Lord Bassam of Brighton: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.--(Lord Bassam of Brighton.) On Question, Motion agreed to. House in Committee accordingly. 19 Jun 2000 : Column 12
[THE CHAIRMAN OF COMMITTEES in the Chair.] Clause 12 [Maintenance of interception capability]:
The Earl of Northesk moved Amendment No. 48A:
Lord Cope of Berkeley: I believe that Amendment No. 48A would be more powerful than my noble friend
suggests. Removing the words "it appears to him" and substituting the objective test places any court before which such an issue appears in a stronger position. Instead of the Home Secretary and his representatives having only to suggest that "it appears" to the Secretary of State, they would have to justify the case objectively. That puts more muscle behind the provision, and desirably so. As we shall no doubt discuss in a few minutes, the potential burden being placed on industry is extremely heavy. Amendments Nos. 48B and 49A appear eminently reasonable--and that is the word they seek to insert. While my noble friend moved them in a modest way, they are important in reassuring those in the industry and others outside about what is happening as regards the legislation. Amendment No. 50A stands in the names of noble Lords on the Liberal Democrat Benches. I do not want to pre-empt what they may say, but I believe that its object is to bring the interception of communications commissioner into the decision-making process. It is a way of ensuring that the commissioner can do this part of his job, and it is important that he should. If the Secretary of State alone, on the basis of what appears to him to be best, makes the arrangements, the commissioner may have difficulty fulfilling his responsibilities. None of us wants that.
Lord McNally: The noble Lord, Lord Cope, elegantly expressed the purpose of our amendment. We are not sure what the complete powers of the commissioner should be, but it is our plea that he should be given the technology and equipment to do his job properly.
At the start of our proceedings, perhaps I may take note of two press comments which might provide encouragement for the long hours ahead. I am afraid that we have not impressed Mr John Norton of the Observer, who believes that our work is sometime a cross between Gilbert and Sullivan and Kafka. All I can say to Mr Norton is that he is not alone in that belief. However, encouragement is to be found is Saturday's Guardian. According to an NOP poll, computer geeks are now considered the coolest kids in the class. Therefore, as we set off on another marathon sitting, I hope that some of that aura of computer geeks will rub off on some of us involved in the Bill.
Lord Bassam of Brighton: Famously, I am not yet a computer geek. However, I am trying and practising and my son is giving me good advice.
Amendments Nos. 48A, 48B and 49A have the effect of introducing reasonability requirements as additional factors or replacements to existing terminology in subsections (1), (2) and (3). Clause 12(1), as drafted, imposes a duty on the Secretary of State to ensure that any obligations placed on communications service providers (CSPs) to maintain an intercept capability are reasonable. In our view, the three amendments do not take the requirement any further. 19 Jun 2000 : Column 14
The Government have no interest in imposing unreasonable requirements on CSPs.
Initially, it is properly for the Secretary of State, after the consultation
process, to come to a decision on what is a reasonable intercept capability.
Looking at the amendments, we take the view that there is not much between us.
The Bill provides that the reasonableness is a matter for the Secretary of
State's judgment. The amendment appears to try to make that into a form of
objective test. But the concept of reasonableness implies a matter of judgment.
Because it is the Secretary of State who must make the order and give the
notices, it is inevitable and proper that he must decide what is reasonable in a
particular set of circumstances. I suspect that that would be the case even
under the noble Earl's amendment. As I said, I do not believe that there is a
great deal between us. Of course, the "reasonable" requirement in
Clause 12(1) is judicially reviewable and therefore the Secretary of State's
judgment can be challenged as to whether it is reasonable in the circumstances.
Amendment No. 50A aims to respond to concerns that some people have expressed
relating to the practical difficulty for the interception commissioner in
carrying out his duties in the face of what we would all agree are considerable
technical complexities relating to interception systems. The commissioner's role
in that regard is clearly important and any difficulties he encountered in
checking the use made of the system would be of tremendous concern to us all.
It would therefore seem sensible to include in the Bill provision for notices to
specify or describe a requirement along the lines of the amendment. I trust that
noble Lords will be patient with us while we consider how best to word it. We
take the point made in the amendment and I can give an assurance and a
commitment today that we shall give the issue careful consideration and return
to it at Report stage.
I hope that in view of my comments and the commitment I have given, the noble
Earl will consider withdrawing the amendment so that we can better consider
Amendment No. 50A in particular.
I cannot speak for the Liberal Democrat Front Bench, but I am not wholly
convinced by the Minister's response to my amendments. If, as he says, there is
little between us, that implies some empathy with my purpose. I have no wish to
bring the matter back at a later stage and therefore would like to seek the
opinion of the Committee.
The Earl of Northesk: My reason for wanting to divide the Committee is that, although the Minister was very charitable with the Liberal Democrat Front Bench amendment, I felt that he was less than charitable with my own. I have no wish to pursue this matter at a later stage in our proceedings and, therefore, I still wish to seek the opinion of the Committee.
On Question, Whether the said amendment (No. 48A) shall be agreed to? Their Lordships divided: Contents, 64; Not-Contents, 121.
Resolved in the negative, and amendment disagreed to accordingly.
[Amendment No. 48B not moved.]
Lord Cope of Berkeley
moved Amendment No. 49:
3.30 p.m.
Page 14, line 13, after ("State") insert ("and
the Technical Approvals Board").
The noble Lord said: These amendments address one of the most important issues
in this very controversial Bill: the huge potential burden to be placed on
industry, commerce and finance.
The burden does not just fall on Internet service providers and those in the
middle of dealing with such services, but rebounds on every company that uses
the Internet for business, which means every significant company in our
economy. This is not just a technical
19 Jun 2000 : Column 17
The Home Secretary and others who support the Government keep telling us not to worry because such fears are over the top. They tell us that nobody thinks that all Internet service providers should be covered by the provisions. On the contrary, they think that the Bill will be very selective and that far fewer people will be affected than is being made out. They say that there is a lot of scaremongering going on, but in the Bill the Home Office asks Parliament for an all-embracing power to get at every e-mail that passes through this country. The Home Office goes on to say that the United Kingdom is ahead of practically every other nation and that we are tightening up more strongly and more quickly than others, as if that were something to boast about. It is very important to look at the issue in the international context, because there is nothing more international than the Internet. It is worldwide and instantaneous and enables people to move their businesses and take their transactions and communications elsewhere very easily. It is important that every country does its best to find a way of catching criminals who use the Internet--both those who use it in a specific, electronic way, with what one might call new types of e-crime, and those who use it for crimes that we are perfectly used to. The Internet is capable not only of making business more efficient, but of making crime more efficient. It is important to address the problem and move forward alongside other nations, but we should not make our companies--not just our e-companies but all our companies--uneconomic and uncompetitive. The central problem is the indiscriminate nature of the power. It is a bit like a problem that someone once suggested to me involving strawberries. A government inspector might come along to a farm and say "There are grubs in some of your strawberries, but don't worry because we have found a spray that opens up the strawberries and allows us to see where the grubs are, so we propose to spray all your fields of strawberries". Of course, that will ruin the whole crop if they are not careful, and it is no good saying "Ah, but there is a fence round the field and we are not going to let other people in to look at your strawberries". If people think that all the Internet is going to be opened up, they will not do business in this country. Plenty of evidence has emerged in the past few weeks of people already making such plans in connection with the Bill. There is also some doubt about how it will be technically possible to have a reasonable interception capability for communications over the Internet. I am a humble user of the Internet, e-mails and the web, not a technical expert, but I have talked--electronically and more conventionally--with those who know a lot more about the subject than I do. It is clear that the technical difficulties are very large. However, it is also 19 Jun 2000 : Column 18
clear that today's technical difficulties are not the same as those that will be around in 12 months, two years or five years.We have seen in the past few years that technology changes very rapidly. We all know of the huge changes that have taken place, and they are speeding up rather than slowing down. That means that the technical capability to intercept communications reasonably, as we would all wish, will have to change rapidly in a short time. In those circumstances, the balance that the Home Office keeps talking about can best be kept by closely involving the Internet community--those who are on the receiving end of the controls--together with what I can loosely call the security community, which includes the police, the security agencies, Customs and Excise and others who need the interception capability. The Bill refers to consultation. Various bodies have met to look into how the interception is to be achieved. That is fine--indeed, it is desirable--but it does not go far enough. We are dealing with a serious issue: the need to find a balance between the efficiency and competitiveness of all our industry, commerce and finance, the reasonable protection of citizens and the ability to fight crime. Parliament should consider establishing a statutory board to continue looking at these matters. The board should not just be a one-off but should continue to work as technology changes to achieve the desirable end of fighting crime without the undesirable consequences of stopping business or interfering with privacy. The immediate proposal in this set of amendments is for a technical approvals board. I am not particularly fussed about the name nor, indeed, about the other details of the board. It is the principle behind it which I am anxious to press this afternoon. The particular proposal which is in Amendment No. 54, in the form of a new clause, is that there shall be six members appointed by the Secretary of State as representative of persons likely to be subject to and affected by the technical obligations of the Act. So, the board will comprise not only those persons who are subject to these obligations--the Internet service providers--but also those affected by them--the companies which use the Internet. Six members of that character should be appointed to the board and six members appointed by the Secretary of State who, as the amendment provides, are representative of persons specified in Clause 6; that is, the police, security services, Customs and so on. The amendment provides also that the interception of communications commissioner, or someone appointed by him, should preside over the board which should have the power to commission such expert advice as it deems necessary. That is important too. That is the board as it is set out in the new clause. But, as I say, I am not absolutely sold on every detail. It is important that there should be a statutory body of that kind which can bring together on a continuing basis in the future those difficult considerations which need to be brought together. 19 Jun 2000 : Column 19
Once the initial order under which the Secretary of State would issue notices to individual Internet service providers has been made, the technical approvals board would, under Amendment No. 53, report to the Secretary of State its conclusions as to whether the obligations imposed in the suggested order will achieve their proper purpose; are proportionate to that purpose; and will achieve that purpose also without compromising the security of communications not covered by an interception warrant. That last point is important because one of the difficulties, as I hope my analogy with the strawberries indicated, is that quite apart from the communications of criminals or suspected criminals, which are to be targeted by all this, many innocent communications will also be opened up. That is not so with telephone tapping, for the most part. Under the present law, a warrant can be issued by the Home Secretary and the telephone of an individual suspected criminal can be tapped and his outgoing and ingoing communications can be listened to in accordance with the warrant and for the purpose for which that is necessary. However, that is not the position with the Internet. All sorts of other communications are likely to be exposed too. Their security is of the first importance. That is why that provision is suggested in Amendment No. 53. As I said, we can argue further about the details of this matter. But it is important that a statutory body should exist which is in a position to make recommendations to the Secretary of State. Ultimately, the amendments still leave the responsibility with the Secretary of State; for the Secretary of State to lay an order before Parliament; and for Parliament to approve it. But better regulations and orders would be put before Parliament and before the Secretary of State if the amendments were accepted and such a board were established. The amendment does not solve the whole problem. It does not get away from the technical difficulties. But it attempts to set up a means by which the technical difficulties can be measured by the experts who must operate the system against the desirable aims of the police and other security authorities. I beg to move.
The Chairman of Committees : As Amendment No. 53 is also being spoken to, I should point out to the Committee that there is a mistake in that amendment as printed. In line 3, "subsection (1)" should read "subsection (7)".
Lord McNally: Just in case those on the Conservative Benches have another rush of blood to the head, if a Division is called, we shall support the Government. But before those on the Government Benches become too ecstatic, I should say also that if the Government's reply to this debate is not suitably constructive, we shall consider pressing this matter very firmly indeed on Report.
The noble Lord, Lord Cope, has put his finger on the central dilemma that we have in dealing with this Bill. As I believe I said on Second Reading, it is quite clearly a pantomime horse of a Bill. It is a regulatory Bill dealing with old post and telecommunications legislation and it is a regulatory Bill to deal with the new world of e-commerce. The e-commerce part of the Bill is extremely difficult for Parliament to deal with. Mr John Norton thinks that we are "boobies" dealing with this matter. Again, at the beginning of our proceedings, I said that it might have been better had we resolved into a Standing Committee which could take evidence from the experts. It is very clear that many of the matters which we are discussing and the powers for which the Government are asking need "future-proofing" so that we do not pass legislation which is almost immediately out of date because of changes in technology. I must say, too, that I am rather worried about the Home Office assuming regulatory powers over business in that way. Again, one's suspicion is that it was too hot for the DTI to handle and the good old Home Office, fulfilling its Lord Mayor's Show role, comes along to sweep up this matter. Certainly, the Home Secretary has become extremely tetchy with business. Not only has he fired off letters to the Financial Times, but there have been extensive and detailed briefings about how much industry is over-egging the pudding and exaggerating the costs and burdens. If the Home Secretary has friends in the e-commerce industry who are genuinely expert on the implications of the Bill and who agree with him that the costs and burdens are reasonable, those friends had better speak up fairly quickly because the array of informed business opinion against the Home Secretary is considerable. This House should seriously take account of that. Also, the noble Lord, Lord Bassam, and Ministers in the other place have promised that they are in listening mode. Again, my advice to them, before we reach Report, is to get alongside the industry--those in the industry have a number of reputable umbrella bodies to which they can talk--and to get the industry to say what are reasonable burdens, because then the criticisms of these Benches in relation to cost will melt away. However, I do not think it is enough for the noble Lord, Lord Bach, simply to look irritated from a sedentary position when every informed source in e-commerce says that the burdens are too much and that they will have long-term damaging effects on our hope of becoming a world centre for e-commerce. That is a serious charge which the Government must treat seriously and answer if they are not to find that this House lacks confidence in this legislation. The suggestion of a technical approvals board has considerable merit. For the same reasons, I am extremely worried about the Home Office taking on judgments without proper and expert help, not least because, as was mentioned by the noble Lord, Lord Cope, we are trying to deal with a rapidly changing, 19 Jun 2000 : Column 21 highly technical industry. The technical approvals board is a reasonable and practicable suggestion for "future proofing" the legislation. Today, we on these Benches, are in listening mode. However, we hope that the Ministers and the Home Office take seriously our belief that in this matter there is a case to answer.
Viscount Goschen: I support the amendments moved and spoken to by my noble friend Lord Cope. There seems to be little difference of view among all parties who have contributed to this and previous debates in this Chamber and, indeed, among independent commentators and figures from industry about support for the objectives of the Bill.
We all want to prevent crime on the Internet and ensure that the Government have
at their disposal the maximum tools reasonable to combat the sort of hideous
crimes that we have seen and heard about taking place on the Internet. I do not
believe it is possible to do that efficiently without the support of the
industry. However, it is clear that high levels of concern are being voiced from
all quarters within the industry.
Industry knows more about e-commerce than do the Government, and will continue
to do so. As has been stated, the technology is moving extremely fast; faster
than the time it will take for the Home Office to consider all the implications.
I would also suggest that the competitive balance within this new industry is
changing extremely rapidly. National borders present one of the interesting
challenges faced by the Internet. Clearly, this is an international industry and
an international solution needs to be found.
The amendments tabled by my noble friend do not claim to solve the problem.
However, they go some way towards allowing industry a statutory position to
contribute to the debate and to ensure that those who seek to regulate the
industry do not take precipitate action, or at least advise against that. In the
final analysis, the decisions will be with the Government.
I believe that industry genuinely wants to help. It does not want to be
associated with a pariah sector known to be a haven for crime. Industry will be
in the best position to ensure that government regulations can be made as
effective as possible. Clearly, the Bill poses a very real threat to the
competitiveness of the e-commerce industry of the United Kingdom. I support the
objectives of the Bill. However, mechanisms must be found to ensure that the
concerns of industry are minimised, its support garnered and the regulatory
regime made as robust as possible. I strongly believe that the amendment will
contribute to that.
My main concern is about the civil libertarian aspects of a blanket licence to intercept. I have been following the debate in the newspapers. I should like positive assurance that just as telephone tapping is used carefully and only under strict conditions, 19 Jun 2000 : Column 22
interception powers will be so used. It is alarming that employers can get away with reading their employees' e-mail. We are living in a country in which everyone can be hacked into by everyone else. If the Government were also to enter into that game, in possession of enormous powers, I would worry about the civil liberty aspects of the Bill.
Whatever the fate of this group of amendments, I see that the technical
approvals board will include industry representatives and security
representatives but no citizens representatives. I refer to ordinary users such
as myself--people who are not Internet service providers but who are worried
that their communications will be exposed. That is the first point on which I
should like to lay down a marker.
Secondly, there is the much more contentious problem of whether or not such
provision will mean an enormous cost to e-business. I have not read the report
published by my colleagues at the London School of Economics. However, I have
read the newspaper summary and heard the reply given by my right honourable
friend the Secretary of State. I am not satisfied with either. As the noble
Lord, Lord McNally suggested, we need expert judgment on whether the LSE report
is valid. If it is not valid, it is no good just saying, "It is
flawed". That sort of Oxbridge talk will not do. We need to know where it
is flawed, point by point. We need alternative estimates of cost, subject to
examination by an impartial evaluator, perhaps from abroad, who can tell us
whether we are correct. That is important.
I am not such a great admirer of self-regulation as I used to be. We have seen
the many mistakes made in the financial sector. I do not believe that e-business
should be self-regulatory in this respect. However, if costs are to be imposed
for such regulation, which is important for crime prevention, they should be
independently assessed.
Finally, I refer to technical progress. I believe that things will change
rapidly. In one sense, that cheers me up immensely. It means that if governments
are behind the times, any legislation will soon be obsolete and I will have more
civil liberties protected. However, unless we build in a provision to take care
of technical progress, we will be back here in two years' time with another Bill
of this kind. I hope we can prevent that.
Civil liberties have also been mentioned. I am concerned about medical confidentiality. I should declare an interest. I run a trust which sets up international tele-medical links using e-mail to help people who need expert medical advice in far flung corners of the world. Knowing that their medical details can be intercepted, seen and examined will not please a number of those individuals.
The Earl of Northesk: I support the amendments of my noble friends. Few of us involved in the legislative process have time to keep pace with our mailbags, let alone keep up to speed with technological change. It has to be said that many of us, from senior members of the Cabinet down, are honest enough to confess that, although we are full of admiration for new technology, we do not really understand it, and are content to leave it to our children to, as it were, programme the video recorder. Under no circumstances should we underestimate the problems and difficulties that this poses.
As the noble Lord, Lord McNally, has pointed out, the gulf between that opinion and the Government's is huge. The important point is that if business and the ordinary citizen, even governments, are to have faith in e-solutions, the associated burdens, particularly in terms of costs and security, have to be seen to be both accurate and proportionate. To my mind, this gets to the heart of why a technical approvals board is so necessary. In every sense it would ensure the proportionality and functionally of e-solutions from an independent position of technical expertise. That has to make sense. Having said that, I should now like to speak to my amendments in this group, Amendments Nos. 51A and 53A. With regard to Amendment No. 53A, in the event that the Government accept the wisdom of my noble friends' suggestion of a technical approvals board, it strikes me that their thoughts as to the practicality of obligations imposed by Clause 12 should, as a matter of course, inform the process; hence the amendment. Regarding Amendment No. 51A, Clause 12(6)(c) refers to,
Lord Lucas: I, too, support my noble friends' amendments. Clauses 12 and 13, its companion, are one of the very few parts of the Bill where the Home Secretary's decisions and activities are subject to no form of provision whatsoever. That is entirely unjustified, because this is one part of the Bill where the Home Secretary clearly needs a good deal of supervision. There has been a considerable display by the Government, and the Home Office in particular, of a lack of understanding of how telecommunications, and indeed computer systems, work. Working from my own personal beef that the government in three years of asking are unable to answer my Written Questions by e-mail, and looking at today's news that they have managed to lose 150,000 criminal records because they have not kept electronic back-ups, to looking at the Bill and the lack of understanding that it displays in so many places of the way that a modern communication system works, it is quite clear that in this aspect the Home Office needs supervision.
Business is quite right to worry when it is faced with costs of a magnitude that it can imagine when it is looking at a Home Office that does not understand what it is doing, a Bill which does not specify what should be done and which leaves the Home Secretary unadvised and unsupervised, and when business knows the complexity and rate of change of the systems that it is having to supervise. There is no longer any concept of location when it comes to messages. Once a message has left the local loop, it can be anywhere, even if you know it is going to end up in an ISP. An ISP does not have a route through that you can tap into; it has thousands of routes through, any of which can be used. There are no single points that you can tap into in any useful sense of the word. Point-to-point encryption may be employed anyway, and is only a year or two away generally. So even the addresses in the message may be encrypted and you cannot read them. The co-operation of the industry to make anything like this work is essential. The industry is faced with an immense and unguessable burden; and to avoid it all it has to do is to move its operations elsewhere. I run a small e-commerce business. I happen to use an ISP in the UK. I could equally well use an ISP in Holland or Finland as long as it provided a large enough communications pipe into the UK. If the UK is going to provide burdens and an extraordinary lack of security compared with other countries in the 19 Jun 2000 : Column 25
world--we shall come to this later--I am hardly likely to want to do my business in the UK. Certainly, multinational companies, which are known occasionally to sin, will not want the Government to know everything that they are doing, and will have a strong incentive not to place their core business with UK ISPs. This is an area where the industry has every right to ask for, and to expect, reassurance in the operation of the Bill, to know that the decisions that are being taken are being taken in co-operation with industry, and are being taken reasonably. Customers should also know what is being done to make sure that communications for which there is no warrant are safe, and that they are not going to turn up on someone's desk just because when looked at they happened to contain some interesting information.
Lord Phillips of Sudbury: I merely want to add the thought that the technical approvals board that is referred to in a number of these amendments, and which seems to us to be a good addition to the collection of protections under the Bill, might have on it a member of the civil liberties community, as well as, obviously, a plain majority of those with technical expertise. With technical matters in this field, I think that a civil libertarian component is apt. I put that thought to the Minister and the Committee for consideration.
Lord Bassam of Brighton: I have listened with great care to all that has been said in this important debate. The contributions made have been most helpful. The noble Lord, Lord McNally, was right to remind the Government that we need to continue to listen to, and to consult carefully, all the representative bodies that exist in the great "out there" on this particular subject. I refer to all the business and commercial interests. Other Members of the Committee reflected that point in their contribution. I think that it was the noble Viscount, Lord Goschen, who made the point that business enterprise actually understands, and is likely to understand, much more about these issues than government. That is very wise and sound advice. We have been listening very carefully, and even since our deliberations last week on the Bill, we have had further representations and have listened to more of the lobby who have been pressing us on this Bill and on this particular set of issues.
I think I can fairly make the point that there has been a lot of press criticism and it is only right that the Government should respond to those criticisms. The noble Lord, Lord McNally, said that we were overreacting to the criticism. But I feel that, between us, we have been able to generate a debate in public about this Bill. I am pleased that that is the case. When we put our arguments up against some of the allegations being made, we find that those allegations are disproportionate in their content. I understand the argument that sometimes one has to shout to be heard and I suspect that at this stage that is exactly what both sides are trying to do. But we have been able to focus down on the key issues and give further thought to them. For what it is worth, I believe that that has been most constructive. 19 Jun 2000 : Column 26
I turn to the detail of the arguments. With regard to Amendment No. 49 and related Amendments Nos. 52 to 54 in relation to the technical approvals board, I entirely agree that any requirements placed upon industry by Part I of this Bill should be properly considered and reasonable. That is an extremely sensible first point. But the Bill already provides for that. Both through responses to the consultation exercise and in subsequent discussions, industry representatives have let us know that they favour continuing the close working relationships which they already have with the Government in this field, without the need for the involvement of any additional body. Indeed, we are unaware which part of the industry is asking for a statutory body of the type described in the amendments. As yet no one has put that argument to us. Representatives of Internet service providers have made it clear that they would favour a non-statutory advisory group, much along the lines of the arrangements which we already have in place with telecommunications operators. They have been saying to us loud and clear that they want a set of voluntary arrangements of that sort. They have neither been asking for nor demanding a statutory technical advisory body. I can say to the Committee that discussions are extremely well advanced on that topic with an existing group already identified as being potentially suitable. I am aware also that other groups have indicated their willingness to continue consultation on reasonable intercept capability--for instance, the Alliance for Electronic Business--and I welcome those offers. In response to the AEB's specific question on this topic, I can confirm that any order made under Clause 12 will only impose obligations based upon the best available options at reasonable cost. That formulation forms a significant part of our continued discussions. In relation to Amendment No. 50, I cannot see how the introduction of a proportionality test would assist in judging the interception provision which a communication service provider may be required to set up. After all, the requirement will not be judged against any particular case. The purpose of the intercept capability is to ensure that the CSP is capable of intercepting communications when required. So the proportionality could only be judged against the general purposes for which interception may take place--for example, serious crime, national security and economic well-being--which would be the same in every case, effectively rendering the test meaningless. But there is the question of whether it is reasonable to expect a small ISP, for example, to set up an intercept capability when there is minimal chance of the capability ever being used. That duty is already placed upon the Secretary of State at Clause 12(1). I turn to Amendment No. 51. We believe it is entirely right and proper that users of communication services--the general public--should have the opportunity to offer their opinion on the use of interception and the circumstances in which it may be deployed as suggested in two of the amendments before us. They have been given that opportunity 19 Jun 2000 : Column 27
during the public consultation exercise which took place last summer, and will have the opportunity again when the Government consult extensively, as we have promised, on the code of practice.But Clause 12 is not about the principle of interception; it is about the practice and technical aspects of that process. It is difficult to see what the general public will be able to add to that. That is why we have restricted the requirement upon the Secretary of State to consult with those who will be able to make a meaningful contribution to the draft order. That is not to say that the process will be conducted in secrecy; far from it. The draft order will be placed on the Home Office website for all to see. But it is important to draw this fundamental distinction between whether or not interception should take place and the practical arrangements which come after that decision is made. I believe that users of communication services have already made their views clear on the former and that it will be up to those who understand the technicalities of the latter to contribute to the order-making process. I am surprised at the amendment of the noble Earl, Lord Northesk, which seeks to remove subsection (6)(c) of Clause 12 from the Bill. We consider that we should consult with all appropriate parties. In that sense the wording is enabling rather than, as it were, a closing-down facility in the way in which the legislation is drafted. We therefore consider it to be entirely appropriate that an obligation should be placed upon the Secretary of State to consult with persons who have statutory functions in relation to communications service providers. We have in mind such bodies as Oftel and the Department of Trade and Industry. I should have thought that there would be reasonably common agreement on that point. In his Amendment No. 53A, the noble Earl, Lord Northesk, wishes to include reference to the technical approvals board in subsection (8), and the fact of whether or not a person is capable of providing a reasonable intercept capability. I have already discussed at some length why the Government do not see the necessity of a technical approvals board set up in the way envisaged by the Opposition and we cannot accept that amendment. Amendments Nos. 89 and 90 require all the requirements for data not already in existence to be first approved by a technical approvals board. It is important to explain that the effect of the framework which this chapter of the Bill establishes is to formalise in law the arrangements which have been in place for many years and which have been developed through the ACPO Telecommunications Group, which is a joint law enforcement communication service provider body. There are already in place service level agreements, contact points, designs of forms and so forth. They include agreements between parties as to what data is capable of being provided and the levels of sensitivity attached to specific techniques. So there is no question of a law enforcement body suddenly requiring whole new types of data to be collected without consultation and agreement. That point is 19 Jun 2000 : Column 28
dealt with in the Bill at Clause 21(7). That should be a reassurance to industry and was included very much at industry's request.We need to consider also the times when future data is likely to be required; that is, during ongoing, often urgent operations--for example, to find out where a kidnapper is calling from. That type of requirement would relate to the data which the communication service provider is capable of providing but has not yet collected. To introduce another level of technical oversight in those circumstances will not assist; in fact, it may well get in the way. We are mindful of the unnecessary burden of additional bureaucracy that it might create, the time it would take to process and all the other existing aspects it may have to overcome. In those circumstances, we feel that the amendment is not necessary. The noble Earl, Lord Northesk, asked a number of questions, to which I now have the answer. First, he asked whether subsection (6)(c) meant subsection (6)(a). The answer to that is obviously yes. The noble Earl also asked whether the Secretary of State could get away with consulting no one under Clause 12(6). The answer is, only if he concludes that it is not appropriate to consult anyone, which could be a wholly perverse conclusion in the light of the duty imposed by this subsection. Therefore, in practice, the answer is no. The Secretary of State will not get away with consulting no one. In those circumstances, we would expect him to do so--
The Earl of Northesk: That was precisely my argument. What on earth is the point of having the words "as he considers appropriate" in the clause if they give him a "get-out" for something that he would never do?
Lord Bassam of Brighton: As I said, the wording is an attempt to try to introduce some flexibility. It is not a closing-down manoeuvre or an attempt to be unhelpful.
I believe I dealt quite fully with the points raised during the debate, as well as some of the issues. We understand the arguments that have been made. But the question upon which the Committee needs to focus is whether the industry wants it. The answer that we have received consistently on that question is, no. However, the industry does want a low-cost but flexible advisory body that is not statutorily based. That has been made very clear to us throughout our discussions. We are happy to continue with those discussions. We shall be happy to formulate the operations of the technical discussions, but industry does not think that it is essential, right or necessary for us to have a statutory technical advisory body. In view of that fact, I invite noble Lords who have tabled these specific amendments not to press them this afternoon. Clearly we can continue in our discussions with industry on such issues, but the latter has made its view crystal clear to us. 19 Jun 2000 : Column 29
Lord Phillips of Sudbury: Before the Minister sits down, perhaps I may assist both him and the Committee by asking the following question regarding his final point on discussions over an advisory committee. If the advisory committee comes into existence, can the noble Lord say whether those discussions will be confined to generalisations or whether they will extend to specific cases where the Secretary of State was contemplating making an order under Clause 12? If those discussions were to extend to particular cases--in many ways that would be the most helpful role that an advisory committee might lend to a Minister--I suggest that legal problems may well arise as regards having a non-statutory body in that role.
Lord Bassam of Brighton: It would be unusual for that role to include discussions on specific cases. I think it would be possible for some more generalised discussion to take place on the application of the Secretary of State's powers. However, as regards specifics, I should be very wary of that because of the point made by the noble Lord. I should certainly want to take further advice.
Lord Lucas: The Minister mentioned Clause 21(7), so perhaps he can clarify a matter in that respect. Can he say whether that clause rules in or rules out an instruction by the Secretary of State that an ISP shall design its system so that it is convenient for tapping; in other words, so that it pushes its outflow, say, through one convenient tapping point? Alternatively, would that be prevented by this clause? What level of interference with the ordinary structure and operation of an ISP is ruled out by the clause?
As I said before, there are very few clauses in the Bill under which the
Secretary of State's actions are not subject to any form of supervision. I have
in mind in particular the point raised in the last two lines of Amendment No.
53. We are looking at an interception capability here that is essentially "unauditable".
Once an interception capability is in place, there is no way that anyone can
know what it has been used for unless some very strict controls are put in
place. It seems to me important that the Secretary of State's activities in this
area should be closely controlled. They are certainly as dangerous to public
liberty as any of his other activities specified elsewhere in the Bill. I do not
see why these two clauses have been left out of the ambit, say, of the
interception and communications commissioner.
Lord Cope of Berkeley : The Minister started by saying that the Government had been listening. If that is the case,
the way that the volume of criticism of the Bill generally, including this provision, has been growing strongly in recent weeks seems to me to be remarkable. I pointed out to noble Lords only recently that interest in this Bill a few weeks ago was mainly, though not entirely, confined to the e-community; that is to say, those who felt themselves directly affected. However, a striking part of the events of recent weeks has been the way that that concern has stretched way outside the e-community to encompass a much larger section of industry, commerce and finance.The next important comment that the Minister made was that the Internet service providers to whom he has been talking had been asking for voluntary arrangements rather than statutory arrangements along the lines suggested by this series of amendments. I do not doubt that the noble Lord correctly represented the discussions that have taken place. It is obvious that service providers and their organisations would in the first instance be looking for voluntary arrangements for a voluntary advisory board. However, I do not believe that they would necessarily be satisfied with that as time went on. We all know what can happen with voluntary advisory boards; indeed, there are vast numbers of them in government advising the Government on all sorts of matters and many of them have very little authority. They are rather like people standing outside the windows of the Home Office shouting at the building: sometimes the windows are open and what they say appears to go in but sometimes it simply bounces back. In a matter of such importance--we all agree that this is of high importance--I do not have much confidence that voluntary arrangements of this kind would be satisfactory in the long run, given the speed of developments that applies to this sector. Therefore, a statutory board of the character suggested is much more desirable. Amendment No. 50 is the "proportionality" amendment, if I may so describe it. The Minister seems to think that it would be impossible for the Home Office requirements under the clause to lead to black boxes being fitted. He finds it impossible to believe that such requirements could possibly be out of proportion to what they are intended to achieve. That is obviously wrong. The requirements for black boxes are quite capable of putting British ISPs out of business entirely, or almost entirely, by comparison with their foreign competitors. That would certainly be out of proportion. I do not suggest that that is what would happen, but the row would be enormous and the Government would have to back off at that stage. Therefore, it would be much better for them to do so now. It worries me that the Minister should think that there is nothing that the Home Office could do that would be out of proportion to this need. There has been some discussion throughout the debate about adding representatives of the public to the board--a point made by the noble Lord, Lord Desai. I sympathise a little with the Government on that point. Clause 12 concerns technical aspects. The Home Office representatives on the board, and the Home Secretary in considering whatever the board 19 Jun 2000 : Column 31
says, will need to keep that in mind. I envisage the discussions being highly technical on methods to be used and what they would achieve. This is a technical clause, as the Minister said.
Lord McNally: We on these Benches responded favourably to the suggestion of the noble Lord, Lord Desai. Members of the public and members of civil liberties groups have considerable technical knowledge. There is another dimension of concern, as it were. The use of this technical knowledge by some in private industry is causing concern. I refer to spying on employees and so on. It might be reassuring therefore to have an element of lay membership, as it were, on the body as well as government and industry.
Lord Cope of Berkeley: I accept that. Provided that such a process did not disturb the technical nature of the board's deliberations, I do not think that it detracts from the idea behind the amendments.
Lord Desai: When I hear that experts and government will come together to look after my interests I become slightly suspicious. I should like to have one lay representative, as it were, looking after my interests, no matter how technical the subject matter. That is exactly how these situations arise. Someone says, "This matter is too technical for citizens. They should not be involved." However, I want one such representative.
Lord Cope of Berkeley: As usual, the noble Lord is persuasive. We all react in the same way as regards experts controlling aspects of our lives. However, he also betrays his distrust of the Home Secretary who has the ultimate word on this matter.
Lord Lawson of Blaby: I am grateful to my noble friend for giving way. This whole matter confuses me considerably, not least the position of the Liberal Democrats who say that they totally support the introduction of this board and that is why they will vote against it!
Lord Cope of Berkeley: I agree with my noble friend on that point. If I am asked to give my credit card
number over the Internet to purchase something, that still slightly worries me. I do it because it is convenient. However, in doing so, one places immense trust in apparatus which one has little knowledge of. There is a link between the concerns of the civil liberties groups on the one hand and those of bankers, traders and commercial people on the other. I cannot say that I am pleased with the Minister's response as he poured much cold water over, and resisted, the amendments. I believe that they are worth further consideration. We shall certainly give them further consideration even if the Government do not wish to do so. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 49A to 53A not moved.]
Lord Bach: I beg to move that the House be now resumed.
Moved accordingly, and, on Question, Motion agreed to. House resumed.
House again in Committee on Clause 12.
On Question, Whether Clause 12 shall stand part of the Bill.
Clause 12 agreed to.
[Amendment No. 54 not moved.]
Clause 13 [Grants for interception costs]:
Lord Lucas: My Lords, I shall speak to Amendment No. 57. Why should not the Government pay for the interception equipment? They will get the benefit of it, and through them we will all get the benefit of it, so why should not we pay for it? Why should the ISPs pay for it? There seems to be no reason why the unquantified burden of this possibly very expensive interception equipment should fall on ISPs. I propose that it should fall on the Government instead. After all, they are specifying what the equipment should be, so logically they should take responsibility for the cost.
There is no reason for anyone in this country to use an ISP in this country. All that we need is some form of communication leading to wherever in the world the ISP may be that is fast and broad enough to take the data rates that we want. If we impose significant costs on our ISPs beyond those that have to be borne in other countries, the business will move overseas. It is not a high margin business. It is a very competitive business and there is no reason for it to stay in this country if companies have to face higher costs and, as a result of this and other aspects of the Bill, offer lower security. In a part of the Bill where such provision is not adequate, the amendment would also be a useful constraint on the ambitions of the Government. If they have to pay for the equipment--which, given the pace of technological change, will be out of date in a couple of years--they may think twice before they go overboard on interception capability. Under the Bill, the Home Secretary's activities do not have to be visible to anyone else. My amendment would at least provide some measure of rationality and reasonableness to ensure that what he is up to stays within bounds.
Viscount Goschen: I share the concerns expressed by both my noble friends who have spoken to their amendments. It is clear to all of us that there is the potential for a major burden to be imposed on industry, although there is considerable dispute about the cost of that burden on a snapshot basis if the Bill were enacted now. The Government have come up with a relatively low figure, in the tens of millions of pounds, and industry has produced a figure in the region of £650 million. It is right that the Government should come under pressure to explain how they arrived at their figure and on what basis they disagree with the higher figures put forward by industry.
However, that is relevant only up to a point. As my noble friend, Lord Lucas, said, as time goes on, new technologies will require new monitoring equipment. We do not know what that equipment will be or what it will cost. It is right for the Government to be put under pressure to avoid spending industry's money willy-nilly. They should at least recognise that if they impose a major burden on industry, there should be a direct link with the Government. The Bill is very loosely worded. To say that the Secretary of State should make such payments as he considers
Baroness Thornton: My Lords, I have listened to many contributions during this Committee stage. I am struck by a recurrent theme in the opposition contributions. They keep saying that they do not want any change and they do not think that the industry should bear any responsibility for the change.
Viscount Goschen:
My noble friends can defend themselves, but I have never heard anyone from the
Opposition say anything of the sort. There is a widespread consensus that
something needs to be done. The Bill has the right intentions, but the devil is
in the detail. We cannot ignore that. We are facing the possibility of creating
legislation that will not work.
Baroness Thornton: I thank the noble Viscount for that, but I should like to develop my argument. The Opposition agree that something should be done, but not this. Those in the Internet industry say the same. I am concerned about the creation of a safe environment in the industry. Those who speak on behalf of the industry in this House are not telling the companies that they have a civic responsibility. They must take these issues seriously rather than simply
acknowledging the need for change but asking for a different sort of change. The industry must say what it wants. If the industry took its civic responsibility seriously, it would be applying itself to solutions instead of always saying that any proposals were not what was required. I am reminded of arguments we have heard about safe food. We expect those who supply our food to provide safe food. It is reasonable to expect those who supply us with our Internet services to take some responsibility for providing a safe industry. The Government are clearly recognising their responsibility and making a contribution. I wish that I could hear a recognition from the industry that it has a responsibility to give us a safe Internet.
Lord Phillips of Sudbury: My Lords, maybe I can give some minor solace to the noble Baroness. She is unfair to the Conservatives. There is a spirit of acceptance of the measure and we are acting as a revising House, trying to improve it.
There may be a via media between the absolutism of the amendment in the name of
the noble Lord, Lord Lucas, which would put the full cost of the operation of
equipment on the Government, and the position adopted by the Home Office
Minister in the House of Commons, Mr. Clarke, on 6th March, when he mentioned a
government contribution of £20 million. There is bound to be some special
pleading from the industry, but from what we have heard £20 million does not
seem like a reasonable compromise for the costs incurred by companies in
undertaking the duties thrust on them by the Secretary of State.
Lord Phillips of Sudbury: I am grateful to the Minister for that information. Nevertheless, that seems to be a conservative amount. I was going on to say that in the USA, under the Communications (Assistance for Law Enforcement) Act--an even more unwieldy title than that of this Bill--the government provide 500 million dollars.
Perhaps I may add in defence of the amendments being put forward here that that is not on all-fours with the health and safety situation governing food supplies, for example, where, plainly, the supply of hygienic food and safety equipment is something to which the consumer is entitled. In this circumstance, the state is asking an industry, which happens to be in a milieu where fraud, crime and terrorism uses its own instruments of proper commercial activity, to bear some of the costs of the state protecting us--drawing it into the policing system. In broad terms, that seems to me a proper situation in which industry 19 Jun 2000 : Column 57
can ask the state to come some way towards meeting the costs which it must incur because of the requirements of the Bill.
Baroness Thornton: Does the noble Lord accept that it is in the industry's best interests to create a safe environment?
Lord Phillips of Sudbury: Of course I do, but I think it is rather tough to say that it is in the interests of the industry to stop terrorism. The industry has no more interest in stopping terrorism than lawyers or fishmongers. That applies to paedophilia too. As I said, it happens to be a milieu in which those wickednesses traverse their own systems. I believe that there is a difference as regards the analogy which the noble Baroness drew.
On these Benches, we are entirely supportive of Amendment No. 55 and I regret to
say that we are dubious about the absolutism of Amendment No. 57.
Lord Blackwell: I support the spirit of the amendments proposed by my noble friends. As this is the first time that I have intervened on this Bill, I should declare an interest in a number of companies which have interests in this area.
Does the Minister accept that the costs referred to are unlikely to be one-time costs incurred at the moment at which the order is imposed? Because of the ongoing nature of technology development, ISPs, telephone companies and others are likely to incur costs every time they update or develop their systems or introduce a new transmission technology or new encryption technology. Therefore, the costs which companies may face will stretch out as a stream going into the future. In fact, because of the complexity of such matters, those costs are likely to increase. 19 Jun 2000 : Column 58
Recognising those additional dimensions, the Government need to find some way of ensuring that those costs do not become penal on the industry.Lord Bassam of Brighton: I am grateful to all those who have contributed to the debate because--I pick up the point made by the noble Viscount, Lord Goschen--it is right that the Government should come under pressure on this to make sure that their arguments and figures stack up and that they should come under some scrutiny.
Perhaps I may try to pick up the points which have arisen as a by-product of the discussion. We are conscious of the fact that there are very real questions relating to costs which may be incurred in providing interception capabilities. We are extremely conscious also of how those costs may be apportioned between government and industry. As I understand it, Amendment No. 55 suggests that the Secretary of State "shall" make payments to communication service providers rather than that he "may" do that. The intention behind the amendment is to require the Secretary of State to meet costs incurred both in effecting individual warrants and in maintaining a reasonable intercept capability under Clause 12. I would argue that, as drafted, it does not quite achieve that because it leaves a considerable amount of discretion for the Secretary of State. But the intention is clear and we must respect the intention. Members of the Committee will wish to note that the Government introduced an amendment in another place, which was accepted, setting out their continuing commitment to the payment of marshalled costs. Those marshalled costs are incurred by the communications service providers in respect of processing each individual interception warrant--the ongoing costs. Those include the costs of staff and overheads and cover the cost of transporting the intercept product from an agreed hand-over point, normally within the CSP's own network to the intercepting agency. All those costs are currently, and will continue to be, met by the Government. I do not accept that it is necessary at this stage to go any further than the commitment which we have already given. On that basis, I hope that the amendment will be withdrawn. But our commitment is clear. We introduced that amendment in the other place. We understand the issues involved. The costs will cover other matters, such as staff and overheads and the costs of transporting the intercept product. So we have gone quite a long way already in that regard. I turn to the amendment in the name of the noble Lord, Lord Lucas. It was described by the noble Lord, Lord Phillips, as "absolutist", and I believe that that is a fair description. The amendment refers to how the costs of maintaining a reasonable intercept capability shall be apportioned between government and industry. The noble Lord, Lord Lucas, wants to see a categorical statement on the face of the Bill stating how those costs will be apportioned between government and industry. That is an unusual and novel approach which the Government cannot accept. 19 Jun 2000 : Column 59
Clause 13 bears close reading. As it currently stands, it permits payments to be made by the Secretary of State and it imposes a duty to contribute to marshalled costs in some cases. Exactly what those payments should be will be decided after we have gone through the consultation process with industry, to which I have referred on many occasions. To assist that consultation process, we commissioned a report known as the Smith report. No doubt many Members of the Committee will have heard of it and read it. That report has been produced by independent consultants to look at the whole business of cost allocation in some detail. In a sense, it is part of the debate about how high those costs may be--whether £600 million, according to one tranche of argument, or £20 million in another. As I stated earlier, that consultation exercise will lead to secondary legislation by means of an order to be laid before Parliament. I can offer some assurance to Members of the Committee that the allocation of costs will be addressed very clearly in that order. We shall make sure that there is more than adequate time, proper time, to take a detailed look at the issue. But I am happy also to tell the Committee that we shall take that opportunity to confirm again that the Government will contribute to costs and that we shall not impose any unreasonable burden on industry. Exactly how much we will contribute will have to be debated in detail--the devil is in the detail in this instance--when, after lengthy consultation, we introduce secondary legislation. We shall have the opportunity to talk to industry in the build-up of time to that secondary legislation. We shall consult in detail on the way in which it will work and will bring forward secondary legislation. We shall have the opportunity to give it further scrutiny in this Chamber and Members of the Committee will be able to go over it again. There will be ample opportunity for people to get to the root of the costs. Legislation does not necessarily make it easier and facilitate detailed consideration. It is worth stressing that we are not setting out on a grand scheme that has not before been undertaken. For many years now, telecommunication companies have been required to maintain an intercept capability and have had to share the costs of so doing with the Government. I believe that it is also the case that many ISPs have begun to share the costs with Government in the current situation. This is not something new that we are demanding of business or the industry. It has not suddenly been dreamt up; it is already in existence. At this stage of the development of the legislation I understand that there is some nervousness. I understand the concerns of industry in that regard. However, we believe that they are not well founded. Many Members of the Committee referred to the fact that there has been considerable debate about the degree of cost. We think that it is about right in the regulatory impact assessment undertaken by the Cabinet Office. Even the CBI described the figures in the BCC report as alarmist. I have no doubt that the CBI is well informed in its approach. If one looks at the history of the PTOs, they have been meeting 19 Jun 2000 : Column 60
capability costs for the past 15 years or more, providing interceptor capability at their own cost. No PTO has gone out of business as a result. We take the view that we have struck a reasonable balance and that businesses have always managed to meet a reasonable solution.
The noble Lord, Lord Blackwell, asked a question, the answer to which is along
the lines that we will be looking to future costs but will start from
designing in from the outset cost minimisation. That is the whole approach
that will inform our strategy in this regard.
In summary, we think we have the balance about right. We believe that the
consultation and secondary legislation process will flush out cost. We think
that we can meet the reasonable costs on the face of the Bill. Clause 13(3)
provides flexibility for the Secretary of State to address the costs issue and
make a contribution. We need to get that balance right. We have no intention
of pushing unreasonable costs on to the industry. We do not want to frighten
it abroad. At this stage, we have no evidence that people will be frightened
off from setting up and maintaining their businesses in the United Kingdom;
far from it. We think that it will add extra confidence to the industry.
For those who have been critical of us, saying that we are forging ahead
without other jurisdictions taking an interest, that simply is not true. My
attention has been drawn to the fact that the standards we wish to adopt have
been adopted by a number of member states of the European Union in the council
resolution of January 1995. Those standards have been subsequently adopted by
the governments of Canada, Australia and New Zealand. As the noble Viscount,
Lord Goschen, aptly and ably expressed, we are working in an international
field. However, we are not working on our own. We are all moving in the same
general direction. It is against that background that the legislation we are
setting up has to be seen.
I trust that in view of the comments I have made this evening, those Members
of the Committee who have moved the amendments will feel able to withdraw
them.
Lord Bassam of Brighton: In general terms we have accepted the findings of the Smith report. That level of detail is a matter which we shall consider throughout the process of bringing together the consultations and framing the secondary legislation. That is how we see things working out. In general, we accept the Smith report. It has provided us with useful background and will inform the way in which we proceed.
I need to correct a remark I made earlier to Members of the Committee. I might have suggested--I do not think I said it directly--that we might already be meeting some of the ISP intercept costs. That is not 19 Jun 2000 : Column 61
currently the case because it is not covered by the Interception of Communications Act. We do not currently cover those interception capability costs. However, that is an area which we are keeping carefully under review.
Viscount Goschen: Perhaps I may briefly pick up one point. The Minister said that he felt they had the balance about right. However, he gave the Committee precious little information about where that balance lies, and spoke in generalities. There are vast discrepancies between the figures talked about by the Minister on the one hand--I accept his caveat about the regulatory impact statement; as I understood it, he then went on to support that as being a good and sensible base case--and, on the other, the sort of figures talked about by the industry. For the Minister to suggest that the balance is about right and then give the Committee almost no information about where the Government thought that balance lies is asking it to make a large leap of faith.
On another point, I specifically asked the Minister whether he believed it would be possible for much of this business to be transferred overseas. I did not ask whether he had had any indication that that was happening, because the Bill has yet to be enacted. I asked whether it would be feasible for consumers here to use ISPs based overseas and therefore evade the impact. That, surely, is an important point to inform today's debate. Finally, perhaps I may pick up a point made by the noble Baroness, Lady Thornton. I apologise for intervening in her remarks. As far as I am aware, no one in this Chamber is speaking on behalf of the Internet industry. I certainly am not. Noble Lords speak from their own personal perspective. They might well have listened to arguments put forward by industry or parties such as the Minister. It is our duty to weigh those up. However, it is not the case that noble Lords, certainly myself and, I believe, my noble friends, are speaking in any way on behalf of the industry.
Lord Lucas: The noble Lord, Lord Phillips, made a good point and criticised me, as indeed, did the Minister, for being absolutist in the amendment. It was tabled in that form, as much as anything else, to draw out from the Government what their position was. In that it has not succeeded.
I share the criticism of the Government of my noble friend Lord Goschen. Even in describing the process which they will adopt, they have not given a hint of what will be their opening position in the discussions which, rightly, they will have with the industry on the meaning of the word "appropriate". I understand that the Government do not want to have something set down in stone on the face of the Bill. These discussions are always ones in which the particular has to be looked at and a fair amount of detail has to be gone into. There are good arguments, such as those put forward by the noble Baroness, Lady Thornton, and others, that the industry should perhaps bear some of the cost. However, in being asked to pass this wording 19 Jun 2000 : Column 62
in the Bill, the Government are not prepared to say what will be their opening position in the negotiations. Does "appropriate" mean about half, or about nothing?
Lord Bassam of Brighton: The noble Viscount, Lord Goschen, suggested that business may be transferred overseas. I apologise for not accepting that possibility; I do accept it. But there is no evidence as yet that that is likely to be the case. There is a deficiency in the approach adopted, not only in the debate this evening, but also in the public debate, which goes back to the comment made by the CBI. If the industry adopts an alarmist position at this stage in order to force more costs to be covered by the Government, it could be self-defeating and in neither the industry's, the Government's nor indeed the public's best interests. So, although I accept the possibility, I do not accept that that should end up being the case. We believe that we shall get the balance right. We shall have the detailed consultation to take into consideration.
The noble Lord, Lord Lucas, said that we are not providing the detail in
addressing this aspect. However, we issued a point-by-point refutation on the
whole cost issue. The allegation was that we would impose black boxes. But
that is only one suggestion. It has not been decided. The likelihood is that
we shall not expect all ISPs, for instance, to carry an intercept capability.
So the burden of costs envisaged by many of the detractors with regard to this
part of the legislation does not exist to the extent suggested in certain
alarmist quarters.
Lord Bassam of Brighton: It is not a question of drawing a short straw. As I understand it, there are 400 ISPs in the UK at the moment. The cost assessment built up in opposition to the Government's position assumes that all 400 will be obliged to possess an e-mail active intercept capability. We do not necessarily accept that that is the case; it may be far from the case. It may be that only the largest ISPs will bear part of the burden of cost.
We have to look at the detail. We have to consult the industry in order to get
the balance of costs right. Trying to establish that in legislation would be
unique. I am sure that the noble Lord, Lord Lucas, accepts that point. I
accept that he is trying to flush us out on where we feel the balance is; but
the matter is best left to the detailed consultation which all Members of the
Committee have said that we should conduct and carry out. We are committed to
that process.
Lord Cope of Berkeley: I view this as a most unsatisfactory debate, particularly from the parliamentary point of view. Parliament is being devalued. We are being asked to accept a lot of highly generalised assurances from the Minister. I noted three: "We will not be unreasonable"; "Fears are not well founded"; "We have good intentions". They are all honeyed words but mean very little. The more the Minister said, the more it became clear that either the proposals are not being shared with us or, as I suspect, they are as yet unformed and loose. That is why there is this huge potential disparity in the cost which Parliament is being asked to take at face value.
Perhaps I may respond to the noble Baroness, Lady Thornton. She said that she
did not feel that e-businesses were bearing their share of responsibility and
that we were arguing only on behalf of such businesses. But it is not only
e-businesses which are involved; it is the whole of business. After all, the
chambers of commerce, the CBI and the Institute of Directors are complaining,
and The Times, the Financial Times, the Observer and the Guardian, all say in
different ways that these proposals, desirable as they are--we all believe it
to be desirable to use this method to catch criminals--are insufficiently
developed and still contain snags. Yet we are asked in this clause to support
a blank cheque.
On the question of the number of Internet providers, the noble Lord, Lord
Desai, said that he thought that the provision would include all ISPs. But
that is what is worrying; it will not. There is nothing in the Bill about
this. The general assumption was exactly the same as the noble Lord's; that
is, that the provision would include all ISPs, at least over a period. The
chambers of commerce report worked on the assumption that the interception
regime would involve 20 large ISPs and 100 small ones--that is pretty well
most of the industry. But the Home Office said that that is a gross
over-estimate, perhaps by as much as a factor of 10. That is to say, only
one-tenth of the ISPs will be subjected to this regime; presumably, that is
one-tenth of the large businesses and one-tenth of the small ones. I find that
surprising. But it shows how difficult it is to get at the cost and to know
exactly what is proposed.
My noble friend Lord Lucas said that if this £20 million--the Government's
estimate--is going to be imposed on only one-tenth of ISPs, it will cause
grave difficulties. The others will be at a competitive disadvantage because
they have not been approached.
Lord Cope of Berkeley: I shall certainly reflect on it and ask others to do the same. After all, the vast majority of telephone traffic goes through very few hands. That may explain some of the figures given by the Minister in that respect.
The noble Lord, Lord Phillips of Sudbury, asked a simple question in this
regard. No detail was given and no approach was made in principle to answer
his question. "It will all be considered before we reach secondary
legislation", said the Minister. Of course, there will be a further
opportunity to discuss it at that stage, when the stable door has more or less
shut. But we all know the difficulties of secondary legislation.
I shall not press this amendment tonight. It merely sought to probe what the
Government intend. We have found out practically nothing in that regard. I am
sure, therefore, that we shall return to this matter on Report. I beg leave to
withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 56 had been withdrawn from the Marshalled List.]
[Amendment No. 57 not moved.]
On Question, Whether Clause 13 shall stand part of the Bill?
It is perfectly obvious now that we do not know how many ISPs will need to have a box and what the cost will be. The Minister has said that that may not apply to all of them, but that is rather like saying that there will be intercepts only in London and the South East, not elsewhere in England. The system really does not work like that for ISPs; they are all intermingled. I do not see how anyone can know the answer. As the noble Lord, Lord Desai, suggested, they will probably all have to have one at some point or another. We have heard nothing about what the costs will be and have received very little information. It is not just a matter of the burden of such costs for industry; unless we get this right, the situation will drive business overseas. As a simple example, let us look at the betting industry in this country. At present, the Treasury imposes what the industry considers to be a high tax on betting turnover. In almost an instant, the industry has managed to transfer a large part of its business via data communication lines to Gibraltar, 19 Jun 2000 : Column 65
Malta, the Caribbean and various other points across the globe. Such places are completely outside our law and thus no revenue is collected by the Treasury.Baroness Thornton: I do not wish to stop pornography. I wish to make sure that the Internet is safe for children. Those who wish to indulge in watching pornography, or whatever, would be able to do so, but I should like to be sure that children--and others we do not wish to have access to such services--are safe.
Viscount Astor: I entirely accept what the noble Baroness said. But if it is to be safe for children, it must be regulated. It will not be regulated if we drive it overseas.
Clause 13(1) says that the Secretary of State,
"may, if he thinks fit, make such payments".
Thereafter, subsection (1)(b) refers to the word "appropriate". We
have heard that the Minister cannot tell us what is appropriate because he
does not really know. It might amount to a contribution. But will there be a
limit on the cost, of, say, the net revenue of a company? What happens if
there is a major disagreement between the Government, the Home Office and the
industry on what is, and what is not, appropriate? Is there any form of right
to arbitration or an appeals system within the Bill relating to this clause?
If we are to rely on this consultation and, indeed, on secondary legislation,
it seems to me that the industry may, in effect, have to agree to a blank
cheque. I suspect that there is no right of appeal beyond, I suppose, judicial
review--governments are fond of saying, "Well, you can always go to
judicial review"--but, in reality, we all know that such a process is so
expensive, lengthy and time consuming that it often never happens. I am sure
that the noble Lord, Lord Phillips, as a lawyer, will back me up on that
point. Moreover, judicial review rarely works. People do not have the time or
the money to make it work.
If I am right in thinking that there is no form of mechanism that the
Government and the industry are going to negotiate, what would be fair for
both sides? Will the Government consider some form of mechanism being added to
the Bill which will then give some assurance to the industry that it will be
treated fairly?
6.45 p.m.