tipping-off provisions.
Amendment No. 33 seeks to clarify situations in which information is deemed to have been obtained by a legal adviser in privileged circumstances. There has been debate about situations in which information will be considered to have been obtained in privileged circumstances. Clause 54 presently provides the circumstances in which legal privilege cannot be used as a defence to an allegation of failure to comply with a notice requiring disclosure. The exception to the general rule of legal privilege exists in situations where information comes to the adviser with a view to furthering a criminal purpose. The phrase,
"otherwise than with a view to furthering a criminal purpose", has been the subject of consideration by the courts. It is unclear who must have knowledge of the criminal purpose.
The Law Society of Scotland has advised me that legal professional privilege could not be claimed in situations where the adviser himself was in possession of the information with the intention of furthering the criminal purpose. However, if the adviser had no knowledge of the criminal purpose, the doctrine could still apply.
So the proposed amendment adopts the definition of legal professional privilege contained in Section 33 of the Criminal Law (Consolidation) (Scotland) Act 1995. We believe that it is helpful to have similar statutory definitions of the concept of legal professional privilege and the amendment seeks to produce a harmony between those provisions.
The last amendment in the group provides a definition of the term "professional legal adviser" so that it is given on the face of the Bill to avoid any ambiguity as to what is meant by that term and when the doctrine of legal professional privilege can be invoked. It is necessary also to take account of the directive 98/5/EC--the EU Lawyers Establishment Directive--when framing this definition.
At an earlier stage, my noble and learned friend Lord Fraser of Carmyllie raised issues about the Data Protection Act 1984. The Minister said on a previous occasion that the common law is clear cut. If so, why was it necessary to include Section 31(2) in the Data Protection Act?
The Minister said that he believed that there are adequate safeguards for the legally protected material and referred to the code of practice. Of course, a code of practice is just that. That is all it is. It is there for guidance--nothing more. Account must be taken of it, but it is not the same as having a provision on the face of the Bill, whether by primary legislation or by order.
The Minister offered to write to my noble and learned friend Lord Fraser of Carmyllie. I realise that, in the short time that has been available in our rather hurried Session before we all go on holiday, that has not been possible. Therefore, it is important that the Government should answer the queries which my noble and learned friend and I have raised. I beg to move.
My Lords, we enjoyed several short debates on Report on the protection due to legally privileged material. Our position now is the same as it was then: some of these amendments are unnecessary because the protection they seek is already in the Bill; and other amendments seek to do things which we believe can be done more precisely in the code of practice and with more consultation. But I welcome the opportunity shortly to restate our position on this important subject.
First, we recognise the important status of communications between lawyer and client. Those communications need proper protection, not absolute protection because of the risk, in any sector and any profession, of abuse, but robust protection none the less.
Perhaps I may expand on that. Our starting position is that legal communications should not, in the normal course of law enforcement, be the subject of targeting by police and other agencies. But that is not all. It is also important that police and others are aware of the situations where they may come across legal communications inadvertently and know how to deal with those cases too.
Amendments Nos. 17, 29, 30 and 32 relate to no obligation to disclose legally/medically privileged material. Amendments Nos. 29 and 30 would ensure that a key cannot be required if its disclosure means a lawyer or doctor giving access to legally or medically privileged material. We agree with the sentiment. But we do not think the amendments are quite right, and we do not believe they are necessary. They are not right because they do not take into account the case where a key protects both privileged material and material of a quite different nature which is not privileged. In that case, and remembering that disclosure of a key is going to be unusual in any event, it may make more sense for the key to be disclosed but for law enforcement to be inhibited from looking at the privileged material.
The amendments are not necessary because nothing in the Bill reduces the protection given in law to privileged material. If it is protected from a disclosure requirement now, whether that is by virtue of English, Scots or Northern Ireland law, a notice under the Bill will not override that protection. The code of practice makes that clear. The Bill applies only to material that comes lawfully into the possession of law enforcement. In most circumstances, legally privileged material simply will not find itself in this position.
There is, of course, the question of exactly how far legally privileged material should be protected; for example, if there is no statutory bar on its being accessed by means of some other power, or where its status only becomes clear on decryption. As I said on Report, and repeat, we look forward to getting that question right in the codes of practice, in consultation with the professional bodies in all parts of the United Kingdom.
Amendments Nos. 17 and 32 are similar. Amendment No. 17 prohibits access to any legally privileged material. Amendment No. 32 focuses on the position of the lawyer confronted by a Section 49 notice. Again, we think they envisage a situation that for the most part simply will not exist. What is the underlying power that would enable the police to say to a lawyer, "Show us the communications you have had with your client"? If there is no such power, Part III of the Bill presents no danger to legal confidentiality.
We agree, however, that we need to get right both the procedure and the precise degree of protection for when a Section 49 notice does encroach on to legally privileged material, for whatever reason. We look forward to doing that, with help from others, in the code of practice.
Amendment No. 31 recrafts the protection given to professional legal advisers against the tipping-off offence. In principle, we do not disagree with the amendment. But we have looked at it closely and do not believe it adds anything to the Bill that is necessary. The amendment covers legal advice from the lawyer to the client or client's representative. So does the Bill, in Clause 54(6) and 54(7). The amendment covers advice in the context of actual or contemplated proceedings. So does the Bill. The amendment covers all other legal advice as well while the Bill at Clause 54(6) limits that to advice about the effect of Part III of the Bill. We believe the limitation in the Bill to be justified. A person served with a disclosure notice containing a secrecy requirement may well need legal advice on what the notice means and its consequences. The Bill allows for that, and the standard form of notice, which will be in the code of practice, will encourage him to seek legal advice.
Finally, the amendment appears to make the protection for legal advice an exception to the offence rather than a defence. Perhaps I may make two points. First, it is quite common for these provisions to be framed in terms of a defence. All the recent tipping-off offences do it in that way. We would find it difficult to accept an argument that that imposes a difficult or unjust burden on the legal adviser, remembering that the defence need only be established on a balance of probabilities, and that the facts supporting the defence are comfortably within the lawyer's reach. Secondly, we do not think that the amendment changes the position. That is because the general rule of law is that statutory exceptions to a criminal defence, available in special circumstances or by persons of specified classes or with special qualifications, are for the defence to prove.
Much of what I have had to say concerns the codes of practice. We are placing much emphasis on them. There is legislation in which some statutes explicitly protect legally privileged material. Here, the precise protection due to this material requires careful consideration. It cannot fall outside it altogether but it needs to be protected. We are convinced that our codes of practice are best placed to achieve that. Why do we say that? Codes of practice are, in effect, much more flexible than words that appear on the face of a statute. At present, we are negotiating with various organisations: legal, medical, spiritual and journalistic, to name but a few. The point is that safeguards must be specific and drafted in close consultation with representatives of those sections of those professions. We have started the process and had contact with representatives from all those organisations, including the BMA. We look forward to continuing the discussions so that we can put sufficient and appropriate safeguards in the code of practice.
The noble and learned Lord, Lord Fraser of Carmyllie, asked about PACE. He is right; PACE does not apply in Scotland. However, there are other common law protections given to legal material in Scotland. It is not for me to say whether such protections are better or worse than protections in England, nor, we would argue, a matter for the Bill. The key points are that the Bill does not subtract from legal protection given to legal material, whether such protection is statutory or non-statutory. The code of practice will say what should happen if, by virtue of these powers, law enforcement comes across legally privileged material. We repeat what we have often said: we intend the codes to provide tough safeguards against legal privilege being undermined.
We do not agree, should the argument be put forward, that codes of practice are somehow useless and not as good as having the words on the face of the statute. The codes to the Police and Criminal Evidence Act in England and Northern Ireland have done a great deal to regulate and govern police practice to the benefit of citizens.
Clause 72(1) imposes a legal duty on police officers and others, including in Scotland, to have regard to the codes of practice. Relevant provisions in codes of practice not only are, but must be, taken into account by courts when dealing with these matters. I repeat our willingness, indeed, our desire, to have full consultation on the codes of practice.
Amendment No. 35 adds a definition of "professional legal adviser". There is no definition in the Bill as presently drafted. We do not believe that one is necessary. There is no definition in other similar provisions creating tipping-off offences. However, we are confident that the term "professional legal adviser" covers all the things listed in Amendment No. 35.
The noble Lord asked a question about the National Health Service. He was good enough to give me advance warning of the point. At this stage it is impossible to say which Internet service providers will be subject to Clause 12 obligations. We have debated at considerable length how Clause 12 will work. Perhaps the best assurance I can give him is that the grounds for interception are extremely limited. Procedures for dealing with sensitive or privileged material will be addressed in the code of practice.
I am grateful to the noble Viscount for having tabled the amendments today and for a good debate. However, we do not believe that the amendments should be pressed.
My Lords, before the Minister sits down, perhaps I may ask a question. In the light of the importance of the consultation on these difficult issues--which are extremely difficult; particularly, I suggest, as regards foreign lawyers who will be much affected by the Bill--is it the normal pattern of consultation to have a meeting to discuss such issues? Given the complexity and the importance of the issues to be dealt with on this aspect of the consultation, I am sure that the Law Society and the Law Society of Scotland would desire such a meeting.
My Lords, I believe that consultations take place in different ways and at different times. However, I can see no objection to meetings between the organisations mentioned by the noble Lord and the Home Office. Indeed, I believe that such meetings would be helpful. I am grateful to the noble Lord.
My Lords, I am grateful to the Minister for his reply on various issues. As he stated, it is extremely important for full consultation to take place with such organisations as the BMA on the code of practice. Indeed, serious issues are raised concerning the National Health Service and its Internet service providers. It is crucial that the doctor/patient relationship is preserved. It is also crucial that any worries they have do not stop doctors using the Internet, which is of enormous value to them. It would be dangerous and bad for the National Health Service, and for doctors and patients if, as a result of concerns about the use of confidential material, they stopped using the Internet. That is a concern which I realise the Minister took on board. However, I hope that he will take it back to his colleagues in the Department of Health and that there will be full consultation.
I turn to the remarks made about Scottish law. I am standing in for my noble and learned friend Lord Fraser of Carmyllie. I have to admit to being half-Scottish. However, I should not dream of trying to become even half a lawyer. I am a pale shadow of my noble and learned friend. I am grateful for the remarks the Minister made on those amendments. I wish that I knew enough about Scottish law to come back to him on various points. However, I shall have to retire, thank him for his response and beg leave to withdraw the amendment.
My Lords, the noble Lord, Lord Lucas, proposed an amendment on Report which would have substituted "or" for "and" in what is now page 56, line 21. Some commentators have since returned to the subject, so we have given the matter further thought. We believe that the Bill can be clarified.
Where information is protected both by an obstacle to access, such as a password, and by encryption, it is right that the plain text requirement in Clause 50(1) should apply only where the person can overcome both obstacles. We remain of the view that the amendment tabled by the noble Lord on Report would not have worked. However, where there is a password and no decryption, it should be enough that the person has the password. The Bill implies that in all cases he must also have the means of putting the information into intelligible form. I suggest that that is misleading. In the case I have described, no such means are necessary.
The important thing is that the person must be able to achieve access to the information and be able to disclose it in intelligible form. The first amendment, I hope, makes that clear. If he can do those things, he need only disclose the plain text. We have been round this argument before, but that is primarily our objective. If he cannot do both those things, he must disclose the key. The second amendment, which operates on subsection (3), achieves that.
I hope that we have gone some way to achieving what the noble Lord, Lord Lucas, was seeking to achieve with his amendment and improved it. I beg to move.
moved Amendment No. 19:
Page 56, line 26, at end insert ("; and
(c) shall be required, where the notice so stipulates, to provide evidence, to the reasonable satisfaction of the person giving the notice, that the disclosure made truly represents the protected information in an intelligible form").
In moving Amendment No. 19 I shall speak also to Amendment No. 20. As with the previous amendment, I passed my briefing on these two amendments to the Minister, who will therefore understand that I am looking for a couple of ways to make it ever less likely that keys have to be divulged.
Amendment No. 19 makes it possible for the person requiring the plain text--the police officer--to demand proof that the plain text is the correct text. That means that, in circumstances where producing the key might be a severe embarrassment but the police have reason to be concerned that if they did not have the key they would not get the correct plain text, they have the option--it will be their option and, I suspect, that of the other person--of looking to a third party to provide the decryption or to some other form of evidence. That will reduce the number of occasions on which a key may be required. It does not seem to me, although the Minister may correct me, that at present the Bill contains the powers necessary to allow for that option.
Amendment No. 20 relates to occasions where there are several key holders to a specific piece of information. If that information was of particular value to a company, there might be half a dozen key holders of whom four or five are required to act together to open up the information. At the moment, if one of those key holders is served with a notice, he clearly cannot decrypt the information by himself and therefore has to surrender his key. If he was allowed to talk to his fellow key holders, then he would be in a position to decrypt the information without providing keys.
Again, I hope that the amendment is phrased in a way which will allow effective discretion to the police or whoever wants the information so that, in circumstances where such a procedure is inappropriate they will not have to follow it. But it will provide them with the means, the mechanism and the normal arrangements to ensure that, where it is at all possible for sufficient key holders to be brought together to provide the decryption, then that would be the preferred route. I beg to move.
My Lords, I seek only to emphasise what my noble friend Lord Lucas said. We are all keen to reduce the number of occasions on which keys are required for a variety of reasons which we have discussed on previous occasions. That is why Amendment No. 19 is desirable, or something along those lines. My only hesitation is that I am not sure that what is sought to be done by Amendment No. 19 cannot be achieved by a less formal means than changing the statute. Subject to that, an obligation to prove the correctness of the plain text may help in some cases.
My Lords, as the noble Lord will appreciate, this amendment takes us back to an earlier discussion. Again, I am grateful to the noble Lord, Lord Lucas, for his earlier suggestions. That is probably as far as I can go on Amendment No. 19, but I can be more encouraging on Amendment No. 20.
As we continue to state, where the authorities are dealing with an entirely legitimate organisation which is not, of itself, of security concern or suspected of involvement in any criminality, requiring the disclosure of the plain text--rather than a key--will be the norm. That is similar to what happens now when, for example, the police need to approach a bank for information stored electronically. They rely on the bank's integrity and, where necessary, use them as witnesses. We envisage the same sort of scenario over encrypted material. So when the authorities are dealing with a legitimate organisation it seems to us unnecessary to stipulate that evidence be obtained attesting to the accuracy of the disclosed information.
So if the provision is unnecessary for legitimate organisations, we must ask when it might be of use. We do not believe it would be appropriate where notices are served on persons or organisations who are suspected of being involved in criminality, for obvious reasons. Let me reiterate a couple of points I made on Report.
First, if someone is a suspected criminal, it does not seem to us to be appropriate to trust that person to go and prove, presumably by means of a third party, the authenticity of the relevant plain text. Secondly, there is also the timing point. There may be critical timing considerations involved in a specific investigation. An additional evidential stage or test would mean time taken up for compliance, for reviewing the evidence supplied and for responding to the view taken of the evidence. We really do not see how all of that can be built into the procedure without potentially damaging the effectiveness of the Part III power. I am sure there are few in your Lordships' House who want to undermine an effective and coherent approach to investigation. It would cast the investigating agency into an uncomfortable quasi-judicial role as reviewer of evidence.
Amendment No. 20 would further restrict the cases where a key must be disclosed. I understand entirely the spirit behind the amendment and to a large degree share the intent. I hope by now noble Lords will acknowledge our sympathy with this aim. We have done what we can, even to the extent of recently tabling amendments to bolster the principle that plain text is the norm. I am therefore genuinely sorry to have to oppose this amendment.
The amendment would apply to the person who has the protected information in his possession and a key to that information, but not all the keys necessary to produce plain text. The noble Lord would allow the person to seek the assistance of the person who has the missing key and by that means to deliver plain text.
I hope that those arrangements would normally apply. But as I explained on Report, we cannot allow the recipient of a notice as of right to tell someone else about the Section 49 notice, whether to seek assistance or for some other reason. That is because the notice may contain a secrecy requirement. On the other hand, where there are no operational reasons for preventing that sort of disclosure, I agree that it should be allowed.
This afternoon I give an undertaking that we will expressly make that point in the code of practice. I realise that that may not entirely satisfy the noble Lord's second amendment. However, it may be a neater and ultimately more effective way of achieving what the noble Lord is seeking. I trust with that explanation the noble Lord, Lord Lucas, will feel able to withdraw his amendment.
My Lords, in moving this amendment, I shall speak also to government Amendments Nos. 23 and 26 and to Amendment No. 27, which is tabled in the name of the noble Lord, Lord Lucas. Amendments Nos. 22 and 23 represent a technical change. In looking at the change that we made on Report to what is now Clause 51(2), we noted that the military police are not properly covered in subsection (2)(a). We are proposing these technical changes to correct that point.
When, on Report last week, we discussed levels of authorisation for requiring that keys be disclosed, I indicated that we would look at imposing a requirement that any direction given by the persons mentioned in what is now Clause 51(2) should be notified to the relevant independent commissioner. Amendment No. 26 is the result of that undertaking. It means that any directions for the disclosure of keys given internally by the police, HM Customs or Her Majesty's forces be notified within seven days to either the Intelligence Services Commissioner or the Chief Surveillance Commissioner, as appropriate. We have already substantially increased the level of authority required for directions to be given requiring the disclosure of keys.
This amendment introduces what we believe is an additional, but important, safeguard. I expect the cases involving internal agency authorisations to be limited. But in the operational circumstances in which they might arise, I hope that this statutory notification requirement will add a measure of further reassurance. When we discussed the issue of authorisation last week, the noble Lord, Lord Cope, said that the suggestion of notifying a commissioner was well worth consideration. I hope, therefore, that this provision is welcome.
I am most interested in the suggestion made by the noble Lord, Lord Lucas, in Amendment No. 27. Unfortunately--no doubt the noble Lord will accept this--the amendment is technically deficient. Because of the rules of procedure at Third Reading, we have been unable to table a manuscript change to correct that deficiency. In any event, we do not believe that this matter needs to be reflected on the face of the Bill. We clearly agree that chief constables should be required to notify the commissioner as soon as they can. But we do not believe that such a stricture is easily compatible with one specifying a particular time-scale. The time-scale is the important consideration; and the Bill provides for a seven-day limit.
Having said that, we shall ensure that the code of practice should encourage best practice in terms of immediate notification, or something similar. The noble Lord will have ample opportunity to comment on the code, not least when it returns to Parliament under the affirmative resolution procedure. I am sorry that we could not be more helpful to the noble Lord; indeed, we desperately wanted to be but the procedure rules prevented us being so. However, in the light of my reassurance, I ask the noble Lord not to move his amendment and I trust that the House will accept the government amendments in this group. I beg to move.
My Lords, perhaps I may begin by picking up the Minister's final point. In that way, I can at least have the benefit of the thoughts of my colleagues on the Front Bench on my thoughts, and that might give me some guidance. I turn, first, to my Amendment No. 27. It seems to me that the procedures of this House are in the hands of the House. It is always possible for this House to do what it wants. If the noble Lord would care to indicate what amendment he would like to see, I am sure that with the agreement of the House nemine dissentiente, as the noble and learned Lord the Lord Chancellor said the other day, we could find some way of putting such a provision into the Bill.
However, if that is not possible, the sensible way to deal with the matter is to pass the amendment. The noble Lord could then set it right this afternoon in the other place. Either way, it seems to me that it is a very important reassurance for those companies that will be studying this Bill to know that it is not a seven-day delay. There is much opportunity for things to go wrong and for the situation to be made difficult during a seven-day period, whereas, if the reference is immediate or, in effect, immediate, people will feel pretty confident that the judgment of the commissioner will be the one that holds sway. With the commissioner being an independent judicial figure, I believe that that will give people a great deal of comfort.
I believe, therefore, that my amendment is important. It will cause the Chief Whip a minor inconvenience as regards this Bill making a brief reappearance in this Chamber, to general approbation, sometime tomorrow or, perhaps, the following day. Other than that, it should cause little inconvenience to get this part of the Bill right. In my view, it would make a great contribution to the overall effect of the Bill, as far as concerns the major players on the Internet.
With that in view, I have a few further questions for the Minister in the context of these amendments. First, am I right in thinking that the circumstances under which the Government envisage requiring keys come under two headings only, which might be called "trust" and "timeliness"--in other words, the first is the situation where they do not trust the person to provide plain text, and the second is where they need the information fast? Am I correct in thinking that those are the only two circumstances in which the Government envisage requiring such keys?
Secondly, on looking at the amendments that we have made to the Bill, it seems to me that the Government have an opportunity in another place to address the defect which both sides of the House seem to agree exists and which formed the subject of the amendment that I lost earlier. There is a route under Clause 49 for keys to be demanded that does not trigger the safeguards that now exist in Clause 51. I believe that a simple change to the references at the beginning of Clause 51 would put the matter right. I am sure that I could not draft it "on the fly" myself, but if the Government are willing, they will have the opportunity to do this in another place. I should, therefore, very much like to know from the Government whether they agree that this lacuna exists. I also hope that they will agree that it might be put right by such an amendment.
My Lords, I shall speak, first, to the main amendment in this group, Amendment No. 26. It is good that an element of judicial oversight has been brought into the question of the disclosure of keys. It has been one of the most difficult and criticised aspects throughout our debates on the Bill that government agencies were acquiring the rights to require other people to give them keys.
That requirement has gradually been narrowed down a little during the proceedings on the Bill--notch by notch, as it were--and the safeguards have been increased. I have in mind, in particular, the new safeguard that keys shall be asked for only by direction of a chief officer of police, or the equivalent officer in Customs and Excise. Nevertheless, it was still the police who were going to make the decision. There are occasions when the time-scale would probably make that necessary and essential; for example, when terrorism and other types of very serious crime are being investigated. But, at the same time, for the police to approve such a requirement without any immediate oversight seems to be a disadvantage. Therefore, it seems to me that making the chief constable report to the commissioner that he has given such permission is an extremely important safeguard. That is particularly so when we consider the later amendments--Amendments Nos. 38, 39 and 40--which make it clear that the commissioner can make a report to the Prime Minister at any time.
A chief constable, an equivalent officer from Customs and Excise, or whoever, may require such a key. On learning about this a few days later, the commissioner may think that the officer concerned should not have done so in the particular circumstances. The fact that the commissioner can then report immediately to the Prime Minister that such action has taken place is a great reassurance. I think that will mean that in doubtful cases chief officers of police will obtain clearance in advance from the commissioner before requiring a key.
The commissioner will also be in a position to observe whether a pattern is developing in this regard, perhaps within a particular force or within the Customs and Excise. If he noticed several requests for keys, he could report that to the Prime Minister. It would take a determined chief officer of police not to think carefully before continuing with that course of action. More immediate judicial oversight is likely to prove more effective than the annual report of the commissioner--which, inevitably, is issued well after the event--in ensuring that keys are demanded only in special circumstances. This is an extremely important and welcome concession from the Government with regard to keys.
I turn to Amendment No. 27 in the name of my noble friend Lord Lucas, which seeks to speed up the giving of the notification to as soon as possible, and not longer than seven days, after the giving of the direction to which it relates. That is a highly desirable amendment. I accept that it may not be perfectly drafted. It is always possible for amateurs such as my noble friend and myself to overlook some legal point when drafting amendments. I am sure that if the Government and the House wished, we could put that matter right straight away. I hope that the Minister will suggest that. The amendments seem to me to constitute an extremely valuable additional safeguard with regard to the most sensitive aspect of the Bill; namely, demands for keys.
My Lords, the Minister has made some important and welcome concessions. My noble friend Lord Lucas may be only an amateur but he is a gifted one in this regard. The Minister has suggested that my noble friend's amendment cannot be accepted on procedural grounds. However, the amendment could be referred to the other place, should that be the will of the House.
My Lords, we on these Benches concur entirely with what has been said by the noble Lords, Lord Lucas and Lord Cope of Berkeley. I suppose that there is a curiosity to see whether or not the reporting requirement to the chief surveillance commissioner on the one hand and the intelligence services commissioner on the other is sufficient. However, I fully accept that there is a right to report to the Prime Minister. In the light of experience Parliament may want to review whether there should be any further embellishment of that requirement and whether the relevant commissioner should have to refer the matter to a High Court judge with the matter in issue being, in effect, suspended until that occurs. Subject to that question mark, we are entirely in support of what is a crucial amendment to one of the heartland provisions of the whole Bill.
My Lords, I am not the world's greatest expert on procedure but the Companion states that manuscript amendments are not permitted at Third Reading and that the principal purposes of amendments at Third Reading are to clarify any remaining uncertainties, to improve the drafting and to enable the Government to fulfil undertakings given at an earlier stage of the Bill.
I fully accept the spirit in which the noble Lord's amendment is moved. However, it introduces an element of contradiction. Our amendments have imposed a duty on chief constables to notify the judicial commissioner of the giving of a direction within seven days of the giving of that direction. The noble Lord wants to tighten that time-scale to as soon as possible after the giving of the direction. We argue that that is not necessary. It would constitute bad policing and poor management to hold back a notification for longer than is necessary. We believe that the duty on chief officers is as robust as that which the noble Lord seeks. The wording that the noble Lord suggests might delay matters. Therefore, I cannot accept an amendment that is outside the procedures of the House. As I said, it is not necessary.
My Lords, with the leave of the House, does the noble Lord accept that, should the House accept my noble friend's amendment, that amendment would then be considered in the other place and it would be open to Members of the other place to amend my noble friend's amendment to correct the drafting problems which the Minister has mentioned and we could all live happily ever after?
My Lords, the point I tried to make when I said that the amendment was outside the procedure of the House is that if the noble Lord were to rewrite the amendment, it would be a manuscript amendment. However, I also questioned whether the amendment is necessary. I said that I fully accept the spirit behind the amendment. I also thought that I made it plain that we do not feel that it is necessary to include the amendment in the Bill as we can include it in an appropriate form in the code of practice. The code of practice will be an important measure, particularly in regard to interpreting legislation. As I say, we cannot accept a defective amendment and we cannot, as it were, spirit up a manuscript amendment and accept it simply because we feel that that is the right thing to do. Amendments should be properly circulated to enable them to be fully debated.
My Lords, it is for the House to decide whether to accept the amendment. If the amendment were to be accepted, we would have to advise the other place that we considered the amendment to be defective. We would invite the other place to reconsider it and suggest a more appropriate wording.
Earlier the noble Lord, Lord Lucas, referred to the matters of trust and timeliness. I readily confirm that those are precisely the values which we seek. We see no reason why anything else should be the case. I hope that I have answered the noble Lord's point.
I am pleased with the debate that has taken place with regard to the Government's amendments. We think that we have the balance right. We have an element of judicial involvement. As the noble Lord, Lord Cope, has rightly acknowledged, it would be foolish for law enforcement officers to ignore the reference to a judicial commissioner, particularly where the latter was concerned by the pattern of events.
We feel that we have got an appropriate level of authorisation. I am pleased that there is an acceptance of that. I ask your Lordships to reject the noble Lord's amendment; it would be wrong and inappropriate if it were to be agreed to. I urge the House to accept the government amendments in the spirit in which they have been moved and agreed.
My Lords, I am not sure that I do accept that a lacuna exists. I shall take the point away and give it further consideration. That is the best way I can leave it today.
My Lords, in moving Amendment No. 24 I shall speak also to government Amendment No. 25--which would appear, on the face of it, to be a better drafted version of my amendment.
We are seeking to ensure that the effect on the business of someone whose key is being sought is taken into account in deciding whether or not the direction that a key should be given is proportionate to what is sought to be achieved by obtaining the key. Sometimes giving up a key may have an appalling effect on a business for which confidentiality is important. We have rehearsed this point in different ways throughout our discussions on the Bill.
The amendment, taken together with the government amendment which allows damages to be awarded if a key is lost, for example, will mean that those making the decisions to demand a key--chief constables and so on--will think carefully about who they are demanding it from. If they are demanding it from a business where huge consequences could follow, they will have to allow for that in making their decision.
This seems a useful amendment. As I said, the Government's version is slightly different from mine; it leaves out the word "reputation", which may be correct. I am glad that the Government are supporting the point which lies behind both amendments. I beg to move.
My Lords, I, too, welcome the amendment. No doubt we will in due course accept the government amendment; to my mind, too, its drafting is rather better.
I have one question for the Minister. The noble Lord will recall that on Report we debated, as my noble friend said, the interaction of key disclosure provisions with confidentiality requirements from other jurisdictions. As I understood the noble Lord's response, it is not unreasonable to suppose that such obligations will always be compromised to some extent by national rules requiring disclosure of information. I can understand that; I have no problem with it. But this argument does not address the point that it remains possible for the disclosure of a key to compromise the confidentiality of information that is wholly unconnected to that which is subject to the notice.
Of necessity, this class of information would not be subject to a statutory obligation of disclosure. In effect, cross-jurisdiction obligations of confidentiality would be breached without any legal defence. It is perhaps to state the obvious that this has the capacity to create considerable legal uncertainty about the regime among the international business community--and that, in turn, could have serious consequences on the competitiveness of the UK as a centre for e-business and financial services.
Are the Government entirely satisfied that the current provisions on the face of the Bill and in their amendment are free from the legal uncertainty to which I have referred? I should welcome any comment the Minister can make to relieve my anxieties.
My Lords, this matter continues to be of concern to industry. A brief from the London Investment Bankers Association refers to,
"the particular concerns of our Members about the interaction with other confidentiality requirements to which they are subject in other countries, particularly where disclosure of a key could compromise the confidentiality of information (with possible criminal consequences) which is not the subject of a Section 49 notice".
We have debated this issue many times, but industry is concerned that the transfer of a key will open up doubts about confidentiality, particularly for the members of the London Investment Bankers Association, who have wide and very confidential international responsibilities.
My Lords, I shall be popping up on several occasions in the hope that the message will wing its way from the box to the Minister to deal with the back end of the amendment that we lost. My understanding of what the Minister said at that time is, yes, there is a lacuna in the Bill; yes, if the police, or whoever, were in possession of protected information that they were not prepared to reveal to the subject of the notice, they could force a disclosure of a key; and that disclosure would not be subject to the Clause 51 safeguards. If that is the case, then this amendment is all very well but it will not achieve anything because there is a great, gaping hole in the Bill around the side of it.
I should like to know at some stage whether I have completely misconstrued the Bill and what the Minister said, or whether there is a problem and we should be looking at ways of dealing with it.
My Lords, we are at Third Reading and we are dealing with amendments tabled for Third Reading; we are not at Committee stage. I shall reply to the amendment moved properly by the noble Lord, Lord Cope, and suggest why our amendment is to be preferred. Some background questions have been asked. Whether they should have been asked is another matter--but they have been and I shall do my best to respond to them.
As far as concerns Amendment No. 24, we are all on the same side. We can see exactly what the noble Lord is trying to get at. He is trying explicitly to include in considerations of proportionality any considerations related to the potential impact on a business. We do not think that his amendment is in the correct place in Clause 51. We believe our amendment will achieve the same effect by amending subsection (5) of Clause 51. He is quite right, the word "reputation" does not appear in our amendment as it does in his. That is because we believe the value of the reputation in this context lies in its value for business. I ask the noble Lord very gently if he will consider withdrawing his amendment in favour of ours, which I should like to move next in our proceedings.
The point made by the noble Earl, Lord Northesk, concerns information other than the protected information which is covered by a key. That danger led to Clause 51(5), which was inserted at the instigation of the noble Earl, Lord Liverpool. We are as confident as we can be in relation to the matters mentioned by the noble Earl. We know that there are concerns from a business point of view. We have met them as best we can. But I really do not feel that Third Reading is the time to go over matters that were debated fully and properly at the Committee stage.
moved Amendment No. 26:
Page 58, line 40, at end insert-
("(6) Where a direction for the purposes of subsection (1) is given by a chief officer of police, by the Commissioners of Customs and Excise or by a member of Her Majesty's forces, the person giving the direction shall give a notification that he has done so-
(a) in a case where the direction is given-
(i) by a member of Her Majesty's forces who is not a member of a police force, and
(ii) otherwise than in connection with activities of members of Her Majesty's forces in Northern Ireland, to the Intelligences Services Commissioner; and
(b) in any other case, to the Chief Surveillance Commissioner.
(7) A notification under subsection (6)-
(a) must be given not more than seven days after the day of the giving of the direction to which it relates; and
(b) may be given either in writing or by being transmitted to the Commissioner in question by electronic means.").
My Lords, with this amendment we should like to discuss Amendments Nos. 50 and 51. We are at Third Reading. The intention behind the amendment is to ask the Government even at this late stage to pause and think. Yesterday's New York Times said of this measure:
"The measure ... would make Britain the only Western democracy where the government could require anyone using the Internet to turn over the keys to decoding e-mails messages and other data".
Throughout the proceedings on the Bill, and in the last gasp briefings we have received from the Federation of The Electronics Industry, the CBI, investment bankers and so on, great concern has been expressed that the powers in the Bill will have serious and detrimental effects on business. We want to be absolutely sure that the Government know that the gun is loaded and that it is the considered advice of industry that there are consequences to carrying through Clause 51 and Part III. While there are all the other benefits of the Bill, is there not time to pause and consider the implications of Part III for e-commerce and Britain's international standing within it? I beg to move.
My Lords, I know that noble Lords will not want to go over this crucial part of the Bill again and would not want to do so at Third Reading. However, the proposal in the amendments either to drop altogether or delay the introduction of Part III and certainly Clause 51 gives an opportunity to those who are deeply worried about the Bill to ask a final question before it passes from our hands.
We know--it was said at Report stage--that the purpose here is to impose national legislation on what is a global communications system. That is bound to create some limitations on what can be achieved. We also know--again it was said at Report stage--that technology is moving very fast in this area and may well render some of the provisions of the Bill ineffective almost before it becomes a statute. What worries me about Clause 51 is best put as a question to the Minister. What will happen if a handler of data traffic--a person or persons on whom a disclosure requirement is served--or an Internet service provider, when asked for the key, says, "I do not know where it is. I have no idea of its location"? It may be that messages are passing between a giver and receiver within United Kingdom jurisdiction, but it is perfectly possible, as we heard at Report stage, for the Internet service provider to be in Dubai, the application service provider to be in Bangalore and the key to be anywhere. It could be in Bahrain or it could be moving around. It might not be located in any national jurisdiction and therefore would not be available.
Clause 51(5) of the Bill directs its attention towards,
"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".
That rings very loud warning bells. The experts and technologists, for good reasons or bad--probably for market driven reasons--will devise, and may already have devised, means by which the location of the key is just not possible. What will happen when the answer to the question, "Where is the key? You must provide the decryption key", is, "We do not know. We genuinely do not know where the key to these data lies. If you do not believe in the plain text and you feel it is justified that a notice should be served for the divulging of the key, I am sorry. We cannot help you. It lies without our jurisdiction and indeed perhaps without any jurisdiction"? How will that problem be solved?
People outside the House are already talking about a world in which the whole attempt to impose the spirit of Clause 51 and the related clauses will be rendered nugatory by the rapid advance in technology and may make our efforts in relation to this part of the Bill look rather ineffective and absurd.
My Lords, perhaps I may support the noble Lord, Lord McNally, and my noble friend Lord Howell of Guildford by making one point. I do not necessarily blame the Government for trying to introduce this mistaken approach. I think it is possible that they have been badly advised by their officials. I am going to take two minutes of your Lordships' time to tell a story from the past, which in a sense illustrates that Whitehall officials are not necessarily the best people to advise on what the real electronic world is about.
Just before 1970, when I was young and enthusiastic about the capabilities of computers, I remember saying to a senior official in the Ministry of Health what a good thing it would be if the government were to start to make more use of computers in the administration of the National Health Service. The official said charmingly to me, "Mark, before we spend public money on computers, we have to be sure that they are here to stay".
I use that story as an example because the problem is almost certainly the advice that the Government have been getting. I would suggest that the advice that has been showered upon us from all sides is probably more relevant and should take precedence over the advice that Ministers have received.
My Lords, in speaking to Amendments Nos. 50 and 51, I should perhaps start by pointing out that my decision about what to do with the amendments will depend almost entirely on the answer to the question that I have now asked three times without receiving an answer. As Clause 49 is set out, is there or is there not a major hole in the Bill as a result of the ability of a police officer who holds encrypted information to refuse to provide that and instead make someone divulge the key? If there is not, perhaps we should give the Bill a chance to see how this will work in practice. However, if we are looking at a provision that contains a large hole about which the Government intend to do nothing, it is clear that we should not allow this part of the Bill on to the statute book without a long period of further reflection.
Part III covers a system for allowing the police and others to require keys. In practice, this will be largely ineffective. Anyone with a key will presumably carry that key in the form of a password inside their own head. Refusal to give up the key in circumstances where it might damage a person will, first, incur only a light sentence. In any case, there will be a powerful incentive not to divulge it in the first place.
Secondly, it must now be clear to the Government, following the judgment given in the speed camera case, that the Human Rights Act will be invoked on this matter. It is not possible to compel in statute someone to divulge a key held only in their head. That would amount to self-incrimination. If the Government have not yet taken detailed advice on that point, surely it is now time that they do so. As I said, it is clear from the judgment made in the speed camera case how a judgment in a case of this kind will be made. It may be that the Government wish to argue the toss here, but they must realise that the odds are stacked against them.
This provision confers a right to require keys which is likely, at the end of the day, to reveal very little. It leads the police down a blind alley. It would be far better for them to try to acquire information through forensic hacking and by using conventional techniques such as intercepting communications at the computer; namely, by placing a bug, say, between the keyboard and the computer and collecting sufficient keystrokes to be sure that the password has been picked up during the course of such an operation. Many other procedures can be used rather than acquiring keys. I do not believe that this part of the Bill will, in practice, do much for law enforcement.
On the other hand, this part of the Bill may do immense damage to the economy of this country. If someone is considering where to site an electronic operation protected by keys, the security of that system will be of enormous importance. During the passage of the Bill, the Government have done a great deal to improve on the original legislation. I had thought that we were moving towards the point where we had something that was worth letting go. However, I am very disappointed by the consistent refusal of the Government to answer my one final question. The noble Lord, Lord Bach, points to his noble friend the noble Lord, Lord Bassam. However, I gave the noble Lord, Lord Bach, an opportunity to respond a little earlier. If he had so responded, I would not have had to make this speech.
My Lords, the difficulty about being patient at Third Reading is that noble Lords have only one opportunity to make a point. I want the noble Lord to be quite clear about why I place such importance on my question.
Many international businesses need to decide where to place their keys. Wherever those keys are placed, it is as sure as eggs is eggs that the administration systems will follow. Wherever administration systems are set up, that location is likely to develop into the commercial heart of the business. Over time, if people cannot trust the UK as a safe place in which to store their keys, businesses will flow out of this country. That loss will be felt first in concerns such as Internet service providers, but later it will affect anyone dealing with confidential information on a large scale. The damage will be slow and insidious, but ultimately it will cause devastation in our business community.
As the noble Lord, Lord McNally, remarked, we are sticking our neck out here. This is the only major country that has so far opted to confer powers on its government to acquire keys. If others do not follow that route, we risk allowing every other country to point at the United Kingdom and say to business, "Your keys are not safe in the UK. They will be safe with us. Come here instead". Others will win business as a result. Over time, they will win a great deal of business.
As I said, I had hoped that the Government had moved sufficiently to allow us at least to give them a chance. However, I shall listen carefully to the Minister's remarks. If he has not satisfied my concerns, I shall return to the matter when we reach Amendment No. 50.
My Lords, I am sure the Minister is aware that I could--I am tempted--make a long and impassioned speech on this point. I hope, therefore, that he will be pleased to hear that I intend to limit myself to only one observation.
I hope that the noble Lord will not resort to the argument that the recent announcement from the White House Chief of Staff, John Podesta, that the Clinton administration is considering similar legislation to the Regulation of Investigatory Powers Bill, is proof of how clever has been the United Kingdom in this area. The fact is that Mr Podesta's intervention concerns far more the protection of the dubious legality of the FBI's use of its cyber surveillance system, Carnivore.
My feeling here is that they would be much better advised to rely on the words of Esther Dyson as a commentary on the true position of the United States.
My Lords, I am a little puzzled about this point. Noble Lords know that I did not much like this Bill in the first place, although my concerns lay more in the area of civil liberties rather than the effects on business. I do not feel any particular loyalty to the Bill. However, it is clear that the Government have moved a long way to clarify, accommodate and adjust the Bill. As a result of those efforts, the measure is now far better than it was when it began its journey through the House.
Two arguments have been advanced here. First, the technology is progressing so fast that it is not worth passing the measure. Secondly, the provisions are so dangerous that business will be driven away. Can a Bill be dangerous and ineffective at the same time? That appears to be a very strange combination. Either the Bill is ineffective, so it does not matter all that much, or it is dangerous, but no one has yet convinced me that it is dangerous.
If the noble Lord seeks to divide the House on this clause, I shall not be able to join him in the Lobby. I hope that he will not choose that course. If we stick by the improvements that have been made, we may yet pass a good Bill.
My Lords, I think it is a little late to say that we shall still "get a good Bill". Only a few short debates held under strict rules--of which we have been reminded by the noble Lord, the Lord in Waiting--separate us from the point at which the Bill will pass into statute.
At the start of our debates I was impressed, and I remain impressed, by the sustained opposition made against the clauses permitting the police and others to demand keys. That opposition has come from many different groups, ranging from civil liberties organisations through to organisations in the City, the CBI, trade unions and so forth. All those groups have expressed their extreme worries about the provisions as a whole.
Nevertheless, while dealing with the Bill, I have adopted the policy of doing my best to improve it. Others have done so as well, both on this side of the House and, it must be said, on the Government Front Bench. I believe that it is now a better Bill for that. However, the point of principle here--the amendment goes to that point--remains as to whether, even though the Bill has been improved and more safeguards have been put in place, the Bill is still dangerous.
With respect to the comments made by the noble Lord, Lord Desai, I do believe that the Bill can be both ineffective and dangerous at the same time. One must consider the different aspects. Should the police and other law enforcement agencies discover that they cannot use this provision to acquire information, it will be ineffective. Criminals may be able to avoid the provisions simply by locating e-mails offshore, forgetting their passwords and so forth. If criminals can take such steps, the Bill will be rendered ineffective from the point of view of law enforcement. However, the Bill will still prove to be dangerous to the economy if it frightens away people who would otherwise consider investing over here.
The Prime Minister, along with everyone else, supports the notion that Britain should be at the forefront of the e-economy. We aim to support not only the e-commerce companies themselves, but all kinds of companies using the Internet and the Web to improve their businesses. That is the way forward. If we include in the Bill a provision for government agencies to demand keys--the only one in the world--even if it is not often used, it could frighten off business. It could be dangerous from a commercial point of view, even if it is not effective. Although we have improved the Bill immensely, there remains the valid question of whether this legislation will prove both dangerous and ineffective.
My noble friend Lord Lucas has returned several times to the question of whether there is a hole in the Bill--not in terms of its effectiveness for the law enforcement agencies, but in terms of the safeguards that we have so carefully piled up in an attempt to better the Bill's provisions. Will those safeguards in themselves be ineffective? If they are, we have wasted our time adding more safeguards. We have an indication that we are about to be reassured on that point by the Minister. However, without it, we may have wasted our time in attempting to improve the safeguards, even though on the face of it we have succeeded in doing so.
My Lords, I was initially slightly dismayed to see Amendment No. 28 on the Marshalled List. However, it is probably healthy that we should have this debate one more time, and I thank the noble Lord, Lord McNally. It may be useful to bring the amendments tabled by the noble Lord, Lord Lucas, into the debate, as they cover similar territory. The first of the noble Lord's grouped amendments seeks to excise the circumstances in which keys can be required; the second seeks to delay Part III of the Bill. They go to the heart of the debate.
I think the noble Lord, Lord McNally, is trying to say that there should be absolutely no circumstances in which the authorities might be justified, or even permitted, to disclose a key or password. That is the stark meaning of the noble Lord's amendment. On a fundamental level, that cannot be right.
The circumstances under which keys can be demanded are a significant matter. We have redrafted Part III of the Bill in terms of a disclosure requirement. As I said, this emphasises clearly on the face of the Bill that disclosure of plain text is what we are after. That is what it is all about. We have rehearsed the reasons why there may be special circumstances in which keys may be required. We have added many different types of safeguards to the Bill to ensure that the keys are demanded only under very strict conditions. Underlying all this is the assertion that it must be possible in some circumstances to demand keys, for very good reasons.
I have no qualms about admitting that the majority of such instances will be cases of individuals suspected of involvement in criminality. There are those who have suggested that the requirement for keys should be limited to individuals alone and should never apply to business. I have no difficulty in reiterating how unlikely it is that keys will ever be asked for from any legitimate business. But, for as long as it remains possible that certain individuals or businesses may involve themselves in corrupt or criminal activities, it will be necessary to retain the power to demand keys in special circumstances.
The party of the noble Lord, Lord McNally, is strong on protecting individual rights--and that means, of course, rights for everyone. I am not sure how the amendment squares with that position since it has the effect of removing a potentially significant weapon which is needed to tackle crime of all descriptions. Society as a whole suffers if the police do not have the powers they need to do their job. Their powers are currently deficient in dealing with the criminal use of encryption. The reality is that there is currently no explicit disclosure power in UK law, nor a power to require anyone to disclose a key or password. This is the gap that we are plugging with Part III of the Bill by providing for a self-standing power requiring proper authorisation and subject to its own specific safeguards.
I am not sure whether the noble Lord, Lord McNally, has discussed this amendment with any chief constable, with the directors of the National Crime Squad or the National Criminal Intelligence Service, or with any of the child protection groups which have an interest in this area. They have a legitimate voice in this debate. The amendment in no way reflects that interest. No one seems to have taken on board the demands of the law enforcement agencies or of legitimate lobbying interest groups.
At Third Reading in another place the Government were criticised for not giving law enforcement the powers it needed in the Bill. We did not believe that the criticism was justified. But if there is a sure-fire way of ensuring that law enforcement is effectively hamstrung over encryption, it is by pursuing this amendment. I believe that the noble Lord, Lord Cope, recognises that there may be occasions when keys are required. In Committee on 28th June, when we moved amendments to put greater prominence on the face of the Bill to the disclosure of plain text, the noble Lord, Lord Cope, proposed similar wording which he said would:
"put plain text in the front line and ... allow applications for a key only when absolutely necessary".--[Official Report, 28/6/00; col. 966.]
We had a useful debate around that principle. This, I believe, is the position we are currently at in regard to Clause 51.
In the light of the amendment, I have reflected on a couple of remarks made previously by the noble Lord, Lord McNally, about Part III in what has been, as I have said, a wholly constructive process. In Committee, the noble Lord said, at col. 955:
"I am not one of those who believe that the new cyberspace technology is a zone that should be outside the rule of law. I still have a sufficiently strong confidence in parliamentary democracy to believe that, as a necessary protection, all parliaments should be able to construct a framework within which people conduct their activities".
I agree entirely with those sentiments. Part III has been improved immeasurably by discussion in this House. But this amendment threatens to undo that good work. In fact, it would lead to what the noble Lord said should not happen: it would effectively mean that some criminals could operate with impunity. I am not sure that that is what the noble Lord desires.
The noble Lord, Lord McNally, also said in Committee, at col. 958:
"People out there are telling us that this new technology is so footloose and fancy free that it is beyond the powers of parliamentary democracies to control. I put forward the strongly held view that it is not".
Again, I could not agree more. But my point is that the effect of the amendment would be that some criminals would indeed be free from any meaningful effect of the rule of law. If that is so, we shall have failed to carry out our democratic duty.
At its heart, the Bill deals with powers that are necessary for keeping society as a whole safe. I have referred to that already. It is not a trite remark. It is right that these powers are properly regulated. The power to access keys in Clause 51 is closely restricted. I am not at all sure that people who may not have taken a deep interest in the Bill but who nevertheless have every right to live in a society where the police have the powers they need to tackle crime will understand, let alone appreciate, a decision by this House to damage law enforcement's powers in the way proposed by the amendment.
We are working, together with industry--both on the face of the Bill and with the codes--towards narrowing down as far as possible the circumstances under which keys can be demanded from business and to ensure that this is readily understood by everyone who may be in a position to demand keys. It is important to remember that when keys are asked for from anyone, the recipient of a notice is free to decide which key to disclose. The choice lies with them. What I do not think we can do is say that it will never be possible to demand keys altogether. In the case of the individual, this would remove a significant weapon against paedophile crime, among others. The Government believe that the power must remain and there is no more that they can give on this issue.
The Bill was sent here by another place with the wish on the part of some Members that it should be improved. At Third Reading in another place Mr Simon Hughes, spokesman for the party represented by the noble Lord, Lord McNally, voted for the Bill but said that he hoped your Lordship's House would deal with his party's one remaining significant objection to Part III. That objection was not about the principle of access to keys but the accusation that the offence under what is now Clause 53 unfairly reversed the burden of proof. We have fixed that, and a good deal else besides. I am grateful to all noble Lords for their part in that process.
I turn to Amendments Nos. 50 and 51. I am grateful to the noble Lord, Lord Lucas, for raising this matter and shall endeavour to answer his "lacuna" question. These amendments are fairly straightforward. However, it is worth informing the noble Lord about our aspirations as to implementation of the Bill because it has a bearing on the point which lies at the heart of the amendments. The priority for implementation rests in Part II and, to a very similar extent, Part I of this Bill. We believe that it is necessary to implement the provisions of Part II before the Human Rights Act comes into force on 2nd October of this year so as to provide reassurance that the daily surveillance operations and use of informants by the police, among others, can continue in a way that is entirely compatible with the requirements of the European Convention on Human Rights. We view that as an imperative and shall make every effort to ensure that Part II can be implemented to that timescale.
We have similar aspirations in relation to Chapter I of Part I of this Bill. The oversight provisions in Part IV are required to support any one of the other three parts of the Bill. For those reasons, we shall work hard to establish the oversight provisions in time for implementation of the Human Rights Act.
There remains the implementation of Part III, which is the specific object of the noble Lord's amendment. Part III involves new provisions with which both law enforcement and industry must come to terms. We need to conduct further work on the code of practice for Part III in conjunction with those in industry. Further, we need to ensure that all those who may impose a disclosure requirement, or the requirement for a key, are fully aware of the implications of what they do. There are powers in the Bill for circuit judges, among others, to impose such requirements. We must ensure that a training package is implemented for each judicial figure.
In short, there is a considerable amount of work to do before Part III of this Bill can be implemented. We shall take note of the growing menace of the criminal use of encryption and proceed as fast as possible to educate all those who may be affected in one way or another by these provisions. However, this is a considerable workload. I do not believe that it will be possible to implement Part III this calendar year. At this stage we believe that we may be a considerable way into the next calendar year before Part III can be implemented. For this reason, I suspect that the aim of the noble Lord's amendment will be achieved simply through the enormity of the task that lies ahead of us. We do not want to limit ourselves to that stipulation on the face of legislation. We aim to monitor the criminal use of encryption as we go along, and that may alter the timescale. Further, it is possible that our arrangements may be put into place more speedily than seems likely at present.
Finally, I do not believe that if a delay of this kind is stipulated on the face of the Bill industry will be reassured. The real reassurance for industry is that we make progress and implement this legislation and it finds that the threats to its security, which we believe have been more imagined than real during the passage of this Bill, are illusory. The best reassurance to industry is to start this regime and let all see that it does not represent the threat that many fear. To that extent, we do not want to limit ourselves to a particular time frame.
A number of questions have been asked which I believe deserve answers. The noble Lord, Lord Howell, asked what happened when people did not know where the key was. The simple answer is that if they do not have it and cannot disclose it that is the end of the story. In response to a question put by the noble Lord, Lord Lucas, to which he has properly returned on a number of occasions, effectively keys are required by virtue of Clause 53. In those circumstances, Clause 51 does not apply. This is not a lacuna but an inevitable consequence of two facts: first, that the person may not have the protected information; secondly, that it may not be possible to show the individual the information for reasons of secrecy. Usually, that will be possible but in some cases it may not be. The situation described by the noble Lord is one in which the person does not have the information and it is not possible to show it to him. The noble Lord is concerned principally with businesses. It would be very unusual for a key to be required in those circumstances. The circumstance in which there is a withholding of information from the recipient of a notice, especially where the individual is a large or small business, is extremely unlikely. I believe that that should give the noble Lord sufficient reassurance.
The debates on these parts of the Bill have been very constructive. The Government understand the sensitivity of the issue of keys and access to them. I have sought to demonstrate throughout that the Government see very limited circumstances in which a key will be demanded. Plain text will always be preferable, but there will be situations in which it is clear that there is criminality at the root of it. We need access to keys in those very tightly constrained circumstances. I believe that we have clarified the narrowness of those circumstances beyond doubt.
Clearly, it is time to draw the debate to a close. However, I urge the noble Lords who have tabled these amendments not to press them. I believe that we have answered the questions put to us.
My Lords, before the noble Lord sits down, he did not answer the question about self-incrimination. If a person has, or is thought to have, possession of a key and fails to provide it, as a defence will he be able to exercise his right not to incriminate himself?
My Lords, I am not sure that there is a simple answer to that question. As I explained to the noble Lord, Lord Howell, if the individual does not have access to the key or know where it is clearly it cannot be disclosed. In those circumstances, that is not only the end of the story but a perfectly reasonable defence. If those are the circumstances envisaged by the noble Lord that is probably also an answer to the point.
My Lords, before the noble Lord sits down, my question does not relate to circumstances in which the individual does not know the key. I am concerned with those cases in which the individual knows the key but may incriminate himself by disclosing it. As I understand it, in this country no one is bound to incriminate himself.
My Lords, I believe that in the circumstances described by the noble Lord it would not necessarily be a defence; nor do I believe that in this area the law is finally settled.
My Lords, now that Hansard can be quoted in the courts, was the noble Lord being serious when he said a moment ago that if an individual did not have the key, or did not know where it was, that would be the end of the story? Frankly, if that is all that an individual has to say and there is no possibility of proceeding further it makes the whole exercise pointless.
My Lords, many years ago when I served a Minister one of the ways to get brownie points was to introduce in debate a few damning quotations from the other side. In those circumstances, I extend my professional compliments to the noble Lord's support staff.
From the very start, everyone has acknowledged that we are trying to ride two horses at once. Perhaps I may cite the late Jimmy Maxton: "If you can't ride two horses at once, you should never have joined the circus". This has been a Home Office security Bill and a trade and industry Bill stitched together rather hastily. It has been our task to try to improve it.
I do not regret tabling Amendment No. 28. In fact as the debate unfolded I felt more and more sure that we were right to do so not least because of the response it provoked from the Minister. At this late stage, at Third Reading, the response contained some useful and clear statements on where the Government believe they have reached on this matter. We have expressed doubts; the Government have expressed their confidence. It has never been the wish of these Benches to wreck the Bill. In those circumstances, I beg leave to withdraw the amendment.
moved Amendment No. 34:
Page 62, line 7, at end insert-
("(4) Subject to subsection (5), where any relevant person incurs any loss or damage in consequence of-
(a) any breach by a person to whom this section applies of the duty imposed on him by subsection (2), or
(b) any contravention by any person whatever of arrangements made in pursuance of that subsection in relation to persons under the control of a person to whom this section applies, the breach or contravention shall be actionable against the person to whom this section applies at the suit or instance of the relevant person.
(5) A person is a relevant person for the purposes of subsection (4) if he is-
(a) a person who has made a disclosure in pursuance of a section 49 notice; or
(b) a person whose protected information or key has been disclosed in pursuance of such a notice; and loss or damage shall be taken into account for the purposes of that subsection to the extent only that it relates to the disclosure of particular protected information or a particular key which, in the case of a person falling with paragraph (b), must be his information or key.
(6) For the purposes of subsection (5)-
(a) information belongs to a person if he has any right that would be infringed by an unauthorised disclosure of the information; and
(b) a key belongs to a person if it is a key to information that belongs to him or he has any right that would be infringed by an unauthorised disclosure of the key.
(7) In any proceedings brought by virtue of subsection (4), it shall be the duty of the court to have regard to any opinion with respect to the matters to which the proceedings relate that is or has been given by a relevant Commissioner.
(8) In this section "relevant Commissioner" means the Interception of Communications Commissioner, the Intelligence Services Commissioner, the Investigatory Powers Commissioner for Northern Ireland or any Surveillance Commissioner or Assistant Surveillance Commissioner.").
My Lords, this amendment addresses a concern that has been put to us on a number of occasions by industry. The concern is that once keys are seized under this legislation and notwithstanding the strict safeguards set out in Clause 55, there remains a possibility that keys could be compromised once they have been seized. Industry is rightly concerned to ensure that that possibility is minimised and that proper sanctions exist in case it occurs. We agree that it would be wrong for the consequences of insecure safeguarding to fall on the owners or users of keys. We also agree, as I indicated on Report, that the duty imposed on public authorities to look after keys should be actionable. In other words, if keys are insecurely stored the responsible public authority can be sued.
Before I spell out what these amendments do in detail, I fear that I need to spell out how unlikely it will be that we shall ever arrive in a position in which keys are compromised in this way or fashion. First, noble Lords will by now be very familiar with the state of preference for plain text on the face of the Bill. I made that clear in the previous debate. Noble Lords will also be familiar with the significant extra hurdles that need to be cleared before the keys themselves can be demanded. Thirdly, noble Lords will see the tight controls we place on the keys once they are seized, as set out in Clause 55.
All those factors considered, it seems most unlikely that keys will ever be compromised. In the past I have drawn an analogy with the intercept material which is subject to similar strict controls at present and which has not, to my knowledge, ever been compromised in the 15 years of operation of the Interception of Communications Act 1985. None the less, I appreciate that it is a matter of perception. I appreciate that were keys to be compromised in this way, the Bill should be clear where liability should lie.
Two elements of the liability are envisaged in this amendment. The first--at new subsection (4)(a)--would be in respect of a person who failed to ensure that adequate arrangements were in place for the protection of keys. The second--at new subsection (4)(b)--would apply to those who did not comply with the arrangements properly and thereby compromised the key. We believe that both elements are required. It could be as a result of failings in either aspect that keys came to be compromised. I believe that it would be an unlikely but hypothetical situation.
New subsection (5) sets out the individuals who may sue for these purposes. They are limited to those who have made a disclosure in pursuance of a Section 49 notice, or those whose protected information or key has been disclosed by someone else in pursuance of such a notice.
We think that that gets the balance about right between proper legal accountability on the one hand and unlimited remote claims on the other. However, noble Lords will note that someone whose information is protected by a key, even if that key is not "his" in the conventional sense of the word, is covered by the class of potential litigants. So a bank customer can sue on a failure to look after a bank key that he happens to use. That was a specific point raised on Report. I am happy to make the position clear now at Third Reading.
Finally, Amendment No. 42 allows for an order made under Clause 65 to allocate some or all of these proceedings to the tribunal to be established under Clause 65. Our initial view is that the tribunal should hear such cases where they are related to interception or where there is a secrecy notice attached.
I hope that I have explained in detail the importance of these amendments. They are designed to strengthen the obligation of the state to look after keys in the unlikely event that they are seized and to give industry redress in the still more unlikely event that things go wrong. I beg to move.
My Lords, I spoke on this point at an earlier stage. I, too, hope that no key is ever compromised. However, I believe that the amendment is necessary, first, in case a key is compromised, inadvertently or in any other way. It will give protection. Secondly, the fact that damages may be available will help to ensure that agencies which gain keys look after them properly. In some cases, they will have a huge financial penalty if they should fail in their duty in this respect.
moved Amendment No. 36:
Page 64, line 29, leave out from ("State") to end of line 32 and insert (", after consultation with the Interception of Communications Commissioner, shall-
(a) make such technical facilities available to the Commissioner, and
(b) subject to the approval of the Treasury as to numbers, provide the Commissioner with such staff, as are sufficient to secure that the Commissioner is able properly to carry out his functions.").
My Lords, government Amendment No. 36 is designed to respond to Opposition concerns that the interception commissioner may not be provided with sufficient resources to do his job. Voicing those concerns, the noble Lord, Lord Phillips of Sudbury, made telling remarks on Report about the provisions of the Bill which relate to commissioner oversight. We have taken his comments to heart. I hope that he agrees.
We all agree that the commissioners are an important part of the Bill's safeguards; and these amendments have been devised to provide reassurance that the commissioners will be in a position to do their job effectively.
Amendment No. 36 imposes a duty on the Secretary of State to provide the commissioner with the technical facilities and staff as are sufficient to enable him properly to carry out his functions. Coupled with the requirement in Clause 58 that all those involved in the interception regime disclose to the commissioner all the documents and information he requires, I hope that the House will agree that the commissioner and his secretariat will be a force to be reckoned with, and that we have done what we can to give him the tools necessary to fulfil his expanded role as the regime enters a new era.
Amendments Nos. 39 and 40 are aimed to remove any doubts there may have been previously that the interception and intelligence services commissioners may report at any time to the Prime Minister on any matter relating to their functions as they think fit. We have extended this power to both commissioners for consistency's sake. We do not need to do that as regards the Chief Surveillance Commissioner. He has this power in Section 107 of the Police Act 1997. I beg to move.
My Lords, at times during debate on the Bill it has been rather like mapping in a fog. However, one matter has stood out with absolute clarity: unless we have an effective enforcer of those provisions in the Bill designed to protect against abuse of the very large powers to be enacted, the job will be ill done. For that reason, we on these Benches felt strongly about resources as regards the interception of communications commissioner. I am delighted to read the Government's amendment, which appears to be slightly stronger than the amendment I ventured to put forward. I am therefore entirely in accord with the Government's proposal.
My Lords, speaking as a former commissioner, I welcome the amendments. When the Bill is enacted, the burden on the interception of communications commissioner will be greatly extended. In Committee I spoke of my fear that it may prove to be too much for one retired judge. It would certainly be too much for a serving judge and it may be necessary to appoint an assistant commissioner to help bear the load. Let us see what my successor feels about that after the Bill has come into force.
As regards access to the Prime Minister, de facto that has always been so. I have never had any difficulty in speaking to any Secretary of State and on one occasion when I thought it necessary I saw the Prime Minister within a very short time. There is no harm, and it would be all the better, to have that position enshrined in legislation. I therefore welcome the measures.
Before sitting down, perhaps from a watching position I may offer a few words of congratulation on the many good things the Bill has done to improve the interception process without in any way compromising the principles of safeguarding the citizen on which it is based. I shall not take up your Lordships' time with details, but all sides in your Lordships' House have combined to bring about the measures. There has been virtually no controversy about them and I am sure that the Bill is a welcome result for citizens.
moved Amendment No. 39:
Page 65, line 31, at end insert-
("( ) The Interception of Communications Commissioner may also, at any time, make any such other report to the Prime Minister on any matter relating to the carrying out of the Commissioner's functions as the Commissioner thinks fit.").
On Question, amendment agreed to.
Clause 60 [Co-operation with and reports by s. 59 Commissioner]:
moved Amendment No. 40:
Page 67, line 25, at end insert-
("( ) The Intelligence Services Commissioner may also, at any time, make any such other report to the Prime Minister on any matter relating to the carrying out of the Commissioner's functions as the Commissioner thinks fit.").
On Question, amendment agreed to.
My Lords, we tabled the amendment at the request of colleagues in Northern Ireland. Your Lordships may remember that at an earlier stage we tabled provisions relating to the post of an investigatory powers commissioner for Northern Ireland; and that is now Clause 61 of the Bill. The amendment slightly broadens the range of judicial figures who could hold the appointment. I beg to move.
My Lords, Amendments Nos. 43 to 45 respond to concerns that complaints about Section 49 notices may go to the tribunal established by the Bill if they are authorised by the Secretary of State, and to a court if authorised by that court. But they have nowhere to go otherwise; in other words, there is no avenue of complaint available concerning notices which are authorised internally by the police, Customs and the military. These amendments remedy that omission and ensure that a right of redress is provided in all circumstances. I beg to move.
moved Amendments Nos. 44 and 45:
Page 72, leave out lines 16 to 19 and insert-
("(d) a permission for the purposes of Schedule 2 to this Act;
(e) a notice under section 49 of this Act; or").
Page 72, line 36, at end insert-
("(11) In this section "judicial authority" means-
(b) any judge of the High Court of Justiciary or any sheriff;
(c) any justice of the peace;
(d) any county court judge or resident magistrate in Northern Ireland;
(e) any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge of the Crown Court or of a justice of the peace.").
On Question, amendments agreed to.
Clause 73 [Conduct in relation to wireless telegraphy]:
My Lords, this is a technical amendment to Clause 73, which amends Section 5 of the Wireless Telegraphy Act 1949. This amendment arises out of concern raised by the Department of Trade and Industry in relation to the activities of Radiocommunications Agency (RA) officials. RA officials monitor radio transmissions to determine whether those transmitting have the appropriate licences for their activities and are complying with those licences. This activity currently takes place under the provisions of Section 5 of the Wireless Telegraphy Act 1949.
We are content that the Wireless Telegraphy Act provides sufficient cover, including Human Rights Act cover, for the RA's monitoring activities and that it therefore does not need a Part II authorisation for this monitoring. However, as some of its conduct could be capable of being authorised under Part II, the amendment to Section 5 set out in Clause 73 as drafted might prevent the RA obtaining authorisations under the Wireless Telegraphy Act.
This amendment is required to ensure that the RA is not precluded from obtaining a Wireless Telegraphy Act authority. I beg to move.
My Lords, as the noble Lord, Lord Bassam, explained, the practical effect of the amendment is to give the Government an opportunity to delete Clause 3 from the Bill without having to come back with further primary legislation. Having listened to everything the Minister said today, I think that the Government will need that power. They have deliberately left a lacuna in the Bill. A request from the police for keys must be authorised at the level of chief officer of police and notified to the commissioner. If the police ask for plain text and are refused the protected information, they are therefore entitled to ask for keys. I agree that that should be the case, but if they go about obtaining keys in that way, the authorisation is at a lower level and there is no notification to the commissioner.
That is such a hole in the Bill that I do not believe that it will command confidence to any significant extent among major companies when making decisions about where to locate their business. I do not see how, in 12 months' time, the Government can but wish that they had not passed such legislation. My amendment merely gives them the opportunity to forget this provision quietly while causing them little trouble. I beg to move.
My Lords, I beg to move that this Bill do now pass. In doing so, I believe that it is only right that I spend a few moments reflecting on the progress that has been made with this important piece of government legislation and to offer my thanks and congratulations to all Members of your Lordships' House who have participated and played an important and, I believe, significant role in improving the quality of the Bill. Much has been said today about the role of the House in that regard, and I believe that a good deal of it is absolutely true. Many amendments have been moved, and many have been accepted--if not in absolute "plain text", then certainly in spirit. I have been most grateful for the constructive way in which noble Lords have responded.
We said that we would respond to industry representations and we have done so. There will be further opportunities for that to happen during the course of the discussions, debates and deliberations that will need to take place with regard to the code of practice. I believe that that will contribute significantly to ensuring that the legislation is workable.
An important section of the Bill that we did not debate at great length was Part II. I predict that Part II will be seen unashamedly as good news. It is not an area about which there has been great fuss or controversy, but it is important legislation that will put on a statutory footing the use made by law enforcement agencies of surveillance and covert intelligence sources. I believe that it will provide considerable reassurance to the public and will ensure compliance with the Human Rights Act, which comes into force later this year.
Noble Lords have conducted themselves well. We have had an interesting series of debates and I pay tribute to all who have taken part. I have been most grateful for the advice and guidance that we have received, particularly from time to time from the noble and learned Lord, Lord Nolan. I have also been grateful to my noble friend Lord Bach who has been extremely helpful and supportive in seeing through the debates. I also pay tribute to the good humour and sense of purpose exercised by all who have participated.
This a worthy piece of legislation. It certainly achieves government objectives in the field and I believe that it is something of which, rightly, we should be proud.
Moved, That the Bill do now pass.--(Lord Bassam of Brighton.)
My Lords, as the Minister said, we are sending back to another place a very different and much better Bill than we received. I believe that your Lordships' House can claim the credit for that. The Minister acknowledged again today the constructive approach adopted all round--from this Front Bench, from the adjacent Front Bench, if I may describe it as such, from my noble friends behind me and from all parts of the House.
The Minister, his colleague, the noble Lord, Lord Bach, and his officials and advisers have also been most helpful and constructive in trying to improve the Bill, encouraged no doubt from time to time by the noble Lord the Captain of the Gentlemen-at-Arms.
The reason that I believe your Lordships' House can take particular credit for the large number of improvements is not least because, when asked what amendments were likely to be made in the Lords, the Minister of State in another place replied that he considered that only minor and technical amendments would be required. In contrast, we have re-written large sections of the Bill: we have redefined traffic data; we have provided for a technical advisory board to look after the technical difficulties of black boxes; and we have tightened up the provisions for the Government to pay for those black boxes. This afternoon an extremely significant statement was made with regard to the fact that in most cases ISPs, which provide services only for financial organisations, would not require black boxes.
The vital Part III of the Bill concerning key disclosure has been turned round completely so that, instead of keys being demanded and plain text being accepted in lieu, the normal process will be that plain text is demanded and keys asked for only in rare cases. The various safeguards have been tightened up in several respects, notably, that no key is supposed to be demanded unless the chief constable or equivalent asks for it. He then becomes subject to judicial oversight of a kind in having to report to the commissioner. I say "supposed to" because the difficulty, to which my noble friend Lord Lucas drew attention, remains of the possibility of keys being demanded without those safeguards.
We have made various other changes to the Bill, all in all, I believe, leading to an important set of improvements. At the same time, the question remains as to how much damage may be done by Part III in particular to our aim, including that of the Government, that the United Kingdom should be at the forefront of e-commerce and that our companies should be able to use the web and the Internet as much as anyone else. I have no doubt that collectively your Lordships have done a great deal to mitigate that damage. However, at the same time, that possibility remains.
Apart from that part of the Bill, which obviously will require further thought by the Government, the remainder, as the noble and learned Lord, Lord Nolan, said a few moments ago, is of value. That is why I support the proposition that the Bill do now pass.
My Lords, it has been mentioned on a number of occasions that the Bill, which, rightly, we have put through stiff tests, improves and strengthens civil liberties in this country. It brings within statute and within parliamentary control activities which previously were covered only vaguely. Although we have been determined that the Bill should be given the stiffest of examinations, there is, as the noble Lord, Lord Cope, and the noble and learned Lord, Lord Nolan, said, a good deal of satisfaction at the role that this House has played.
Many people have asked what kind of House the reformed House of Lords will be. I believe that the Regulation of Investigatory Powers Bill provides a good example of an advisory and revisory House doing its job properly. We have tried to put the Bill on three firm legs. With regard to the section on e-commerce, I remember in particular the intervention of the noble Lord, Lord Stevenson, as being powerful and influential in relation to civil liberties. The noble Lord, Lord Desai, has acted as a Buddha, watching over us and occasionally intervening on the matter. From their different perspectives the noble Baroness, Lady Thornton, and my noble friend Lady Harris have reminded us of the important issues to be considered in relation to police powers.
It would be remiss of these, and I suspect other, Benches if I did not place on record our thanks to Charles Lindsey, Caspar Bowden and Richard Clayton, who have given us useful advice as the Bill has unfolded. If I may make a plug for lobbying, this has been a useful example of how external experts and outside bodies can and should influence legislation. This House is particularly adept at using such advice well to improve legislation.
I, too, support the Motion that the Bill do now pass. I offer my sincere congratulations to the noble Lord, Lord Bassam of Brighton, who has carried a heavy burden, well supported by the noble Lord, Lord Bach, who, like a good second, has sponged him down whenever he looked like flagging and sent him back in the ring.
On Question, Bill passed, and returned to the Commons with amendments.