Regulation of Investigatory Powers Bill

4.56 p.m.

 

House again in Committee on Clause 25.

 

Lord Lucas moved Amendment No. 105:


The noble Lord said: I shall also speak to Amendments Nos. 106 and 109. If the noble Lord, Lord Phillips of Sudbury, wants to know how to make small groups, the answer is to ask for them. The Government complain mightily, but they give in eventually.

There are three minor problems with the wording of the Bill on which I should be grateful for elucidation. Amendment No. 105 relates to subsection (3)(a), which says that surveillance is deemed covert if it


That seems to imply that observing someone's activities from a flat with agreement of the occupants--as one has often seen done on television and elsewhere--or using a private vehicle in the street to watch what is going on in the street counts as covert surveillance. That seems very odd, so I suggest inserting the words "owned or occupied" to show that only when the subject's house or vehicle is being observed from outside does surveillance count as covert.

Amendment No. 106 would delete subsection (3)(b), because I do not believe that merely watching something from outside falls within the ordinary definition of "intrusive". Perhaps the Government do not agree and feel that the entirety of what happens in a house should be sanctified.

Amendment No. 109 would delete subsection (5), which says that subsection (3)(b) does not apply when


I cannot think of any circumstances under which that stipulation would not be satisfied. It must surely be impossible, as long as you draw a line far enough, to gain intelligence from a remote device placed, perhaps, 100 yards away which is as good as that which can be obtained from a device of the best possible quality situated inside the house. By the laws of physics, there must be interference and noise of some sort or another introduced by that distance of, for example, 100 yards which will mean that subsection (5) is always satisfied.

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I should be grateful for some guidance from the Government as to where they think the line should be drawn between intrusive and not intrusive and how the wording in subsections (3)(b) and (5) work together to make that a line which is understandable to officials in practice. I beg to move.

 

Lord Monson: I have no firm views on Amendments Nos. 106 or 109. But it seems to me that if the Government do not accept Amendment No. 105, or something very like it, they will be shooting themselves in the foot. As the noble Lord, Lord Lucas, pointed out, if Clause 25 is left unamended the people doing the surveillance will be caught and that is surely not the Government's intention.

 

Lord Phillips of Sudbury: Had the noble Lord, Lord Lucas, not tabled these amendments, we should have tabled similar amendments. We wish to support them.

In subsection (5), to which Amendment No. 109 relates, it says that surveillance,


That seems to me to be an extraordinarily high test and largely reduces the protection around intrusive surveillance which other parts of the clause are designed to provide.

I also raise the fact that the Data Protection Commissioner, whose views must surely be given some weight in these matters, responded to the Bill in March of this year by citing the instance of a picture from a long-lens camera. That may not be quite as clear as a picture from a camera placed in the room but it did not necessarily reduce the infringement of privacy.

Finally, in response to a reply from the noble Lord, Lord Bach, on an earlier amendment moved from these Benches, from a practical standpoint, in terms of working those complex provisions, how is one to know in advance whether the quality and detail of information obtained by a device is or is not of a consistent quality commensurate with information obtained from within the premises?

All in all, we believe that those provisions are impractical, unworkable and unnecessary and that the Bill would be improved without subsection (5).

 

Lord Bach: We were a little unclear about the purpose of Amendment No. 105 tabled by the noble Lord, Lord Lucas. The amendment inserts the words,


after the word "vehicle". But Clause 45 already defines "private vehicle" as,


    "any vehicle which is used primarily for the private purposes of the person who owns it or of a person otherwise having the right to use it".

That formulation in Clause 45 is intended to catch the occasions when a vehicle might be in use and being used for private purposes.

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As before, that distinction may not be perfect in terms of pure issues of privacy but we need to give a clear steer as to the circumstances in which an authorisation will be appropriate. The Bill does that and it is compatible with convention rights in that regard.

Amendments Nos. 106 and 109 would lessen the controls placed on the use of intrusive surveillance. The aim of Part II has been to cover the activities of law enforcement and other agencies and to place the most stringent controls on those activities where a person has the highest expectation of privacy--in his home or his own vehicle.

To accept these amendments would remove from that category those operations or investigations where the police or others used highly sophisticated equipment--for example, laser microphones--to obtain details of a conversation inside a person's home without installing a device on those premises. We are not prepared to lessen that control which is why we cannot accept the amendments.

I am asked about the person carrying out the surveillance. He would have lawful authority by virtue of the authorisation itself.

Lord Lucas: In Clause 45 the definition of a "private vehicle" is,


and residential premises are similarly defined. So let us suppose that we have a policeman sitting in my flat, watching some drug dealing going on in the street below. Surely, that is caught by the current wording of Clause 25(3)(a) to mean that that is intrusive surveillance, merely because the policeman is sitting in my flat watching someone else because my flat is a convenient place from which to undertake the observation. There is nothing in the definition of "residential premises" or "private vehicle" to say that those must be owned or used by the person who is the subject of the surveillance.

That is the purpose of Amendment No. 105. Otherwise, any surveillance operation which in any way makes use of residential premises or a private vehicle becomes intrusive. That seems to me to be extremely odd.

As regards Amendments Nos. 106 and 109, I understand the Government's position to be that the home is sacrosanct. I am quite prepared to work with that position. But then, as the noble Lord, Lord Phillips of Sudbury said, subsection (5) is lunatic. There has been reference to a laser microphone. That uses the vibrations in a pane of glass. So the sound quality depends on the way in which a pane of quite thick glass, perhaps even double glazing, responds to sound waves. Under any circumstances, from the absoluteness of physical laws, it has to be worse than having a microphone on the premises. So subsection (5) will always be satisfied, so Clause 25(3)(b) has no effect. What the Government are saying they wish to do is entirely negated.

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If we accept entirely what the Government wish to do, then they must entirely recast subsection (5) in some way to take out that extremely high test.

Finally, I understand why an Englishman's home is his castle, and we should treat that seriously. But why is there this passion for vehicles? I thought that it was this party which was meant to treat the private car as something special. Is not the party opposite meant to be encouraging the use of public transport? If this law comes into effect, everyone will have to use cars because then they can have a mobile source of privacy. Cars will be taken to the office because people will then be able to dodge out of the office into the car and not be subject to surveillance. That seems very odd.

I should be grateful for a response on those three points because I do not believe that I have been given a satisfactory answer on anything.

 

Lord Bach: The noble Lord has raised a difficult point. We want to think further about it, particularly as he was supported by the noble Lord, Lord Phillips of Sudbury. Therefore, if the noble Lord will withdraw the amendment, I shall take it away and think about the points he made, particularly in relation to subsections (3)(b) and (5) to see whether or not they are inconsistent. We are grateful to the noble Lord for raising this issue and we shall come back to him on it.

 

Lord Lucas: A little flattery will get one everywhere! I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 106 to 109 not moved.]

 

Lord Bach moved Amendment No. 110:



("(5A) For the purposes of this Part surveillance which--
(a) is carried out by means of apparatus designed or adapted for the purpose of detecting the installation or use in any residential or other premises of a television receiver (within the meaning of section 1 of the Wireless Telegraphy Act 1949), and
(b) is carried out from outside those premises exclusively for that purpose,
is neither directed nor intrusive.").

On Question, amendment agreed to.

[Amendment Nos. 111 to 112A not moved.]

Clause 25, as amended, agreed to.

Clause 26 [Lawful surveillance etc.]:

 

Lord Cope of Berkeley moved Amendment No. 113:


The noble Lord said: Amendment No. 113 draws attention to subsection (3) of Clause 26, which says that,


    "The conduct that may be authorised under this Part includes conduct outside the United Kingdom".

I was slightly surprised that that type of surveillance, to be conducted by the various bodies to which the Committee will turn later, is to be authorised outside the United Kingdom. Presumably such surveillance

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also has to be lawful in the other country concerned, unless it takes place on the high seas. That is my first point.

In regard to other countries' surveillance here, I can see nothing in the Bill that would allow the equivalent authorities of other countries--the police and so on--to carry out intrusive surveillance here. From our point of view, that seems to be a good thing, but one would have thought that sauce for the goose would be sauce for the gander. If we are not to permit the police of other countries to carry out surveillance here, except through our police or customs, presumably we should not suggest that our police should conduct them elsewhere, but should seek the co-operation of the police in the country concerned. I would be grateful if the Minister would comment on that. I beg to move.

 

Lord Bach: We understand the intention of the noble Lord in moving this amendment. I shall explain why the provision is in the Bill and its effect. I shall also try to answer his questions.

The provision at Clause 26(3) would allow for authorisations under this Bill to be given for the use of surveillance or covert sources where some or all of the activity was to take place outside the UK. That can be seen to be directly relevant in the case of an intelligence agency with a remit to operate abroad, but it may also be relevant in some other areas such as drugs investigations by the police and customs.

There are geographical limits to the authorisation of intrusive surveillance. Those are set out, principally in respect of police forces, at Clause 31 of this Bill. In respect of authorisations that can have application abroad, the effect of the authorisations would be to provide reassurance to UK courts that a particular activity was, first, in accord with ECHR principles; secondly, authorised at a sufficiently high level; and, thirdly, subject to independent oversight, should evidence subsequently be brought before a court or should a Human Rights Act challenge based on that activity be made in our courts.

Without such a provision, evidence--when produced in a court in the UK--may be vulnerable to the charge that it had not been authorised in accordance with the law as required by Article 8 of the convention.

The provision does not grant a general licence to operate abroad. If the force or agency in question has no remit to act overseas, this Bill will not give it one. Indeed, for most such operations, the authorisation would cover an operation in which foreign authorities were in the lead, or at least involved. This provision would merely serve to protect any evidence arising from such operations when brought before a UK court. This is clearly desirable in helping to convict major and international criminals.

The noble Lord, Lord Cope, asks about other countries carrying out surveillance here. Foreign law enforcement agencies would obtain authorisation

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through organisations here; they would not act here without consultation and without the approval of the relevant agency based in the UK.

 

Lord Cope of Berkeley: I am grateful for that explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 agreed to.

5.15 p.m.

 

Clause 27 [Authorisation of directed surveillance]:

 

Lord Phillips of Sudbury moved Amendment No. 114:


The noble Lord said: The point of Amendment No. 114 is relatively simple to explain. Clauses 27 and 28 of the Bill provide the circumstances in which authorisation can be given, on the one hand, for direct surveillance and, on the other hand, for covert human intelligence. As the Minister said earlier, it is part of the protection supposedly provided to citizens by this Bill and its extraordinarily wide powers, that that authorisation procedure is clearly defined and battened down.

The Committee will have noticed that, according to both clauses, authorisation can be given only where it is necessary on grounds specified in subsection (3) of Clause 27. That subsection is in the widest terms and includes national security, preventing crime, preventing disorder, economic well-being, public safety, public health, collecting tax and so on. The final paragraph, (g), states that the Secretary of State can, by order, specify other grounds on which these key authorisations can be given.

I believe that Members of the Committee agree this is a difficult Bill, an important Bill, and one in which, more than normal, we must be vigilant in protecting basic freedoms and liberties--not, I emphasise, that the Government are trying to put one over on citizens, but it is common ground that the denseness and complexity of the drafting of this legislation require us to be vigilant.

I draw to the attention of the Committee the 18th report of the Select Committee on Delegated Powers and Deregulation, published earlier this month. It states particular concern for the subsections that Amendments Nos. 114 and 117 address. The report states:


It goes on to say:


these clauses--


    "may be intended to allow no more than the addition of the protection of morals and the rights and freedoms of others to the purposes set out in those clauses".

     

28 Jun 2000 : Column 933

 

The Select Committee gathered that from a government memorandum to the Select Committee. The report continues:


    "If this is so, why are the powers not limited in this way?"--

for example, set out on the face of the Bill--


That is a quote from the Government's memorandum. The crucial finale of this matter is as follows:


    "The Committee does not accept that it is appropriate to use wide terms to define a new power and to rely on the Human Rights Act to restrict its scope when it is possible to define it so that it covers only its intended scope".

I give three cheers for that. I believe this is the first clear example that we have had before us of what I would call thoroughly lazy drafting, where the government of the day are content not to define what is or is not allowed by the government machinery in all its aspects; where they are willing to fall back on a thoroughly weak and inadequate protection by saying, "Don't worry, old chap, just go and look at the Human Rights Act and I am sure you will find a remedy there". That is simply not an answer in a case of this nature. We believe that this is an important provision that the Select Committee perfectly clearly condemns. I invite the Committee to do the same. I beg to move.

Lord Cope of Berkeley: I give one cheer for government Amendments Nos. 115 and 118, which take up part of the recommendation of the Delegated Powers and Deregulation Committee that any power of this character should be subject to affirmative resolution. As the noble Lord, Lord Phillips, said, the actual recommendation of the committee goes much further and, although it is not precisely covered in the Liberal Democrat amendments, the noble Lord has a very good point.

 

Lord Bach: In replying to the noble Lord's amendments, perhaps I can speak also to the government amendments in this group, Amendments Nos. 203B, 205, 206, 208A to 208C and 115.

The noble Lord, Lord Phillips, quoted from a report of the Delegated Powers and Deregulation Committee. But in a later report that committee accepted the Government's reasons for doing what we are doing. It may be therefore that the noble Lord is wrong to rely on the 18th report and should rather look to the 21st report for an explanation of what we are doing and a rejection of what he proposes.

One of the recommendations of the Select Committee on Delegated Powers and Deregulation was that we should tighten up the arrangements for adding to the grounds on which the various investigative powers can be used. As has already been indicated, we considered that and accepted the weight of the argument. So we tabled the government amendments which ensure that, in respect of each of

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the powers at issue, any addition to the purposes for which those powers can be used will be subject to the affirmative resolution procedure.

We have already explained why we do not believe it is necessary to act on the recommendation of the committee that the Bill should explicitly recognise that none of the orders could include purposes which would go beyond those permitted in the convention on human rights. The Delegated Powers and Deregulation Committee, in its latest report, accepted our reasons.

As we have made clear, the powers in this Bill will be limited by the Human Rights Act. As a matter of law, not simply as a practical limitation, the Secretary of State may make no order that is incompatible with the convention. It is our view that to state on the face of the Bill that the convention rights must circumscribe any use of these orders will add nothing to the situation in law. That is an important point; it will be relevant to all legislation in the days post implementation of the Human Rights Act.

Turning to the Liberal Democrat amendments, any additions to the purposes on the face of the Bill will, as a matter of law, have to fall within the exceptions set out in Article 8(2) of the convention and should be made by means of the affirmative resolution procedure. That has now been accepted by the Delegated Powers and Deregulation Committee as giving appropriate parliamentary control and this Committee should recognise that when debating these amendments. The 21st report deals with that matter.

What scope does that leave for adding to the purposes? I need to answer this today as Amendments Nos. 114 and 117 seek to remove the power to add purposes altogether in a fashion beyond that recommended by the Delegated Powers and Deregulation Committee. The two permitted purposes in Article 8 of the ECHR, which we have not included in the Bill, are,


and,


    "for the rights and freedoms of others".

That was because we could think of no circumstances where public authorities would want to use covert techniques on those grounds. But we thought it necessary to provide the power to enable the grounds to be extended for those purposes should that prove necessary. We can see a time when it may be necessary to use this enabling power in some limited circumstances which would fall within,


    "rights and freedoms of others".

Once the HRA is implemented and we have more idea of how it will impact on the activities of public authorities, we may very quickly need to look to adding purposes to the list set out and, if we do want to add purposes, we shall want to limit them as far as possible.

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The Delegated Powers and Deregulation Committee suggested that any use of the order-making power might be limited specifically to adding the purposes,


or,


    "for the rights and freedoms of others",

as mentioned by the noble Lord, Lord Phillips. Those are two quite wide-ranging purposes. If possible, any extension of the powers ought, in our view, to be more specific. Certainly, we should leave that possibility open in the interests of limiting as far as possible the intrusions on privacy.

Members of the Committee will note that this is the approach we have adopted with some of the purposes already listed in the Bill. They do not follow exactly the wording of the convention rights. Some are tailored specifically to meet the requirements of investigating agencies in the modern age. We believe the purposes described fall within those allowed under Article 8(2) and we have used a formulation to narrow the purposes as far as possible.

Of course these are important issues and they are inextricably linked with the implementation of the Human Rights Act. We tabled amendments which we feel ought to provide all the reassurance the Committee requires. We do not claim a monopoly of wisdom on the Human Rights Act--we are all feeling our way--but I seek to persuade the Committee that we have done enough in that regard. I hope that, having heard my explanation, the noble Lord, Lord Phillips, will feel able to withdraw his amendment.

 

Lord Phillips of Sudbury: I am grateful for the Minister's response. However, I urge on him the intermediate position which the Select Committee proposed; that is, rather than simply leave it to an affirmative resolution, which would of course be an improvement on the Bill, the Bill should contain on its face the two categories to which reference has been made--morals and purposes. That would be the best way of dealing with this matter. It would not leave a completely unknown category to be added by affirmative resolution in the future.

As the cliche has it, the price of liberty is eternal vigilance. It is not a safe way of legislating for us to assume that the nice, reasonable noble Lords who sit opposite will always be in their places. That compromise would therefore be the best compromise. One hopes that the Government will consider it. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

 

Lord Bach moved Amendment No. 115:


    Page 29, line 41, at end insert--

     


("(5) The Secretary of State shall not make an order under subsection (3)(g) 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 27, as amended, agreed to.

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Clause 28 [Authorisation of covert human intelligence sources]:

[Amendments Nos. 116, 116A and 117 not moved.]

 

Lord Bach moved Amendment No. 118:



("(5A) The Secretary of State shall not make an order under subsection (3)(g) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").

On Question, amendment agreed to.

 

Lord Phillips of Sudbury had given notice of his intention to move Amendment No. 119:



("( ) An authorisation for the conduct and use of a covert human intelligence source whose conduct falls within section 25(7)(d) shall be governed by the same procedures as apply to the authorisation of conduct for the carrying out of intrusive surveillance.").

The noble Lord said: Perhaps I may say a word on this amendment because I was rather caught on the hop before the break for the Statement.

Many of the points made by the Minister in responding to this and the other amendments in the group will bear scrutiny when we see Hansard. I hope I shall be able to communicate with the Minister before Report stage because we are all striving to make the best of this Bill. For the moment I shall leave it at that, except to say this. The Minister said that in relation to this group of amendments he did not think the provisions were for this legislation. I do not know on what possible basis that can be so, given that the Bill provides precisely for the arrangements vis a vis informers.

[Amendment No. 119 not moved.]

Clause 28, as amended, agreed to.

5.30 p.m.

 

Clause 29 [Persons entitled to grant authorisations under ss. 27 and 28]:

 

Lord Bach moved Amendment No. 120:



("(4) A public authority is a relevant public authority for the purposes of this section--
(a) in relation to section 27 if it is specified in Part I or II of Schedule (Relevant public authorities); and
(b) in relation to section 28 if it is specified in Part I of that Schedule.
(4A) The Secretary of State may by order amend Schedule (Relevant public authorities) by--
(a) adding a public authority to Part I or II of that Schedule;
(b) removing a public authority from that Schedule;
(c) moving a public authority from one Part of that Schedule to the other;
(d) making any change consequential on any change in the name of a public authority specified in that Schedule.

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(4B) The Secretary of State shall not make an order under subsection (4A) containing any provision for--
(a) adding any public authority to Part I or II of that Schedule, or
(b) moving any public authority from Part II to Part I of that Schedule,
unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").

The noble Lord said: In moving this amendment on behalf of my noble friend, I shall speak also to Amendments Nos. 121, 159 and 207. There was much discussion in another place about the naming on the face of the Bill of those public authorities using Part II powers. This issue was also raised by the Delegated Powers and Deregulation Committee. We have listened to the arguments put forward and our response is the schedule provided by this group of amendments. The schedule is divided into two parts. Part I lists all those public authorities empowered to authorise directed surveillance and the use and/or conduct of covert sources. Part II lists those authorities empowered only to authorise directed surveillance.

The schedule differs markedly from early versions of the list of public authorities using these powers. First, it names only the public authorities and does not go into details about which agencies within each department will be using these powers. That is because the public authority is the statutory body, not its constituent parts. However, we are intending to narrow down the different agencies within a public authority that can authorise activity under Part II of the Bill. This will be achieved by means of the order produced under Clause 29, which will specify precisely the individuals holding such offices, ranks or positions within the relevant public authority who can authorise activity. For example, the order might specify a senior immigration officer within the Immigration Service of the Home Office as able to authorise the conduct or use of a covert source.

Secondly, changes and additions have also been made to the list. The first provisional list was published during the Committee stage in another place. We made it clear then that the list was being developed and that there would be changes. Since that time we have found that a greater number of public authorities use Part II powers than we had first thought. This has been one of the benefits of the whole exercise. We now have a much clearer picture of the range and types of activity that are going on in public authorities, but we are still learning about public authorities whose activities had not previously come to our attention. This learning process is likely to go on for some time. That is why it may be necessary to add further public authorities as a result of case law developed from judgments on the definition of what is a "public authority" once the Human Rights Act (the HRA) comes into force. That is why the amendments provide for the Secretary of State, by order, to add or remove public authorities from the schedule or to move an authority from one part of the schedule to the other.

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Any addition, or movement from Part II to Part I of the schedule, will first need to be approved by Parliament. Of course, that does not mean to say that we have rejected out of hand the recommendation of the Delegated Powers and Deregulation Committee that we should remove the power to add public authorities to the schedule. We have taken careful note of the committee's view, as detailed in its 21st Report, that we should be able to produce an exhaustive list of public authorities now and that it should be for Parliament to decide by means of primary legislation whether any additional existing public authorities should be added to the schedule. Any order adding a body to the schedule would now be subject to parliamentary approval through the affirmative resolution procedure.

However, there is something between us and the Delegated Powers and Deregulation Committee on the issue. We should like to give the matter further thought. Indeed, we propose that a meeting should take place between the chairman of that very distinguished committee and my noble friend the Minister who sits beside me. On that basis, I beg to move Amendment No. 120

Viscount Astor: We are grateful to the Minister for his explanation of the amendments. However, before I ask him a number of questions in that respect, I have before me the text of Clause 29 where subsection (4)(d) refers to,


The reference to other public authorities in the clause is very definitive; for example, there is reference to the National Criminal Intelligence Service, the National Crime Squad and the Ministry of Defence, and so on. Therefore, when the Minister responds, can he tell me whether the phrase,


    "any of the intelligence services",

is a definitive or legal term? Now that the intelligence services publish booklets stating who and where they are and, indeed, are subject to parliamentary scrutiny, I wonder why the Bill does not set out the intelligence services involved. It seems to me that that leaves the matter open to debate as regards what is and what is not an intelligence service. As they are now subject to Parliament, would it not be better to define them as such?

 

Lord Bach: Perhaps I may deal with that point now. As I understand it, Clause 72 defines "intelligence services". Yes, indeed, the definition is to be found at lines 8 and 9 on page 77. I hope that that answers the noble Viscount's question.

 

Viscount Astor: I am extremely grateful to the Minister for pointing that out. I am glad that, like me, it took him a little time to find the actual wording.

I turn now to the amendments. I have a number of questions about the list, the first of which is general and relates to a matter that was touched on earlier. We are adding local authorities and various other bodies to this list, but I am rather concerned about how this

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will work. Presumably, some local authorities will not have the resources to do this on their own. Will local authorities be allowed to use private contractors for this purpose; for example, will they be able to use private detective agencies? Alternatively, will this have to be done by employees? Can such activities be contracted out? If that is the case--I do not know whether it is--how will this be organised to ensure that those concerned keep within the rules that apply to such activity?

I note that the schedule in Amendment No. 159 includes a reference to the National Assembly for Wales. As far as I understand it, the reason for its inclusion is because the assembly is an executive body, as opposed to the Scottish Parliament, which is a parliament. The amendment simply refers to "The National Assembly for Wales". Can the Minister say whether that implies that the assembly could have a wider remit when it comes to using these powers than, say, the Department of Health or the Home Office, which are confined within a rather narrow remit? It is purely a probing question, but I should be grateful to receive an answer from the Minister.

Further, under Other bodies in the schedule set out under Amendment No. 159, one sees that the Food Standards Agency and the Intervention Board for Agricultural Produce have been included in the list. I am not quite sure why those bodies are there. I understand that there may, perhaps, be a reason for including the FSA because the Bill talks about the economic well-being of the country and, indeed, about protecting public health. I should be interested to know how the agency will use its powers. Similarly, I am rather puzzled as to why the Intervention Board for Agricultural Produce has been included in the list. It seems to me that we are opening up farmers in this country to some kind of intrusive--or even unintrusive--surveillance. I do not know how this will work. I believe that the Government need to explain why these bodies have been included in the list.

Looking further down the list in the schedule, one finds reference to the Royal Pharmaceutical Society of Great Britain. I am not aware that that is either a public body or a quango. I should be grateful if the Minister could explain why the society has been included. I may be wrong and it may indeed be a public body; but, if it is not, I do not understand how it will be subject to any form of control. That seems to me to raise some interesting questions.

I have asked specific questions about the listings, but I have a more general question about local authorities. As the Minister said, I understand that the Government will be looking to see how this works in the future. However, it would be helpful to know just how many local authorities will actually sign up to start with--for example, will it be a small number and, if so, how quickly do the Government think it will grow? It would be most informative to know what evidence the Government have in that respect.

 

Lord Lucas: I hope that in the course of his inquiries the Minister will ask the Department for Education and Employment whether it ought to be on the list.

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During my time as an education spokesman several enterprising frauds of Nigerian origin that obtained money from university grants when they should not have done so were investigated. Presumably the whole matter of the repayment of student loans will at some stage require some kind of checking up on the financial status or whereabouts of former students.

 

Lord Desai: What about the drugs czar? Is the drugs czar independent of the Home Office? Is he a separate agent? I can think of many other examples but that of the drugs czar worries me because he should be included in the list.

 

Viscount Goschen: Perhaps czars could comprise another category to be defined at a later time.

I welcome the Minister's attempt in these government amendments to try to be more specific in regard to what kind of agencies will fall under the provisions of the Bill. My intervention relates to points that I raised at an earlier stage of today's proceedings.

The Minister was good enough to say that the Bill regulates for the first time the use of surveillance, be it covert or intrusive, and that previously a number of these activities were not regulated in any way. If the schedule applies only to public bodies--there has been much discussion about those public bodies--will the Minister clarify what is its effect on those bodies that are not covered by it? Can they continue as before? Are they in a more advantageous or a less advantageous situation than those bodies which are classified as public? That relates to the point made so ably by my noble friend Lord Astor; namely, whether a public body is able to find a loophole here. Can they use a non-public body to perform their work for them?

I have a final question on the amendment we are discussing although the noble Lord may say that it applies to another part of the Bill and that we may pre-empt the clause stand part debate. What happens to information that is obtained using covert or intrusive surveillance? I am sure that the noble Lord will point out the relevant provision in the Bill. Are there definitive restrictions on the use to which such information may be put? Earlier my noble friend Lord Cope spoke of the BBC carrying out investigative surveillance. One has often seen on television film shot by the customs agency, for example, in pursuance of an investigation. That may involve covert surveillance. Will it continue to be appropriate for such material to be used for public entertainment, as has occurred in the past, or are there additional restrictions in the Bill to cover such eventualities?

5.45 p.m.

 

 

Lord Bach: These government amendments have elicited many questions from Members of the Committee, all of which deserve an answer. The noble Viscount, Lord Goschen, asked again how bodies that are not public authorities are affected by the Bill. He deserves a fuller response than he obtained on the previous occasion he raised that matter.

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Clause 71 states, in terms, that nothing is made unlawful by Part II of the Bill. This part of the Bill is designed solely to allow only public authorities to comply with the Human Rights Act, which deals with public authorities and not with private individuals. It places a duty on public authorities to act in accordance with the Human Rights Act. The authorities that are affected are listed in Amendment No. 159. It is a matter for individual organisations to take a view as to whether they are public authorities. If they believe that they are, they can be added to the list by order.

Bodies that are not public authorities are not affected in any way by the Bill or by the Human Rights Act. Their position in law will be exactly as it was before the Bill becomes law. In other words, their position remains unchanged. If their activities are caught by the criminal law, so be it. However, if their activities are not unlawful, that will continue to be the case.

 

Viscount Goschen: I am grateful to the Minister for those helpful comments, which have certainly assisted my understanding of the Bill. However, I referred to a private detective agency being able to pursue an activity that is lawful under the criminal law. A public authority, however, would be subject to all kinds of restrictions in pursuing that activity. Could the public authority contract out that work?

 

Lord Bach: I do not believe that a public authority could contract out fully because, in the end, it would remain liable and it would be caught by the provisions of the Bill; in other words, it would have to act in accordance with the Human Rights Act.

The noble Viscount, Lord Astor, queried some of the names on the list. The National Assembly for Wales is in the same position as any other public authority mentioned in Amendment No. 159. The noble Viscount referred to three bodies and asked why they were included in the list. At the risk of speaking for longer than I had intended, I should explain why that is the case. The noble Viscount may not be aware--I was certainly not aware of this--that the Food Standards Agency is responsible for the enforcement of meat hygiene and related controls in licensed slaughterhouses. Surveillance is used to target individuals or premises, such as purchases at markets or activity at premises; for example, deliveries to farms where illegal activity is suspected to be taking place. The Food Standards Agency needs to be able to undertake such investigations to carry out its function as an enforcement authority for meat hygiene.

The Intervention Board for Agricultural Produce has an anti-fraud unit which uses surveillance to monitor milk quotas. Under the CAP, the UK is permitted to produce a specified quantity of milk a year. If that quantity is exceeded, a levy is raised. Therefore, all producers and purchasers of milk are meant to be registered and have their own quota. If that quota is exceeded, they become liable to levy. There is a market in black market milk where farmers produce milk and sell it to dairies without declaring it

28 Jun 2000 : Column 942

to the intervention board as they are meant to. It follows that surveillance operations are conducted where farms have been observed to ascertain whether milk tankers have collected milk.

The noble Viscount mentioned the Royal Pharmaceutical Society, which is considered to be a public authority and is therefore included in the list. That society has the power to enforce various sections of the Medicines Act 1968 and the Poisons Act 1972. It uses covert surveillance to ensure that there is no breach of the Medicines Act or the Poisons Act by pharmacists or businesses registered with them. As I say, it appears that not only have the Government learned more about public authorities but we are now sharing this information with the Committee. More bodies may need to be added to the schedule in due course. I believe that I have answered most of the questions that have been asked

Lord McNally: Reference has been made several times to where a private body carries out the functions of a public body. That happens in a number of areas; for instance, where there are private security firms operating side-by-side with police forces. Where that happens, will the private body be expected to observe the standards of the public body concerned? Does the public body set the standards in observation of legislation?

 

Lord Bach: The answer that I have received is that if the situation is as the noble Lord, Lord McNally, describes, it would in effect make the private body a public authority for the purposes of any surveillance or covert action that it may be taking. I think that that is quite a reassuring answer in the context of the Bill.

 

Viscount Goshen: I am sorry to press the Minister further. Perhaps he will address the point that I raised about the uses to which information and televisual data gained by covert surveillance can be put.

 

Viscount Astor: While the Minister is considering that question perhaps I may thank him for his helpful explanation and ask him one simple question. I do not need an answer today, but perhaps he will write to me between now and Report stage. I am grateful for the explanation that the Royal Pharmaceutical Society of Great Britain is a public body. I must say that I was unaware of that. If it is a public body, it would be interesting to know to whom it is responsible. Is it responsible to a government department, to Ministers or to Parliament? Perhaps the Minister will write to me before the next stage and explain that. When we are adding all these public bodies, it would be useful to know where their responsibilities lie and to whom they are answerable.

 

Lord Bach: I shall certainly write to the noble Viscount setting out how the society becomes a public authority. I am conscious of the question, which has now been asked twice, as to what use will be made of the information that is gained from surveillance. I must be very careful how I respond to the noble

28 Jun 2000 : Column 943

Viscount. Obviously in certain instances it can be used to make out a case against a criminal, a spy or a terrorist. However, what the noble Viscount wants to know is whether it can be used, for example, in a television documentary in order to make a point about wrong-doing. It is quite clear that the authorisations that are granted will have to be granted on specific terms, and of course the more intrusive the surveillance the more specific the terms have to be. To answer the noble Viscount's question fully it will be necessary for me to take proper advice and then to write to him with the use to which it can be put.

 

Lord Lucas: If the Minister intends to write to noble Lords, I think that it certainly would be helpful to have some enlargement on the nature of public authority. I have looked up "public authority" in the Human Rights Act. Under the Act, a public authority is,


but not if the nature of the Act is private. I find that a fairly confusing definition. I should be grateful for something which translated that into ordinary commonplace English so that we can understand the scope of the Bill in practice.

On Question, amendment agreed to.

 

Lord Bach moved Amendment No. 121:


    Page 32, line 18, leave out from ("authority") to second ("by") in line 19 and insert ("added to Schedule (Relevant public authorities) by an order made under subsection (4A)").

     

On Question, amendment agreed to.

Clause 29, as amended, agreed to.

Clause 30 [Authorisation of intrusive surveillance]:

[Amendment Nos. 121A to 123 not moved.]

 

Lord Bach moved Amendment No. 123A:


    Page 33, line 32, at end insert--

     


("( ) the chief constable of every police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967 (police forces for areas in Scotland);").

The noble Lord said: In moving this amendment I wish to speak also to Amendments Nos. 124A, 124B, 124C, 127A, 136A, 136B, 138A, 194A, 194B, 195, 195A, 203A, 211B and 230.

As the Committee knows, a separate Regulation of Investigatory Powers (Scotland) Bill has been introduced in the Scottish Parliament to cover the devolved activities of public authorities in Scotland. Although we hope the provisions in both Bills will be similar, so as not to impede joint cross-border operations, we also need to provide cover for devolved activity authorised in Scotland which crosses the Border and continues in another part of the UK, and for activity authorised in the rest of the UK which crosses the Border into Scotland. These government amendments, which we have discussed and which have been agreed with the Scottish Executive, provide that cover.

We already have provisions in Part II of the Bill which extend the Bill to Scotland in respect of reserved functions and public authorities with reserved

28 Jun 2000 : Column 944

functions. But we now extend all of Part II to Scotland, subject to the proviso that, in certain cases, an authorisation cannot be granted under the Bill where all the conduct is likely to take place in Scotland. That is covered by the Scottish equivalent of the Bill. These amendments ensure that conduct authorised by public authorities in England, Wales and Northern Ireland which cross the Border into Scotland will be lawful. They also extend the provisions of the Bill to provide lawful authority for a limited period of time for the activities of Scottish police forces and other public authorities with devolved functions in Scotland, where the conduct is authorised under the Scottish Bill and the activity crosses the Border out of Scotland into other parts of the UK.

Members of the Committee may think that this removes the need for a separate Scottish Bill. However, that is not the case. The amendments provide that an authority should not be obtained under the Bill if the conduct is all likely to take place in Scotland.

Lawful authorisation for conduct obtained under the Scottish legislation will continue if circumstances arise which take the conduct outside Scotland. Such an authorisation will continue to have lawful authority on each occasion that such circumstances arise and will last for three weeks, beginning with the time when the circumstances arose.

An authorisation for directed surveillance obtained by a Scottish police force under the Scottish Bill will continue to give lawful authority, if circumstances arise which mean that officers from that force need to pursue their target across the Border into England. The lawful authority will continue for three weeks on every occasion when circumstances arise which necessitate crossing of the Border. I beg to move.

 

Lord Cope of Berkeley: I wish to raise a point with regard to the overlap between the Scottish and the Welsh legislation. I understand that the Scottish Parliament has changed the wording of the Scottish Act a little. For example, Clause 30(2) of the Bill says that the Secretary of State cannot grant an authorisation under the Scottish legislation for intrusive surveillance unless he is satisfied that the authorisation is necessary, not that he just believes that it is. There is a slightly higher test in Scotland. Presumably, therefore, under Amendment No. 123A, the Scots will need to fulfil a lower test in England than in Scotland.

 

Lord Lucas: In this context, perhaps I may ask out of interest whether the phrase,


    "in the interests of the economic well-being of the United Kingdom",

     

would come into force if someone was planning to move a large operation from Scotland to England, or is that ruled out by that phrase?

On Question, amendment agreed to.

28 Jun 2000 : Column 945

6 p.m.

 

 

Lord McNally moved Amendment No. 124:


    Page 33, line 46, at end insert--

     


("(7) No authorisation shall take effect until such time (if any) as--
(a) the grant of the authorisation has been approved by an ordinary Surveillance Commissioner; and
(b) written notice of the Commissioner's decision to approve the grant of the authorisation has been given to the person who granted the authorisation.").

The noble Lord said: The amendments in this grouping make a common point; that is, to establish whether the powers vested here are--to use a word favoured by the noble Lord, Lord Bassam--proportionate. The clause covers authorisations for intrusive surveillance. The aim behind the amendments is to ensure that such authorisations are proportionate and that they bring all surveillance under the oversight of the surveillance commissioner.

All noble Lords concerned with the Bill know that a great deal of briefing has been submitted. One piece sent from the Cyber-Rights and Cyber-Liberties Group (UK) caught my eye because it summed up very well the thinking that lies behind these amendments. The group sets out five hurdles that should be cleared before the powers are used.

First, that the action will provide a


Secondly,


    "That the measures proposed discriminate effectively between criminals and honest, law-abiding citizens. Therefore, they should be balanced and should not, in an impetuous desire to counter crime, expose all honest Internet users to ... risks".

Thirdly,


    "That of all the options available they are the best in the sense that they are the most effective in countering criminals".

Fourthly,


    "They should be based on clearly defined policy objectives which citizens understand and which command widespread public support".

Fifthly,


    "They should be enforceable, transparent and accountable".

Those principles could easily apply to other parts of the Bill, but I believe that they apply particularly well to Clause 30. In essence these amendments are an exercise in wing-clipping. It is intended that the Minister should respond wherever he feels that those wings should not be clipped. I beg to move.

Lord Bach: I am grateful to the noble Lord, Lord McNally, for his brief introduction to this series of amendments. It is clear that they probe whether the Government's approach to the important issues surrounding intrusive surveillance is absolutely right. Perhaps I may deal with each amendment in turn.

Amendment No. 124 seems to have two aims. With regard to police and customs activities, it seeks to rule out the situation in which, in urgent cases, intrusive surveillance authorisations can take effect without the

28 Jun 2000 : Column 946

prior approval of the surveillance commissioner. Perhaps this arises through some genuine concern over the safeguards in the existing system in the Police Act 1997. I am sure that the noble Lord will accept an assurance that he need not worry. I can reassure him on this point.

The Chief Surveillance Commissioner has set up a system for giving approval to authorisations under Part III of the Police Act 1997 which means that there is a commissioner on duty at all times. The procedure is supported by secure communications, which means that a response can be obtained from a commissioner within a very few hours. From when the Office of Surveillance Commissioners started operation in February 1999 to April of this year--a period of some 15 months--only 12 cases had been dealt with under the urgency procedure; that is, an authorisation normally requiring prior approval of a commissioner has taken effect immediately without awaiting that approval because of the urgency involved. Those 12 cases were taken from a total of around 311 prior approval cases. The same system will be put in place to deal with intrusive authorisations for police and customs activities under these provisions. I think that that should go some way to providing evidence that the system will not be abused.

The amendment would also impose a requirement on Secretary of State authorisations. They would not take effect until a surveillance commissioner had approved the grant of authorisation and written notice of the commissioner's decision had been given. We do not believe that that would be appropriate; rather, this is a skilful way employed by the noble Lord to raise again the issue of judicial warranting which we discussed during earlier debates in Committee. The surveillance commissioners have no locus in the activities of the security and intelligence agencies. We made our position clear on judicial involvement in the issue of warrants by the Secretary of State during discussions on Part I of the Bill.

Authorisation for intrusive surveillance by the security and intelligence agencies or the Ministry of Defence will occur in extremely sensitive cases. We believe that it is a key part of the line of accountability from the agencies and department to the Secretary of State. The involvement by the executive has historically reflected the highest levels of scrutiny. Any alternative means of authorising such operations would need to show that they would lead to an improvement on a system which has proved to be remarkably effective over many years. The place for judicial influence in this process is in the oversight role provided by the Intelligence and Security Service Commissioners.

I shall turn now to Amendment No. 125. The amendment allows the surveillance commissioners to add conditions to grants of approval. It should be remembered that the role of the surveillance commissioner is one of review. It is his function to review every authorisation for intrusive surveillance to satisfy himself that the decision was reasonable and that it met the criteria; that is, that it concerned serious

28 Jun 2000 : Column 947

crime; that it was proportionate; and that the action it sought to achieve could not be achieved by other means.

If the surveillance commissioner agrees that the decision was reasonably made, he will approve it. If he does not believe that the decision was reasonable, he will cancel or quash the authorisation. We do not believe that it is his role to second-guess the authorising officer or to impose extra conditions on the authorisation. Authorisations are fundamentally operational decisions, best left to those most qualified to take them. It will be the authorising officer who, at the end of the day, is accountable for that decision and will have to justify it, if necessary, in court. However, nothing can prevent the authorising officer himself from attaching conditions or limitations on who, how, when, where or what kind of surveillance may be undertaken.

Amendments Nos. 127 and 132 would require the surveillance commissioner to give prior approval to Security Service intrusive surveillance authorisations which were granted on serious crime grounds. We believe that they are moving in a similar direction to the amendments that we have just discussed. For the same reasons, we do not believe that the amendments would be appropriate. They would represent a movement towards judicial warranting, with which we do not agree. Furthermore, they would undermine, to a certain extent, a central element in the accountability of the Security Service to the Home Secretary.

We cannot accept Amendments Nos. 128 to 131. It is worth bearing in mind that all the surveillance commissioners are serving or former High Court judges. This should continue to be the case for all those commissioners involved in intrusive surveillance authorisations. There are clear statutory powers for the commissioners to quash and cancel authorisations. Furthermore, there are clear powers for them to order the destruction of records when they consider that to be appropriate. We are referring to senior judicial figures; the issues involved may well be complex; we believe that it is right to leave the discretion in their hands.

Finally, Amendments Nos. 135 and 136 would reduce the length of time a warrant can be granted or renewed for intrusive surveillance carried out by the intelligence services from six to three months. The investigations carried out by these agencies differ from those carried out by the police and customs. They tend to be for long-term investigations involving national security and the economic well-being of the UK. We believe that a six-month warranting system for such operations is right and appropriate. The difference is reflected in the differing lengths of authorisations for interference with property under the Intelligence Services Act and the Police Act. Those differences should remain.

The noble Lord was right to bring forward these amendments in order to test the Government on whether what has been put into the Bill so far is absolutely right. We believe that the new regime sits

28 Jun 2000 : Column 948

well alongside the existing set-up in the Police Act and the Intelligence Services Act, and I hope to some extent that I have reassured the noble Lord.

 

Lord Hylton: While we are still debating Clause 30, I understand that the senior authorising officers will be taking operational decisions, and that in nearly all cases they are individuals who are heads of their force or branch. However, in subsection (5)(l) at the bottom of page 33, the designated Customs officer can be "any customs officer" designated by the commissioners. How many Customs officers would be expected to be designated? Also, will he define more closely the phrase, "economic well-being of the United Kingdom". I suspect that I ought to know the answer. The noble Lord has perhaps defined it several times already. If that is the case, I apologise to him.

 

Lord Bach: If the noble Lord will forgive me, I do not intend to return to that issue, particularly when we have a large number of amendments to get through. If he will be kind enough to look in Hansard at some of our early debates in Committee, he will see that there was a debate on what that phrase means. I believe it was on the first day of Committee.

So far as concerns Customs, the noble Lord is right. Authorisation for intrusive surveillance is by a chief officer, but also, except in urgent cases--and this is very important--with the prior approval of the surveillance commissioner. Only in urgent cases can that chief officer give authority. In most cases it will be done only with the prior approval of the surveillance commissioner.

The noble Lord asked whether any designated Customs officer will do. The answer is no: the code of practice, which, I am happy to say, is due to be published in draft form before the Report stage, will limit this provision to the chief investigation officer and deputy chief investigation officer before authorisation. No one else will be allowed to do it.

 

Lord McNally: I commend to the noble Lord, Lord Hylton, a reading of the Bassam definition of "economic well-being". I am sure that it has already reached most of the economic textbooks.

I make no apologies for putting forward these amendments. I think that, sometimes, Parliament is cowed at the thought that the security services, the "spooks", are involved, and we are all supposed to suspend judgment. While I fully respect the work that our security services do, it is important that Parliament continues to scrutinise the powers that we grant them and how they use those powers. That was the spirit in which the amendment was moved and I shall read the Minister's reply with care. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30, as amended, agreed to.

28 Jun 2000 : Column 949

Clause 31 [Rules for grant of authorisations]:

 

Lord Bach moved Amendment No. 124A:


    Page 34, line 36, leave out ("or of the City of London police force") and insert (", of the City of London police force or of a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 31, as amended, agreed to.

Clause 32 [Grant of authorisations in the senior officer's absence]:

Lord Bach moved Amendments Nos. 124B and 124C:


    Page 36, line 7, at end insert--

     


("( ) a person is entitled to act for the chief constable of a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967 if he holds the rank of assistant chief constable in that force;").


The noble Lord said: I have already spoken to these amendments. I beg to move them en bloc.

On Question, amendments agreed to.

Clause 32, as amended, agreed to.

Clause 33 [Notification of authorisations for intrusive surveillance]:

[Amendment No. 125 not moved.]

6.15 p.m.

 

 

Lord Lucas moved Amendment No. 126:


    Page 37, line 32, leave out subsection (6).

     

The noble Lord said: I beg to move.

 

Lord Bach: It is important that public authorities have a statutory basis for carrying out covert activities as soon as possible and that provisions are in force before the Human Rights Act is implemented on 2nd October this year. This is necessary to safeguard the use of these valuable techniques by law enforcement and other agencies. The police and Customs will not be able to use the provisions relating to intrusive surveillance until an order has been made detailing the information to be contained in notifications to surveillance commissioners.

Such orders will be subject to parliamentary approval. However, in order to allow such an order and rules to be made by the Secretary of State in the absence of Parliament between the period when the Bill receives Royal Assent and Parliament reconvenes after the Summer Recess, the initial order has been made subject to the 40-day rule. This means that the initial order, and only the initial order, can be made without Parliament's prior approval. It would, however, need to be approved by Parliament within 40 days of being signed. The fact that the order in question will still require parliamentary approval is an important consideration.

28 Jun 2000 : Column 950

Most important of all is the fact that the Committee on Delegated Powers and Deregulation has considered this provision. Its report considers both the provisions and the parliamentary procedure provided for them to be appropriate. We place much store by that, as I am sure will the committee. We have tabled some amendments in response to its provisional recommendations. I hope that the noble Lord will withdraw his amendment.

 

Lord Lucas: I am grateful for that explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 33 agreed to.

Clause 34 [Approval required for authorisations to take effect]:

[Amendments Nos. 127 and 127ZA not moved.]

 

Lord Bach moved Amendment No. 127A:


    Page 39, line 28, at end insert ("or

     


(iii) a chief constable of a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967,").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 34, as amended, agreed to.

Clause 35 [Quashing of police and customs authorisations etc.]:

[Amendments Nos. 128 to 131 not moved.]

Clause 35 agreed to.

Clauses 36 to 38 agreed to.

Clause 39 [Secretary of State authorisations]:

[Amendment No. 132 not moved.]

Clause 39 agreed to.

Clause 40 agreed to.

Clause 41 [General rules about grant, renewal and duration]:

 

Lord McNally moved Amendment No. 133:


    Page 44, line 25, leave out ("twelve") and insert ("three").

     

The noble Lord said: This and Amendment No. 134 are wing-clipping and probing amendments. Twelve months seems rather a long time for powers to remain in existence. I beg to move.

 

Lord Bach: To reduce the length of an authorisation for the use of a covert human intelligence source from 12 to three months is unnecessary and would place great demands on public authorities that use sources in their everyday work.

The use of a covert source is a long-term activity that needs to be authorised for a longer, rather than a shorter, period of time. Informants and agents can take a long time to build up a relationship or to elicit a particular piece of information. We think that 12 months is about right as a sensible gap between authorisations, and there are extra safeguards in the Bill in recognition of this relatively lengthy authorisation period.

28 Jun 2000 : Column 951

The Bill requires that there should be at least two officers with responsibility for looking after each source. One should be responsible for the day-to-day care and for the security and welfare of the source. A second will have responsibility for a more general oversight of the use of that source. A person within the authority will have responsibility for maintaining a record of the use made of the source, and the information to be contained in those records will be the subject of regulations by the Secretary of State. Those extra safeguards are necessary because of the 12-month authorisation period.

Because authorisations last longer, Clause 41(6) directs an authorising officer to particular matters for consideration at the time of renewal. But, as can be seen from the detail of these extra requirements, they are specifically aimed at issues that may arise in respect of the use of a covert source. The idea that these safeguards might also work in respect of surveillance is misguided. Also, the shorter period for surveillance authorisations makes such extra safeguards slightly less necessary. We do not believe that the amendment could work in practice.

 

Viscount Astor: We on this side of the Committee feel that three months would be far too short. It would involve excessive paperwork and excessive bureaucracy for the authority concerned.

There may be a case for a slightly shorter period; the noble Lord, Lord McNally, might consider six months. However, in the light of what the Minister has said it is clear that it is quite a long-term matter, and to have to come back every three months would be an excessive burden.

 

Lord McNally: Against such an array of judgment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 134 not moved.]

Clause 41 agreed to.

Clause 42 [Special rules for intelligence services authorisations]:

[Amendments Nos.135 and 136 not moved.]

Clause 42 agreed to.

Clause 43 [Cancellation of authorisations]:

 

Lord Bach moved Amendment No. 136A:


    Page 47, line 22, at end insert ("or

     


(iii) a chief constable of a police force maintained under or by virtue of section 1 of the Police (Scotland) Act 1967,").

On Question, amendment agreed to.

28 Jun 2000 : Column 952

Clause 43, as amended, agreed to.

After Clause 43

 

Lord Bach moved Amendment No. 136B:


    After Clause 43, insert the following new clause--

     

RESTRICTIONS ON AUTHORISATIONS EXTENDING TO SCOTLAND

(" .--(1) No person shall grant or renew an authorisation under this Part for the carrying out of any conduct if it appears to him--
(a) that the authorisation is not one for which this Part is the relevant statutory provision for all parts of the United Kingdom; and
(b) that all the conduct authorised by the grant or, as the case may be, renewal of the authorisation is likely to take place in Scotland.
(2) In relation to any authorisation, this Part is the relevant statutory provision for all parts of the United Kingdom in so far as it--
(a) is granted or renewed on the grounds that it is necessary in the interests of national security or in the interests of the economic well-being of the United Kingdom;
(b) is granted or renewed by or on the application of a person holding any office, rank or position with any of the public authorities specified in subsection (3);
(c) authorises conduct of a person holding an office, rank or position with any of the public authorities so specified;
(d) authorises conduct of an individual acting as a covert human intelligence source for the benefit of any of the public authorities so specified; or
(e) authorises conduct that is surveillance by virtue of section 45(4).
(3) The public authorities mentioned in subsection (2) are--
(a) each of the intelligence services;
(b) Her Majesty's forces;
(c) the Ministry of Defence;
(d) the Ministry of Defence Police;
(e) the Commissioners of Customs and Excise; and
(f) the British Transport Police.
(4) For the purposes of so much of this Part as has effect in relation to any other public authority by virtue of--
(a) the fact that it is a public authority for the time being specified in Schedule (Relevant public authorities), or
(b) an order under subsection (1)(d) of section 39 designating that authority for the purposes of that section,
the authorities specified in subsection (3) of this section shall be treated as including that authority to the extent that the Secretary of State by order directs that the authority is a relevant public authority or, as the case may be, is a designated authority for all parts of the United Kingdom.").

On Question, amendment agreed to.

Clause 44 agreed to.

Clause 45 [Interpretation of Part II]

Lord Bach moved Amdt No. 137:


    Page 48, line 5, leave out ("(5)") and insert ("(5A)").

On Question, amendment agreed to.

[Amendment No. 138 not moved.]

 

Lord Bach moved Amendment No. 138A:


    Page 49, line 6, leave out subsection (7).

On Question, amendment agreed to.

28 Jun 2000 : Column 953

Clause 45, as amended, agreed to.

Clause 46 [Notices requiring disclosure of key]:

 

Lord Lucas moved amendment No. 139:


    Page 49, line 35, leave out (", or is likely to do so").

The noble Lord said: Here we come upon a clause that the Government have been kind enough to rewrite extensively and at the very last moment. I cannot pretend that I or anyone that I have talked to has had time to comprehend the details and effects of all these changes. Therefore, I intend to use my comments on this and subsequent amendments to explore what the Government have done and where we are now. It may be necessary. with the help of my colleagues on the Front Bench, to ask for a recommittal of this clause when we have had time to absorb the effect of all the changes, but for now I await advice and information from the Minister with great interest.

This whole clause is extraordinary. It addresses a problem that the Government imagine they might find their agencies in from time to time of being unable to decrypt information. In all the years that cryptography has been available, there has been only one case in the United Kingdom in which the Government could not decrypt all the files they needed on one particular pornographer's hard disk.

It is extraordinary that so much damage should have been done worldwide to the reputation of the United Kingdom as a place to do e-business, with anxieties and recriminations echoing round the globe from international lawyers to those who specialise in the Internet. I hope that we may reach a point with the Bill where we are able to allay some of the fears, but it will take a long time for all the damage that has been done to die away. It is extraordinary that it should be done, when there is so little need for this clause as a whole.

Encryption is in theory perfect. One can hide anything in a way that cannot be broken. Even if the clause were enacted in the way in which it was originally written, before the Government's latest amendments, it would be possible to hide anything one wanted. Internet communications will use ephemeral keys, and there will be no way of breaking that system. Cryptography has evolved in ways which have built-in deniability. The whole way in which the clause has been written assumes that there is only one key, which will reveal one set of information out of an encrypted file. But it is very easy to create a system whereby out of an encrypted file I can produce a Shakespeare sonnet or an order for hard drugs, depending on which key I use to unlock it. There is no way in which the Government can prove that there is a second key if I produce to them a first key.

One can hide whole file structures. One can hide the existence of files through the use of keys that go down in layers, so that the first key will reveal one file structure, but if one applied another key it would reveal hidden files below. If one uses suitable methods of hiding the files it is impossible to prove that the files even exist.

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Cryptography using one-time pads is a technique we can remember from the war years. That is in theory perfect. There are still wartime codes that have not been broken because the one-time system was used perfectly. There is now the practice, which will doubtless be used more in future, of using data havens, of storing one's data remotely. Again, as long as one takes care to encrypt and hide one's links to it there can be no way of proving that one has it.

We are up against a system that is technically perfect, and the sort of attack envisaged by the Government will be useless against the serious and careful criminal. The sort of attack that works in practice, that has worked in all but one case to date, results from the fact that anyone doing cryptography is human, that hiding one's data in a consistent way is extremely tedious, and that people tend to take short cuts, and either as a result, or through the methods outlined in Part II--and there are plenty of them that can be used with computers--one can uncover the keys and the information needed to break people's cryptographic systems without going at it in the way envisaged in this part of the Bill.

What really frightens people about the way in which the clauses are drafted is that because they will be pretty useless against the serious criminal they will be used only against casual traffic, and, more important, will be available for use against messages received and communicated by substantial international businesses. Anyone who uses the Internet, which is essentially an open system--there is nothing secure about it--must use a high level of cryptography and assure clients, customers and associates that his systems are secure. Anything that puts that in doubt or makes business believe that by conducting this activity in the UK it lays itself open to international law suits or merely produces a loss of confidence that data stored in the UK is not as secure as data stored in a country which is not governed by this kind of legislation, even with the latest government amendments, will result in a substantial loss of business to this country.

I do not believe that business has had time to react to, and review, the latest amendments. We shall wait and see how it reacts to them and to today's debate. If, as I fear, the conclusion is that the Government have not gone nearly far enough, as suggested in today's Financial Times, we should either excise the clause from the Bill or insert a provision to say that it shall not come into effect until a further measure has been passed to authorise its implementation. A method must be found to ensure that the Government have those parts of the legislation that they require to comply with the Human Rights Act for the activities that they currently undertake but are denied the ability to trespass into areas where they have no present need to be, potentially at great cost to the UK's international business and its economic wellbeing, to use the famous definition. We should not imperil that for so little gain. If more time is needed to consider this matter and produce something with which everyone is content, we should provide the Government with a mechanism whereby that end can be achieved.

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The amendment excises the words "or is likely to do so". That wording occurs also in several amendments to the subsections to Clause 46 tabled by the noble Lord, Lord McNally. I believe that I see what the Government intend. They want to be armed with an authorisation to demand the key if they find an encrypted file when they search someone's premises. I understand that. However, in effect the way that the provision is written means that they can demand the key to future communications that arrive in the course of the next few days. Therefore, any business that is subject to such a demand must keep its whole cryptographic system open for the investigating authorities. It must leave a gaping wound, as it were, in its security until the investigating authorities say that it can be closed. There is no way to supply the text of messages yet to come; one must supply the key. To leave in this particular phrase is very much against the spirit of what the Government say they want to achieve in tabling their new amendments unless the wording can be tightened up to cover a much shorter timescale and allow the authorities access only to files which they are about to discover in premises that they are about to raid. I beg to move.

6.30 p.m.

 

 

Lord McNally: I agree with much of what the noble Lord said. I added my name to the amendment because, as presently drafted, the provision seems to be "future proofing" gone mad on the part of the Government, as the noble Lord explained in his concluding remarks.

To save a repetitive speech, we have arrived at the crux of the Bill in terms of clearing the hurdle of business disquiet. We must all assess whether what the Government propose in Clauses 46 and 47 meets the concerns of business. I was interested in the initial reaction of one of the companies concerned, Vodafone. Its concern was that in seeking a proportionate response, to use a favourite expression of the noble Lord, Lord Bassam of Brighton, the provision leant too far towards the requirements of the relevant authorities and failed to take account of the needs of the businesses in question. A good deal of the debate on the clause will revolve around the question whether the powers that the Government seek are proportionate in terms of the real or imagined evils that they seek to counteract and the burdens that they place on business.

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 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 am not a member of the "cyberspace tendency" which believes that this is all beyond us. Who knows? Perhaps those countries which have not yet grappled with a legislative framework for e-commerce will regret it or look at our attempts as pioneering work in the field.

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I hope that both sides will approach this matter in a constructive way. Industry, which has quite legitimately lobbied and stirred up media and political and parliamentary interests and obtained a response from the Government, should take a proper look at what this means for business. I also hope that, having emerged from its tetchy phase, the Government are now willing to listen to industry if further constructive points can be made. The context in which the noble Lord moved the amendment was extremely wise and constructive. If both sides approach this part of the Bill in that way we shall produce clauses that are acceptable to industry and provide a legislative framework for e-commerce in future.

Lord Cope of Berkeley: I entirely agree with the general points spoken to by my noble friend Lord Lucas. So far this Bill has of itself been extremely damaging to Britain's interests because of the perceived threats that it poses. Even if in the course of debates we make amendments which produce a Bill that is 100 per cent acceptable some of that damage will remain. I do not want to expand too much on that point at this stage, but I firmly believe that that is the case.

The aim of all concerned, including the Government, should be to amend the Bill so as to minimise the damage that has already been done and the damage that will arise in future. Part of the difficulty arises from the fact that the Government have been determined that we should be pioneers in this matter. I am all for Britain being a pioneer in e-commerce, and all to which that relates--the Government say that they are in favour of that too--but I am not in favour of Britain being a pioneer in threatening e-commerce. That is what the Bill as originally drafted did; and to some extent still does.

Keys, encryption and security are important to the Internet and every kind of e-commerce. At the most basic level, if I buy, as I have done occasionally, some item on the web and feed in my credit card number, I need absolute confidence that that number will not leak from the company selling to me over the Internet, otherwise I shall not buy from it; I shall use some other method. However, at the more elaborate levels of commercial and banking contracts, that concern is multiplied to a far greater importance. That is why the banks and commercial companies and organisations have been so sensitive about this section of the Bill.

I am not so alarmed by the phrase "is likely to do so" as the Liberal Democrats. If we are trying to gain information about an individual who is suspected of being, for example, a money launderer, and he is the customer of a specific bank, it is not unreasonable for the authorities to say to the bank, "We believe that you have in your possession the documents relating to the transactions already carried out by the suspect. We need to see what was said in those and future documents when he has further transactions". It is that kind of case that I believe those words cover.

The noble Lord, Lord McNally, referred to real or imagined evils to be countered by these powers. Although sometimes the suspects may prove not to

28 Jun 2000 : Column 957

have done anything wrong, I believe that there are some very real evils to be countered. That is why it is necessary to provide the correct powers which will give safeguards. Nevertheless, we need those powers.

Because of the way in which the Bill has been prepared, this new dimension concerning the Internet, and so on, has had to be added on to the rewriting of the existing telephone tapping and surveillance provisions owing to the imminent arrival of the Human Rights Act. To disentangle them, or to put a hold on the Internet provisions until they are further refined, I believe would be desirable. Unfortunately, the powers are not in one single part of the Bill; they appear throughout. That makes it difficult to deal with them. Nevertheless, perhaps the Government could find a way to leave the Internet provisions on the shelf for only a relatively short period of months while we try to get them right. We need them, but they must be the correct provisions if we are not to destroy the British advances in e-commerce and lose the advantages that we have.

6.45 p.m.

 

 

Viscount Goschen: The noble Lord's amendment serves as an excellent introduction to the part of the Bill which has caused perhaps the most controversy. The issue of encryption goes to the heart of the Bill. It sums up the concerns of the industry.

We are not talking only about e-commerce, the new media industry, but about any international business which wants to operate, has existing operations or aims to set up business in the UK. A recurring theme has been globalisation. It is increasingly easy for companies to locate business where the environment is most conducive for them. There is no doubt that the issue of access to encryption keys causes severe worries among a number of major corporations, not only those involved in e-commerce.

At the beginning of the Committee stage, the Minister was good enough to say that he was in listening mode. He has been as good as his word--to the extent of rewriting the Bill for your Lordships' House. It will be difficult to disentangle the new provisions in the course of the Committee stage today. Direct questions need to be answered on the Minister's new provisions. We shall wish to return to a number of elements on Report.

As regards the amendment, it is important to emphasise the degree of concern which surrounds this area. We welcome the moves the Government have made in a constructive spirit. However, the measure will require further examination to see what needs to be done.

 

Lord Bassam of Brighton: I start with an observation on the words of the noble Viscount, Lord Goschen. Throughout the Bill I have sought to be constructive and to offer constructive opportunities to all to make intelligible and intelligent criticisms. We have invited in all sectors of business. To my knowledge, we have not said, "No, go away" to anyone. That approach has

28 Jun 2000 : Column 958

now been widely acknowledged. Therefore, when the Government are criticised for extensively rewriting the Bill, or for putting forward provisions at the very last moment, it is because we have been listening--as we always said we would--and there is no other time when we can make these changes. I am sure that Members of this House will recognise and understand that.

 

Viscount Goschen: I complimented the Minister; I did not criticise him. However, I do not extend that compliment to his colleagues in the Home Office who have direct responsibility for this legislation. This Bill should never have come to either House of Parliament in the state that it has. Now that the Bill is here, I am pleased that the Minister takes note of concerns.

 

Lord Bassam of Brighton: I am grateful for the compliment; I am prepared to live with it! I wish also to thank the noble Lord, Lord McNally, for imparting to us the knowledge that he still believes in parliamentary democracy. That was a valuable comment, was it not; otherwise why would we be here?

 

Lord McNally: There is a serious point. 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.

 

Lord Bassam of Brighton: I entirely understand. I have heard that argument too; it is interesting.

However, there is one consistent and recurring theme: that in bringing forward this legislation we have done some fundamental damage to this industry. I find it hard to accept that. I believe the legislation has been brought forward for entirely the right reason; that is, to find a sensible system of regulation. In doing that, the Government must listen to intelligent and well-founded criticism. The Government have tried to do that.

The noble Lord, Lord McNally, referred to Vodafone's off-the-cuff criticism of the Government's moves thus far in bringing forward the amendments today. If Vodafone has further specific points it wishes to put, the Government will continue to listen. The Government do not claim that they are absolutely right, although they believe that they are. Nevertheless, the Government want to ensure the best legislation; legislation that works to the better interests of industry and government, but more particularly industry because that is wealth-generating and is for the good of the country's economy.

I turn to the amendments spoken to by the noble Lords, Lord Lucas and Lord McNally. I listened to what was said about, in particular, the comments made by the noble Lord, Lord Lucas, and I shall work through those observations. In particular, I noted the point made by the noble Lord, Lord Cope. That was a very constructive response to that particular clause.

It is understood that the objection is the futuristic element. If that futuristic element were to be removed, the Government believe it would have a detrimental

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effect on the practical use of decryption power. The noble Lord, Lord Lucas, asked whether the power was required at all. The Government believe that it is. The noble Lord probably believes it is required, but only in very tightly restricted circumstances. That is where the debate is and it is to be hoped that at the end the Government will have got it right.

If the amendments were to succeed they would very much limit the effectiveness of the decryption power. The Government resisted such amendments in another place because of that concern.

It is recognised that there is a futuristic element in Clause 46(1)(a) to (e). The concern is understood to be that that would permit what are colloquially termed "fishing expeditions" for keys, perhaps long-term keys to future information. The Government believe that there is no such effect and I shall try to clarify why. First, it is important to remember that the decryption power may be authorised only in respect of particular protective material which has been or is likely shortly to be lawfully obtained, so it is very closely defined.

The Bill does not permit the power to be used solely for speculative fishing for keys. The Government believe Clause 46(1)(a) to (e) is needed for cases where there are reasonable grounds for anticipating that, for example, a suspected criminal is using encryption to protect material, and reasonable grounds for believing that the location of the relevant key to that material is known. In such instances, the futuristic element allows an agency to apply for the power to serve a Clause 46 decryption notice at the same time as an application is made to use the underlying power to lawfully obtain the material in question.

Perhaps I may give an example. It is entirely conceivable that there will be cases where the police have very reasonable grounds for believing that an individual is using encryption; for example, a suspect in a criminal investigation. The police could apply to the court for a warrant to search his premises. Therefore, the Government believe it right that the police should be able to apply for authority to serve a decryption notice at the same time as they apply for a search warrant. Clause 46(1)(a) allows that.

Similar considerations apply in other instances as set out in Clause 46(1) where use of the decryption power may be authorised. It is conceivable that there could be reasonable grounds for anticipating that encryption will be encountered in all the circumstances where the Bill permits decryption power to be used. That is why the futuristic element is included in Clause 46(1)(a) to (e).The proposed amendments would mean that an application to the relevant authority, be it a judge or the Secretary of State, for the power to serve a decryption notice could be made only after the encrypted material had actually been obtained under the warrant. Clearly, that could lead to critically damaging delays in what might be a very fast moving investigation. It is not believed that that is the intention in promoting these amendments, but that would, nevertheless, be their effect. The Government would therefore argue that for those reasons the futuristic element is necessary. Members of the

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Committee who proposed the amendments are invited to take careful consideration of the impact of removing that part of the Bill.

The Government do not say that the Bill permits fishing expeditions. That is not our intention. I want that to be clearly understood and on public record. The Government have carefully explained this to industry, not least the Institute of Directors, which quite rightly and understandably raised the query. It is hoped that with that explanation Members of the Committee who brought forward the amendments will feel about to withdraw them.

Lord Lucas: The noble Lord, of course, makes a very good point with which I entirely agree. I hope I said that in my opening speech. But where the police are about to raid someone's premises, or an equivalent venture is about to be undertaken, it is very sensible that the police should take a Section 46 warrant with them so that they can pick up the key at the same time they pick up the information. If these subsections were directed at that, it is not believed that they would cause any difficulty.

What causes difficulty is what the wording would allow; for instance, that part of the Bill relating to the interception of communications and the application for a warrant in advance of the communications. A person may go to a bank and say, "This person may be sending messages to you using your public key, and we therefore need to have your private key to decrypt them. We expect the messages to come in over the next couple of weeks, so you must keep your public key the same". That would be an extremely damaging position for a bank. That is what industry and I--and, I hope, the Government--would, on contemplation, find unacceptable. It is limiting the scope and timescale of the measure. It would allow exactly what the noble Lord first described, but it would not put industry in a position where its security system could be opened up and kept open. That is very much the import behind my argument. I do not believe that that question has been answered, and unless the Minister has any further comments to make we shall return to the matter at a later stage of the Bill. Unless anyone else wishes to intervene, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

 

Lord McNally had given notice of his intention to move Amendment No. 139WA:


    Page 49, line 38, leave out (", or is likely to do so").

     

The noble Lord said: Our concern remain the long-term key which is the open door and the one which undermines confidence both in business and in civil liberties. It is believed that we shall return to the matter, and therefore I shall not move my amendment.

[Amendment No. 139WA not moved.]

[Amendments Nos. 139XA to 139ZA not moved.]

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The Earl of Northesk moved Amendment No. 139A:


    Page 50, line 5, at end insert--

     


("( ) If any person with the appropriate permission under Schedule 1 believes on reasonable grounds--
(a) that any person is able to put the protected information into an intelligible form,
(b) that the imposition of a requirement to disclose the information in intelligible form, or to disclose the key to the protected information, is--
(i) necessary on grounds falling within subsection (3), or
(ii) likely to be of value for purposes connected with the exercise or performance by any public authority of any statutory power or statutory duty,
(c) that the imposition of such a requirement is proportionate, taking into account the full consequences of its disclosure, to what is sought to be achieved by its imposition,
(d) that the information in intelligible form, or the key, cannot reasonably be obtained by the person with the appropriate permission without the giving of a notice under this section,
the person with that permission may, by notice to the person whom he believes to be able to put the protected information into an intelligible form, require the disclosure of that information in an intelligible form, or, in the circumstances provided for in section 47, the disclosure of the key.").

The noble Earl said: At the outset, without a hint of criticism, I express both gratitude for and appreciation of the amendments the Government have tabled to this part of the Bill. They go some way towards meeting the concerns which have prompted me to table my own amendments in this group. My own view has always been that if we must have key disclosure, the correct methodology to apply is one where efforts to obtain plain text are properly exhausted before keys are sought.

Here I echo the complaint of the noble Lord, Lord Lucas, and promote the thought that recommitment of that part of the Bill should be actively and seriously considered. There has not been time fully to consider these amendments. The revised versions of the relevant clauses were received at approximately six o'clock this evening. I retain a host of reservations, but it may be that the Minister's explanations will ameliorate those.

Therefore, rather than launch into an exposition of my amendment, it seems to me that the most helpful and useful service I can offer the Committee is to invite the Minister to explain those of the Government. Realistically, they are the substantive business in the grouping. I cannot help feeling that that would make for a tidier debate and I trust that it meets with the approval of the Committee. I beg to move.

 

Lord Hylton: When the noble Lord, Lord Lucas, moved an earlier amendment, he went so far as to say that he thought the clause would be useless against serious crime. I apologise if I have overstated his remarks; I hope that I have not.

It would be helpful if the Government could say whether they agree or disagree with that position. If they disagree, can they say why?

28 Jun 2000 : Column 962

7 p.m.

 

 

Lord Bassam of Brighton: I thank the noble Earl, Lord Northesk, for his tactful intervention and helpful observations. I shall move through an analysis of our amendments and comment on all the Opposition amendments.

The group of amendments covers a big question: when should the authorities be permitted to require that a decryption key be disclosed rather than simply the plain text of protected material? The associated issue is whether a party in receipt of a notice should be able to choose which key to disclose, if there is more than one which can carry out the necessary decryption. That is an important, but nevertheless secondary, question.

I recognise that this is a crucial issue, especially for industry. We have received a number of representations on the issue from the British Chambers of Commerce and the Institute of Directors. We have tried to allay their concerns by explaining just what the Bill actually states and what it seeks to achieve. We have also received helpful correspondence not least from the British Bankers' Association setting out its understanding of the way in which Part III of the Bill works. In the light of those representations, we have decided to recast these provisions. I fully accept that Members of the Committee will have to retreat and take time to study them in order to understand their impact more precisely.

In recognition of the views of industry, we made wide changes to Clause 47 in another place to add an extra test if keys are to be required. That was welcomed and Members of the Committee have proposed further changes. We have suggested our own amendments, which take account of the views of industry and cover the majority of points raised by the Committee.

Before addressing these changes, I should clarify one existing point on the keys versus plain text issue. In the Bill as drafted, there is already an extra test if keys are to be demanded. Imposing a direction that a key be disclosed is limited by Clause 47(4) to occasions where it is believed that there are "special" circumstances of the case making that necessary; and that imposing such a requirement is believed to be proportionate to what is sought to be achieved by so doing. I hope that that is clear: plain text first; extra test if keys are required. That is the important message which we must get over. If a key is required, the choice of which key to disclose, if there is more than one, rests with the recipient of the notice. The definition of "key" in Clause 52(1) applies. It could be a session key, a short-term key or a long-term key. The choice rests with the recipient of the notice and that is the important qualification which must be widely understood.

That is the position now. But, as I have said, parts of industry have voiced some concerns and asked whether we could find a way of giving greater prominence in the Bill to the disclosure of plain text and clarifying the issue over the choice of keys. Your Lordships' amendments in this group address those very points. We have listened to the genuine views we

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have received and have sought to rework Clauses 46 and 47 ourselves. The government amendments before the Committee are the result of that reworking.

The amendments we have tabled in the group seek to recast Part III in terms of our preference for plain text rather than keys; and to leave it up to the recipient of a notice to decide how to comply with a disclosure requirement. It is on trust.

We believe that the changes will be welcomed. We were certainly told by industry that such amendments would offer reassurance. Amendment No. 139D begins by recasting Clause 46 as a,


The existing necessary and proportionate tests for the use of the power remain with the reasonableness test amended to reflect the new structure, to which Amendment No. 141B refers.

Amendments Nos. 114A, 114D, 114F and 153B follow suit by making reference to "disclosures" rather than to "keys". Amendment No. 158B inserts a new clause which, again, represents a restructuring to underline the preference for plain text. The remaining government amendments in the group--namely, Nos. 159C, 161A, 171A, 183A to 183C, 195B and 225A--are consequential changes arising out of the recasting of Clause 46.

The point is that we have listened to industry's concerns and recast Clause 46 to provide reassurance. Disclosing the plain text of material will normally suffice and it is up to the recipient of a notice to decide how to discharge the disclosure requirement. The issue is disclosure, not key.

I believe that our amendments sweep up the majority of the concerns expressed by Members of the Committee, but a couple are left. These, too, cover some important points and provide me with an opportunity to clarify the Government's thinking.

As I see it, these remaining amendments are, first, Amendment No. 158C, which would mean that a requirement to disclose a key could be given only by a Secretary of State or judge where there are exceptional circumstances to the case. Amendment No. 164A would do something similar by replacing the existing Clause 47 and would impose further restrictions on the circumstances when a key--as opposed to the plain text--may be demanded. Amendment No. 163 seeks to widen the considerations which must be taken into account in deciding whether it is proportionate to demand a key.

Let me take those in turn. Amendments Nos. 158C and 164 would both place further restrictions on the circumstances when a requirement to disclose a key might be imposed. I believe that both would prove too restrictive in practice. Both set the test that there must be "exceptional" circumstances to a particular case.

As we indicated in another place, we gave very considerable thought to putting in such a test ourselves, but we concluded that in practice that might prove to be too restrictive, with the potential to undermine the effectiveness of the power.

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That matter was debated at the Report stage in another place, but perhaps I may explain it again. In the case of decryption requests made to legitimate businesses, a requirement to disclose a key, where the plain text is available, would certainly, it seems to me, be most unusual. The difficulty for the law enforcement agencies surrounds the use of the power against those suspected of involvement in criminality. In these cases--where there may be doubt about the bona fides of the person being served with a notice--requests for keys may perhaps be more frequent. The future is uncertain and we cannot know how often this might arise. But Clause 47(4), as drafted, limits the power to demand a key; and the case must be a special one. We believe that that is the most appropriate test.

The limbs at paragraphs (b) and (c) and the timing point at subsection (2) of Amendment No. 164 are exactly the kind of considerations that will need to be gone through with the existing Clause 47. However, we believe that the cumulative effect of the way that the amendment works is too restrictive.

In resisting the amendments, it may be helpful if I clarify again our thinking on keys. We have narrowed down on the face of the Bill the circumstances in which a key can be required to be disclosed. We have imposed an extra test and that has been welcomed. Members of the Committee may ask legitimately what kind of case we might consider to be special.

As I indicated elsewhere, we shall cover that issue in the code of practice, which should be available before Report. However, I believe that it may be useful if I offer some illustrative examples. First, trust, to which I have referred already, becomes an issue when there is doubt about the bona fides of the person or body being asked to provide the plain text. In a criminal investigation, for example, law enforcement agencies will need to be sure that the plain text of protected material is the correct text, otherwise doubts could easily be cast in court during a future prosecution on the veracity of the information.

The second example relates to timeliness. In some surveillance operations which involve interception, for example, it may be imperative for the ongoing decryption of protected material to take place in real time, or as close to that as possible. Potentially, delays could be life-threatening, and I am sure that we can imagine circumstances in which that may be the case. If whoever has the key to protected material cannot carry out the decryption quickly enough in time-critical operations, but the authorities can, it may be considered necessary to ask for a key. I believe that that example is clear.

I should stress that in certain cases there may be technical solutions to these problems; for example, where they affect the timeliness issue. However, the fact is that in some cases solutions--technical or otherwise--may not be available. Therefore, the Bill needs to have the flexibility to allow for keys to be requested, but only where special circumstances make that necessary and where it is proportionate to the aim of imposing such a requirement. I believe that that is an important balancing point.

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Therefore, as are other parts of the Bill, Clause 47 is a reflection of the delicate balancing exercise that we are trying to effect in this area. I believe that in many ways we are trying to deal with a future danger. It is difficult, but we believe it to be entirely right that we do so. I would also argue that no responsible government could or should seek to do otherwise. I believe that it would be foolish of government to ignore that.

We made changes to Clause 47 in another place because we are seeking genuinely to strike the right balance between providing effective powers and allaying industry and civil liberties reservations about the Bill. I believe that the current tests for requiring the disclosure of a key strike the right balance and that these amendments would tip that balance in the wrong direction.

I believe that I may not have addressed fully Amendment No. 163 in my comments on the government changes. That amendment seeks to spell out one of the considerations which must be taken into account in deciding whether it is proportionate to demand a key. I understand the concerns of noble Lords but believe the amendment to be entirely unnecessary. The considerations that they seek are implicit in the proportionality test which is already in the Bill in Clause 47(4)(b). Why are keys needed? They are needed in order to put particular protected data into intelligible form; that is, to turn particular encrypted text into plain text. That is, after all, the whole purpose of the power.

However, in deciding whether to require that a key be disclosed in a particular case, the person who authorises the power will need to address the question of proportionality in its widest sense. That includes considering what kind of key it is, what other information it gives access to, its commercial value and so on. We would be reluctant to accept the amendment lest it implies that other equally important considerations are somehow not relevant. However, I believe that there is nothing much between us on this issue. We must all remember that Clause 47 imposes an extra proportionality test; one is contained earlier in Clause 46(2)(c).

Importantly, the safeguards provisions set out in Clause 52 also have an impact here. Clause 51(2) requires measures to be in place to restrict the uses to which keys may be put. Where keys are obtained, the authority concerned will not be permitted immediately to decrypt all manner of other communications or data belonging to the individual or organisation which provides the key. It would be unlawful for it to do so. As set out in Clause 46, there must be separate lawful authority to obtain the protected material in the first place.

Perhaps I may suggest that we now consider the new situation. At present, if the police request electronic data from a bank, they will, for example, apply for an order under the Police and Criminal Evidence Act 1984 and serve it on the bank concerned. In return, the bank discloses the data together with a statement attesting to its bona fides. The police do not insist on

28 Jun 2000 : Column 966

accessing the bank's computers in order to discover whether they are telling the truth. They rely on the bank's integrity and, where necessary, use them as witnesses. We envisage a similar scenario with regard to encrypted material. The exception to that might be where a bank itself was suspected of involvement in criminality.

We have tabled amendments in order to meet industry concerns. I hope that they are welcome. If particular issues remain, we shall of course be happy to examine them to see whether we can offer further reassurance and remain consistent with our overall aims. In the meantime, I beg to move the government amendment in this group and, in the light of what I have said, ask Members of the Committee to withdraw their amendments.

7.15 p.m.

 

 

Lord Cope of Berkeley: As others have said, and as the Minister acknowledged, this important set of government amendments was tabled at the last minute. I should add at once that I believe it to be helpful to the Committee that the amendments were tabled. I do not criticise the noble Lord for deciding to do so at the last minute. At least we know the direction in which the Government's mind is moving, and, in fact, they have moved quite firmly in that direction. At the same time, I am sure the Minister will appreciate that it has made it difficult not only for the Committee but for others outside--to some extent, even more so for others outside--to read through the detail of the Government's amendment and to assess exactly what they are doing and whether it is sufficient.

I should like to put on record that we have been much helped--at least, I have been much helped--by the ever-helpful Foundation for Information Policy Research, which earlier today put on the web a copy of how these clauses will appear if all the Government's amendments are agreed to. That makes for much easier reading than going backwards and forwards between the amendments. Not for the first time, the foundation has been of great help to us in assessing the way in which the clauses will affect the situation.

The series of amendments tabled in my name and that of the noble Lord, Lord McNally, attempt to achieve something similar to that intended by the Government; that is, to put plain text in the front line and to allow applications for a key only when absolutely necessary. I accept at once that Clause 47, as it now is, contains the reservations to which the Minister referred. There is a difference in the wording and the Minister drew attention to that. Basically, the Government's wording continues to say that there need to be "special" circumstances, whereas we say that such circumstances should be "exceptional". That is a distinction, but I do not consider it to be as large a distinction as in some cases one might be led to believe.

However, a point on which I should like to be clear--I must admit that I am not clear about it at present--is ultimately who authorises the attempt to obtain the key as opposed to the plain text in a particular situation. As far as I can see, the person

28 Jun 2000 : Column 967

giving the notice does not have permission to insist on the key. Only the judge or the Secretary of State can order that the requirement can be complied with only by the disclosure of the key. That is the effect of the government amendments and those that the noble Lord, Lord McNally, and I have tabled. Given the drafting of Clause 47, the Government clearly agree on the importance of placing the production of keys in a significantly different framework from the production of plain text.

There are some other detailed points relating to the amendments, but I have dealt with the most important issue. If the Minister could give us an assurance along the lines that I have asked for, it would help us to accept the clause. He may say that it is obvious from the clause as written, but it is not obvious to me

Lord McNally: I shall not go into great detail. From what the Minister has said, I think that we are close to an agreement, but we shall read Hansard and take wider advice.

We seem to be putting the plain text at the forefront. We have been at pains to make sure that the acquisition of the key must not become a useful end in itself, because that would result in an open door, which has caused a great deal of concern. The Minister has reassured us and, as the noble Lord, Lord Cope, eloquently explained, that was the intention of our amendments.

 

Lord Blackwell: Like other noble Lords, I listened to the Minister with great interest and appreciated his argument, but despite the welcome movement on plain text, there are still a large number of issues, both of principle and of practicality, on which I am not fully satisfied. The issues of principle are the broadest ones. Although it may seem reasonable to the man sitting in Whitehall for the Government to have certain powers for use in exceptional circumstances, that fails to take into account the perceptions of people outside and their fears about how those powers may be used. That goes to the heart of whether these clauses are appropriate.

Leaving that to one side, there are other significant issues of practicality that have not been addressed, particularly on clause 46. They go back to some of the points that my noble friend Lord Lucas made. The word "key" is widely used in the Bill, and the amendments, as though we were talking about a key that could unlock something simply, like a door to a room. However, developing technology means that, in many cases, keys will not exist in that form. As I understand it, the dynamic generation of new keys may be ephemeral and it may not be possible after the event for somebody to say what the key was, because it was simply generated, used and destroyed.

There are some practical issues that I do not yet understand. Do the Government believe that it is technically feasible after the event to ask people to give them information that will enable them to go back and decode messages that have been encoded and transmitted using such ephemeral keys? I am not sure that it is possible. If the Government think that it is, we

28 Jun 2000 : Column 968

need to understand why, and how it can be achieved. If it is not technically feasible, the whole apparatus will fall flat on its face, because everyone will move to those forms of encryption that cannot be caught under the powers in the Bill. Only the honest and the simple will be constrained.

Even if it is technically feasible in a way that I do not understand, I am still not sure whether the language used in the Bill creates the powers to do whatever is necessary to understand enough about the systems that generate keys to give the Government the legal entitlement to find out how to decrypt messages. Whether the legal language in the drafting is right depends on the answer to the first question and whether there are technical solutions that will deal with ephemeral keys in particular.

I do not necessarily expect an instant response, but before we conclude, we need to understand whether the Government have answers to the difficult questions on the principles and practicalities of the clauses. If not, there is a danger that the legislation will be merely tilting at windmills and none of the aims of the Bill will be achievable as technology moves on.

 

Lord Lucas: I very much support what my noble friend Lord Cope has said. The important issue is the level of authorisation needed to obtain a key. If the authorisation has to come from a senior judge, people will take some comfort from the fact that it will happen only in exceptional circumstances. However, it might be that only the authorisation of an official is needed. How will the system work? Clause 46(1) allows the prospective key to be obtained in a wide variety of circumstances. Some information can be obtained only by having the key. If keys are going to be asked for frequently, it will be a tedious process if authorisation has to come from a senior level. To an extent, Clause 46(1) and the amendments rub against each other.

The Government also need to address the issue of self-incrimination. If someone knows that the data that they have encrypted will incriminate them, how can they be made to reveal the key?

 

Viscount Goschen: I welcome the thrust of the government amendments. Will the Minister tell us a little more about the special circumstances under which keys will be required?

Putting plain text to the fore is a move forward. I am trying to test how much the Government believe their own arguments. If there is a circumstance in which an agency of government has to resort to law to compel a company to give its information, is it likely then to believe the plain text which is provided? It is rather like asking someone to search his own house and then tell the police what he found when they arrived. In what sort of circumstances does the Minister envisage that plain text would suffice? One can imagine a number of such circumstances; for example, where a trusted organisation was asked to reveal information, perhaps, about an employee who was considered to be suspect.

28 Jun 2000 : Column 969

But does the Minister feel that that would be the case in the vast majority of circumstances? Whether or not this will work, as my noble friend Lord Blackwell, said, will the circumstances be so very special or will the Government use the excuse, as it were, that the plain text is just not good enough once the Bill is safely tucked away on the statute book?

7.30 p.m.

 

 

The Earl of Liverpool: I, too, express my gratitude to the Minister for the amendments that he has tabled, which may go some way towards allaying my fears.

I shall refer to my Amendment No. 163, which is buried in this enormous group of 34 amendments. Where the surrender of keys is being demanded, it is essential that such demands should be subject to the appropriate tests of both reasonableness and--I use a favourite word of the Minister--proportionality. I am afraid that I did not have the advantage of seeing the government amendments at six o'clock last night. I saw them only this afternoon at about three o'clock. To what extent does he believe that his amendments have answered the concerns raised in my Amendment No. 163?

 

The Earl of Northesk: Like other Members of the Committee, I thank the Minister for his full explanation. However, I hope that the Minister will forgive me if I take up a few points.

I should say for the record that I acknowledge the benefit to be derived from the primary purpose of this part of the Bill. It is self-evident that, where criminal elements avail themselves of the use of the protection of encrypted electronic messages, there are strong arguments in favour of law-enforcement agencies having adequate and appropriate powers to access such protected information. I emphasise my use of the phrase "adequate and appropriate powers". Like many others, I remain unconvinced that the way forward is for the UK Government to take what I perceive to be unilateral action in this area. My personal belief has always been, and continues to be, that that would be better delivered by means of international agreement.

The reasons are manifest. While my noble friend Lord Lucas has already elucidated them most eloquently, they bear repetition. First, the criminal fraternity will, in any event, develop ways round key disclosure. For example, with the free availability of steganography programmes from down-load sites, it would seem that the Internet community, let alone criminal elements, have already discounted that part of the Bill.

Secondly, there are legitimate concerns that the imposition of that regulatory regime will act adversely upon the UK's ability to compete effectively in both the e-commerce and financial services industries, the more so given that those are such hugely mobile industries.

28 Jun 2000 : Column 970

Thirdly, the more logical and effective recourse for law enforcement agencies in this area is through such means as forensic hacking. There must be a risk that that investigatory avenue could begin to play second fiddle to key disclosure. That would be extremely regrettable.

I have a few general questions. First, do the Government have a finger on the pulse of what percentage of encrypted traffic is derived from criminality? While I acknowledge that that is difficult to quantify, I have yet to see any figures which enable us to assess the scale and seriousness of the problem. Given the huge popularity of the Internet, logic leans me towards me the supposition that its use by criminal elements is, in reality, quite a small percentage of overall traffic.

The important point is that without that knowledge, it is all but impossible to assess--I use that word again--the proportionality of the Government's proposals.

Following on from that, it would be extremely helpful if the Minister could afford the Committee some insights into how other countries are facing up to that problem. In other words, how do the Government's proposals compare with practice, either existing or proposed, elsewhere in terms of scale and degree? Do other countries, particularly our competitors, have, or are they taking, powers to require key disclosure in whatever form? In the event that they are, how do their safeguards compare with the regime proposed in the Government's amendments. Needless to say, that is of paramount importance in assessing the sort of impact which the Bill may have on our competitive position.

I turn from the general to the specific. The Minister proposes a number of amendments which substitute the phrase,


with,


    "disclosure requirement in respect of the protected information".

That is all good and well. That is an essential part of the recast of the clauses. I simply ask the Minister why, in the circumstances, and for the sake of consistency, it is not possible to use the formulation,


    "disclosure of protected information in an intelligible form".

In other words, I should be grateful if the Minister will explain the distinctions between the two phrases.

At the risk of stating the obvious, there is a very significant and important practical point at issue here. One almost tires of saying it, but the single biggest obstacle to the take-up of e-commerce is that of trust in its confidentiality and security as a medium of communication and exchange. It must be said that a regulatory regime which conveys the perception that such matters are being compromised is, by definition, antipathetic to the Government's aspiration to make the UK the best and safest place for e-commerce in the world.

To be fair, the Government have said consistently that it was and is their intention that only in exceptional circumstances will Clause 46 notices

28 Jun 2000 : Column 971

require the surrender of keys. But that is not the way in which the Bill was originally drafted, nor, on my reading, do the amendments spoken to by the Minister entirely resolve the issue. However inexpertly, my amendments in the group, Amendments Nos. 139A and 164A, sought to achieve the same objective.

I have but one more point of concern which is relevant in this regard and I hope that the Minister will assist me with it. I am uncertain how the new cast of the relevant clauses will interact with other legislation, both here and overseas. In particular, are the Government entirely satisfied that in instances where the surrender of a key is required, there is no likelihood that inadvertent breaches of contractual or legal obligations for confidentiality will occur? It may well be that I am worrying unnecessarily on the point but some clarification from the Minister would help.

Finally, like my noble friend Lord Lucas, I subscribe to the view that, in the circumstances, the best solution available is to withdraw the whole issue of key disclosure from the Bill. With the best of imaginations, it is very difficult to formulate the sort of amendments required to unravel the harm which those proposals may cause to UK plcs.

Lord Bassam of Brighton: I am grateful to all Members of the Committee who have contributed to the debate. I am grateful also to all those who have made positive contributions, and most of the contributions were positive. I shall try to answer as many of the questions as I can, although I must study in some detail the questions of the noble Earl, Lord Northesk, and reflect on them because they were rather more complicated.

We can provide him with an extensive description as regards international comparisons but it may be that that is best done through correspondence.

The noble Lord, Lord Cope, asked who authorises the acquisition of the key in those circumstances. It is the Secretary of State, a circuit judge or magistrate or a police superintendent or equivalent in the Customs and Excise and Armed Forces. I believe that that answers that important point.

Quite rightly, the noble Lord, Lord Cope, was delighted, as we were, that Members of the Committee have been furnished so quickly with a revised version of the Bill. That was a helpful initiative. We also hope that the noble Lord, Lord Cope, and other Members of the Committee have similarly found helpful the document that we sent out to describe exactly how we see our revisions working. We shall continue to perform in that way because it is right that we put as much in the public domain by way of explanation, context and understanding as we can.

While no government likes criticism, it is essential. If it stimulates important debate and enables us to focus on hard issues, it does a great service. In this exercise it has been extremely helpful.

The noble Lord, Lord Blackwell, made comments that related to the point of principle and to matters of practicality. As I understand his comments, they seem very helpful. I hope that the way in which we have

28 Jun 2000 : Column 972

proceeded will be of help to him. When he reads Hansard I believe that he will see that we have tried to address points of principle and points of practical implementation.

The concept of "key" is defined in Clause 52 and it bears some close reading. If there is no key to encrypted data, clearly the powers cannot be exercised. The whole point about encrypted data is that someone somewhere will have the key to that data. That is plain.

It may be useful if I refer to the point raised by the noble Lord, Lord Lucas, in relation to self-incrimination. The Article 6 point can arise only in the context of criminal proceedings brought against a person who has been required to disclose a key and where the data that that key unlock are used by the prosecution in any proceedings against that person. Clearly, that will not arise in many cases--for example, where encryption requests are made to third parties, communication service providers, and not to the accused. We believe that our proposals are ECHR compatible, even when the holder of protected data is required to disclose the key. Of course, the key itself is not self-incriminatory.

In our view, the correct analysis is that a key has an existence independent of the will of the subject. We believe that that was explicitly approved by the European Court in the leading case of Saunders v. United Kingdom in 1996. The court found that the right against self-incrimination does not extend to the use in criminal proceedings of material that may be obtained from the accused for the use of compulsory powers, but which has an existence independent of the will of the suspect; for example, documents recovered under a warrant. I hope that that clarifies the issue for the noble Lord.

The noble Viscount, Lord Goschen, asked about the circumstances. I believe it would be circumstances in extremis. He also asked whether plain text would be involved in the majority of cases. I believe that plain text will suffice in most cases. That is our clear intention, and that is why we have been more than happy to rewrite this in the way that we have.

The noble Earl, Lord Liverpool, said that he thought that our amendments had not addressed his concerns. The simple answer is that we already believe that the Bill, as drafted, effectively addresses them, but we are more than happy to consider further the point that he has made. After giving it further consideration, we may bring forward an amendment on Report that puts the matter beyond doubt. We are happy to look again at the issue he has raised.

I felt that the argument of the noble Earl, Lord Northesk, was based on pessimism. From what he said, it seemed that the imaginative criminal mind will always be so far ahead of us that it would be self-defeating to attempt the art of enforcement and the recovery of information. I do not believe that he thinks that is the case in his heart of hearts, but that was how it sounded.

28 Jun 2000 : Column 973

7.45 p.m.

 

 

The Earl of Northesk: I actually said the opposite. I said that in pure terms, so far as encrypted data are concerned, the resources available to law enforcement agencies in terms of forensic hacking and so on, are better arms at their disposal than something that is so patently easy for the criminal to get round by being on the face of the statute.

 

Lord Bassam of Brighton: I am prepared to take the argument at face value. I do not believe that the noble Earl has entirely disabused me of his intention. From what he has said, it seems that he believes that we should not be legislating in this area at all and that we should approach the matter from a completely different angle. That is an argument that rests on pessimism.

I said that I would respond in detail because the questions were detailed. I hope that I have answered as much as I can in what has been a useful debate. On that basis, I shall move our amendments. I hope that noble Lords will withdraw their amendments in favour of the government amendments, which try to answer the points raised in the various amendments tabled for this debate.

 

Lord Lucas: Perhaps I may return to a couple of matters. As the noble Lord said, the paragraphs of Clause 46(1) cover the situation whenever the police or the Customs and Excise are on a raid. It is inconceivable that under those circumstances the warrant will not ask for the key. In those circumstances the key will be needed; you will not trust the people concerned to do the decryption for you. Although the Government say that only exceptionally in the current set-up will keys be asked for, I believe that they will be asked for every time there is a raid. There must be tens of thousands of raids a year. Anyone raiding premises for computer equipment will go equipped with a warrant saying, "We want the key". Unless we have clear comfort by way of letter, I believe that we shall have to be firm on this matter on Report.

To throw another stone into the pool of self-incrimination, I keep my passwords in my head; they are not written down anywhere. Presumably, under those circumstances, I could not be asked to reveal them.

 

Lord Cope of Berkeley: I am still slightly uncertain as to exactly who can authorise a key as opposed to plain text. The Minister said that authorisation could be given by the Secretary of State, by a circuit judge, by a magistrate, or by a police superintendent or equivalent person in other areas. I am not sure how the police superintendent comes in at this stage. Reading the Bill--perhaps I read it wrongly--it seems that the warrant from the Secretary of State, the judge or the magistrate giving permission would, in various cases, need to state that a key had to be disclosed or was required so that the police superintendent or equivalent person could put that into the notice. If the warrant did not state that, the police superintendent or

28 Jun 2000 : Column 974

other person would not have the necessary permission. Perhaps I am wrong, but it seems to me that one should say so--although I entirely accept the point made by my noble friend Lord Lucas that, if I am right, warrants habitually will state that. The definition of "special circumstances", or the use of the phrase "special circumstances", will deteriorate over a short period of time until it means practically any circumstances in which a warrant is served.

It is important to understand, if we can, what the line of defence is as between plain text and key. Is it the Secretary of State, judge or magistrate issuing a warrant or the officials of the law enforcement agency, the police superintendent or above, who are giving the additional permission for the key to be obtained?

 

Lord Bassam of Brighton: I believe the comfort the noble Lord is after is in Schedule 1, which follows on from Clause 46(7). That sets out the various levels at paragraph (6). If the noble Lord is not satisfied with the explanation I gave earlier, then I shall be more than happy to come back and provide him with some extra comfort, as we shall through all stages of this legislation. I trust that that answers his point.

 

Lord Cope of Berkeley: The Minister is very kind to look after my comfort. But the specific part about which I am concerned is Schedule 1, paragraph (4). That seems to widen the permission but is so obscurely phrased that it is difficult to be certain exactly what the effect will be in practice, at least as far as I and others with whom I have discussed this matter can see. In my view, it may well need amendment to ensure that the additional permission required to go for the key as opposed to plain text should be given by, at the very least, a magistrate in the course of giving permission for the operation to take place.

I can see that I shall not get much further with this matter this evening. We may have to return to this at a later stage.

Lord Bassam of Brighton: I am happy to consider the point the noble Lord makes, but I say that without commitment.

 

Lord Cope of Berkeley: I am grateful for that.

 

The Earl of Northesk: As the Minister said, we have had a useful debate, even if it turns out to be only a first trot round the course. I would of course like to be able to say that I am entirely satisfied with the outcome. But I hope the Minister will recognise why it is that I and other Members of the Committee persist in having residual concerns on this matter.

I thank the Minister for his assurance that he will write to me on a number of issues. Perhaps I may suggest that it would be helpful if he could copy that correspondence to others who have contributed to the debate.

There is absolutely no doubt that we will return to this issue again. It simply falls to me at this juncture to bang the drum yet again for recommitment. In the meantime, I beg leave to withdraw the amendment.

28 Jun 2000 : Column 975

Amendment, by leave, withdrawn.

 

Lord Bach: I beg to move that the House be now resumed. In moving this Motion, I suggest that the Committee stage begin again not before 8.53 p.m.

Move accordingly, and, on Question, Motion agreed to.

House resumed.

Regulation of Investigatory Powers Bill

8.55 p.m.

 

House again in Committee on Clause 46.

 

The Earl of Northesk moved amendment No. 139B:


    Page 50, line 7, after ("believes") insert ("that the protected information cannot reasonably be obtained by him by means other than the giving of a notice under this section and if that person believes").

The noble Lord said: In moving the amendment, I should also like to speak to Amendment No. 141A.

I confess that some of the steam has been taken out of my concerns as a result of our debate on Amendment No. 139A. Part of my motive was to seek the promotion of plain text ahead of key disclosure. However, a tangential issue remains, concerning the structure of the clause. I cannot help feeling that in the context of

28 Jun 2000 : Column 992

subparagraphs (a), (b) and (c) subparagraph (d) is incongruous. Hence my formulation of including it in the preface to subsection (2). I should be grateful for an explanation from the Minister as to why, in so far as it remains relevant, subsection (2) is structured in the way that it is. I beg to move.

 

Lord Bassam of Brighton: The change in the amendment and the consequential change proposed by Amendment No. 141A are covered by government Amendment No. 141B, which we have already discussed. The amended subsection (d) reads:


    "it is not reasonably practicable for the person with the appropriate permission to obtain possession of the protected information in an intelligible form without the giving of a notice under this section".

I hope that that amendment reassures the noble Lord. It should; that is certainly our intention.

 

Earl of Northesk: I thank the noble Lord the Minister for that reply. He will be aware, from our previous debate, that I still have slight reservations about the phraseology in his amendment No. 139D, but he will write to me on that point in any event.

 

Lord Cope of Berkeley: There are a number of amendments in this group which belong to the Liberal Democrat Party. I do not know whether my noble friend would wish to comment on them before he sits down, or whether anyone else would wish to do so.

 

Lord Lucas: I would certainly wish to comment on them. I was waiting in the hope that someone might magically appear on the Liberal Democrat Benches.

 

Baroness Harris of Richmond: So was I.

 

Lord Lucas: If we wait long enough we may have the presence of the noble Lord, Lord McNally. I should be very interested to hear him, particularly on Amendments Nos. 157 and 158, where we enter the area of the non-disclosure of key signatures. Where one has used, as some programs will use, one's signature to encrypt something, one's signature is liable to be seized. If that is so, I am not clear how, under the Electronic Communications Bill, the authorisations and signatures that one has made using that signature are affected. Their security is no longer perfect and the possibility that they have been forged becomes real. I am concerned about the way in which the two Bills will work together--the ability to seize someone's signature and the uses to which it will now be put under the Electronic Communications Bill. I do not know how that will all hang together.

Amendments Nos. 157 and 158 address the issue in a slightly different way and add another level of protection. As the Bill is drafted, if one has used a password to hide one's signature one may be forced to reveal it. However, I believe that under Amendment No. 157 a person would be spared that requirement. I should not like to miss the noble Lord's comments on those amendments.

28 Jun 2000 : Column 993

9 p.m.

 

 

The Earl of Northesk: I wait to see whether or not the noble Lord, Lord McNally, wants to promote his amendments in this group.

 

Lord McNally: Our amendments were tabled to close a loophole as far as concerns the use of electronic signatures. Because I entered the Chamber half-way through the debate I am not sure what the weakness in our amendments is supposed to be. The intention is to achieve recognition of the electronic signature and protection thereof. I say no more.

 

The Earl of Northesk: The Minister may want to respond to points made by my noble friend Lord Lucas and the noble Lord, Lord McNally, who spoke to the Liberal Democrat amendments.

 

Lord Bassam of Brighton: It is rather difficult to respond to amendments that have not been spoken to. I am content to run through all the amendments in the group, if that is what the Committee desires. Very little reference has been made to the entirety of the grouping. Most of the points made relate to Amendments Nos. 157 and 158. If it assists the Committee, I shall respond only to those amendments which I believe the noble Lord, Lord McNally, and others regard as the most important in the group.

We fully recognise the importance of maintaining the integrity and security of electronic signatures. In that sense we understand why these two amendments have found their way into the group. For the record, I stress the policy position. There is no law enforcement requirement relating to keys that are used solely for the purposes of electronic signature. We believe that there are misplaced worries about signature keys being obtained and then used to impersonate their owners. Clearly, that would not be in the interests of law enforcement, since possibly it would have the wider effect of undermining the validity of such devices and potential prosecutions. The whole point about electronic signatures is to ensure the integrity and authenticity of data.

As I understand it, it is possible for signature keys also to be used for the purposes of confidentiality; in other words, to protect or encrypt the content of data or messages. This is of interest to us. The ability of criminals to encrypt the content of their data is the precise threat that we address in Part III. We believe that where keys have been used for both purposes it is reasonable to have power to require their disclosure. The Committee recognises that in the first limb of Amendment No. 157. The question is whether the second limb--sub-paragraph (b)--and Amendment No. 158 add extra safeguards. Frankly, we do not believe that they do. The protection of electronic signature keys is already there. By virtue of Clause 46(6), if keys have not been used for any other purpose they cannot be required to be disclosed: the Bill prohibits such access. But we believe that if keys have been used for the purposes of confidentiality it is right that they may be required to be disclosed.

28 Jun 2000 : Column 994

In all this it is important to have in mind that we envisage that the times when keys themselves will be required to be disclosed will be limited. The choice of which key to disclose, if there is more than one which can decrypt the relevant information, is very much left to the recipient of the notice.

Amendment No. 158 seeks to address the possibility that keys which may once have been used for the purposes of confidentiality, but have not been so used for some time, may be required to be disclosed because of some recent malicious behaviour by a party who is not the keyholder. We are aware that such a scenario has been painted, but we believe that those fears are overstated. The fact remains that the Bill needs to cover keys which have been used for the purpose of confidentiality and signature. We believe that there are appropriate tests and restrictions that govern access to keys and that Clause 46(6) provides necessary, proper and adequate safeguards for signature keys.

Clearly, confidentiality and integrity are key factors--no pun intended. We understand the spirit in which these amendments and the others in the group are tabled. I trust that, following my comments on Amendments Nos. 157 and 158, the noble Earl will feel able to withdraw his amendment.

Lord McNally: This is a key point. I flipped through some papers that I received from Japan where people have gone to great lengths to guarantee and protect signature keys. They regard that as a key part of public confidence in commerce in this area. I thank the Minister for his reassurances on this matter.

 

The Earl of Northesk: I believe that I am satisfied with the Minister's response to my own amendments. There is slight confusion. As ever, I shall read Hansard further to inform me on the point. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 139C not moved.]

 

Lord Bach moved Amendment No. 139D:


    Page 50, line 10, leave out ("requirement to disclose the key") and insert ("disclosure requirement in respect of the protected information").

     

On Question, amendment agreed to.

[Amendments Nos. 140 to 141A not moved.]

 

Lord Bach moved Amendment No. 141B:


    Page 50, line 17, leave out from ("that") to ("without") in line 18 and insert ("it is not reasonably practicable for the person with the appropriate permission to obtain possession of the protected information in an intelligible form").

     

On Question, amendment agreed to.

[Amendments Nos. 142 to 144 not moved.]

 

Lord Bach moved Amendment No. 144A:


    Page 50, line 21, leave out ("require the disclosure of the key") and insert ("impose a disclosure requirement in respect of the protected information").

     

On Question, amendment agreed to.

28 Jun 2000 : Column 995

[Amendments Nos. 144B and 144C not moved.]

 

Lord Bach moved Amendment No. 144D:


    Page 50, line 22, leave out ("requirement to disclose a key") and insert ("disclosure requirement in respect of any protected information").

     

On Question, amendment agreed to.

[Amendment No. 144E not moved.]

 

Lord Bach moved Amendment No. 144F:


    Page 50, line 27, leave out ("requiring the disclosure of any key") and insert ("imposing a disclosure requirement in respect of any protected information").

     

On Question, amendment agreed to.

[Amendment No. 144G not moved.]

 

Lord McNally moved Amendment No. 145:


    Page 50, line 28, leave out ("not in writing)") and insert ("given by electronic means)").

     

The noble Lord said: The intention is to clean up the form and content of notices. I beg to move.

 

The Earl of Northesk: Amendment No. 151A is grouped with this amendment. I trust that the Committee will think it convenient if I speak to it.

I return to an argument I advanced in debate on the first amendment we considered on the previous Committee day. It is ludicrous that Clause 46 notices,


I believe that that affords carte blanche to the subjective opinion of anyone with the appropriate permission under Schedule 1 to compile their own versions of Clause 46 notices.

My amendment seeks to address the need for objectivity rather than subjectivity. The provision has the potential of imbuing the regime with uncertainty and an unwelcome lack of clarity. I might have preferred the noble Lord, Lord McNally, to have spoken to his Amendment No. 151, which I believe seeks to deal with the problem from a different perspective. None the less, I look forward to the Minister's reply.

 

Lord Bassam of Brighton: I shall deal with the entire grouping, if I may. There are a number of amendments in this group relating to the nature of notices served under Clause 46. Some of the government amendments which we have already discussed have an impact on these amendments. I should like, first, to set out the rationale behind the amendments in this group.

Government Amendment No. 149XA should be welcomed. The amendment is tabled expressly as a result of representations from industry. Many in industry have been concerned that, notwithstanding the constraint on service of notices, some "spoof" notices purporting to be under the Bill could be served on companies and, in this way, security of companies could be compromised. No one wants that. We are anxious to minimise the possibility of any such spoof notices. We believe that the requirement in Amendment No. 149XA--that the office, rank or

28 Jun 2000 : Column 996

position of the person who granted permission for the giving of a notice under Schedule 1 be on the face of the notice--will add extra reassurance to those who received notices that those notices are genuine.

Amendments Nos. 149YA and 150ZA relate to the information that is to be on a notice served under Clause 46. These changes are consequential on the earlier restructuring of the balance between keys and plain text.

Amendments Nos. 150B and 158A are also consequential on the requirement, covered in the new clause tabled by the Government, that notices should be served on directors of companies or equivalent. As such, I hope that these, along with the other government amendments, will be welcomed by the Committee.

There are some outstanding issues from this group which I should address. Amendment No. 145 seeks to clarify that decryption notices can be given only in writing or by electronic means. I can see what the noble Lord is driving at. But I believe that the amendment is unnecessary. Our position on the form of decryption notices is this. They will be in written form. In time, we anticipate that, where necessary and applicable, they should be capable of being served electronically. I think that that is what the noble Lord seeks. But that is already catered for by the words in Clause 46(4)(a),


In another place, we amended Clause 46(4) to put on the face of the Bill further stipulations about the form a decryption notice should take. We have continued that process today. This is in response to industry concerns about the possibility of receiving spoof notices. There is no intention that notices should be given verbally with no written back up. As the Government said in another place, there is clearly a need for consistency regarding notices, for the sake of those authorising and serving notices and for the sake of those receiving them, be it individuals or business.

There should be an agreed format to notices. How that looks in practice is properly to be the subject of consultation with industry, of course, and others. The Government want to get this right in order to achieve clarity and best practice. It will be taken forward in the public consultation on the code of practice for Part III, which will suggest an example of the notice.

Amendment No. 146, tabled by the noble Lord, Lord McNally, seeks to ensure that there should also be a record of the notice having been received. I do not argue with the intent of that amendment. I question whether it is necessary. If notices are not received, then nobody is under any duty to comply with them. If there were to be a prosecution for non-compliance, the prosecution would have to prove that the notice was duly served. Therefore, it is in the interests of law enforcement to be able to show that the notice was indeed received. For these reasons the Government believe that what the Bill currently stipulates is as much as is necessary.

At least part of Amendment No. 146A is dealt with by the new clause tabled earlier by the Government requiring notices to be served on a director or

28 Jun 2000 : Column 997

equivalent within a company. As regards the other part of that amendment, that the notice should specify the person to whom the notice is given, it is believed that that would be good practice in accordance with the code of practice which will be issued for that part of the Bill.

The Government believe that the important requirements are already covered by subsection (4) of the clause as the Government propose it should be amended. It is not believed that the addition suggested in Amendment No. 146A will add to the verification process.

Amendment No. 148 seeks to ensure that the notice specifies which of the purposes listed in Clause 46(3) is applicable. That is certainly how the Government intend notices to be framed. That will be clarified in the code of practice.

It is believed that the intent of Amendment No. 149 is met by government Amendment No. 149XA, and, for that reason, the noble Lord is requested to withdraw Amendment No. 149.

The Government do have some sympathy with the intention behind Amendment No. 151. It is the intention of the Government that notices should be served in line with the guidance in the code of practice. There may, however, be some circumstances in which it is not possible, or not possible to precisely follow what is set out in the code. The Government undertake to consider the matter further to explore whether there is any extra reassurance that can be offered on the face of the Bill.

Amendment No. 155 seeks to ensure that where material is disclosed to an individual who is not the person giving the notice, that person should be in the same category of person as the person giving the notice. It is believed that that will remove a degree of flexibility which will be important.

Take for example the Technical Assistance Centre: where keys are to be demanded, it may be that secure transmission conditions require that the key be disclosed direct to the Technical Assistance Centre rather than the person giving the notice. Staff at the Technical Assistance Centre will be selected for their technical proficiency and their security classification rather than for the rank which they hold in a particular organisation. It is believed that the stricture required by Amendment No. 155 may limit the flexibility required in terms of secure transmission to the TAC, and for that reason it is resisted. It is to be hoped that it can be agreed that the primary objective here in the rare cases where keys are demanded is that there will be transmission. That is the objective.

I have outlined the reasons behind the Government's amendments in this group. I have also outlined why the Government do not feel able to accept the amendments of the noble Lords opposite. In one case, the offer has been made to consider the matter further. In other cases, the intent of the noble Lords' amendments is, I believe, already met by those tabled by the Government.

28 Jun 2000 : Column 998

In the light of those considerations, it is to be hoped that noble Lords will feel able to withdraw their objections. I commend the Government's amendments to the Committee and resist those tabled by Members opposite.

Lord McNally: There were a large number of reassurances in the Minister's reply. As I said, the intention of these amendments was to try to tighten up and clarify these procedures. Some of the amendments have indeed been overtaken by the Government's own amendments.

Regarding the amendments tabled by the noble Earl, Lord Northesk, they look similar and are probably better than ours. I beg to leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 146 to 149 not moved.]

 

Lord Bach moved Amendments Nos. 149XA and 149YA:


    Page 50, line 33, at end insert--

     


("( ) must specify the office, rank or position of the person who for the purposes of Schedule 1 granted permission for the giving of the notice or (if the person giving the notice was entitled to give it without another person's permission) must set out the circumstances in which that entitlement arose;").


On Question, amendments agreed to.

 

Lord Lucas moved Amendment No. 149ZA:


    Page 50, line 36, at end insert--

     


("( ) may contain a requirement as described in section 50(1), and may in exceptional circumstances forbid the taking of action to preserve the confidentiality of other communications;").

The noble Lord said: I shall not press the amendment. If the Minister wants to comment on it, that is up to him. Neither shall I speak to Amendment No. 162A in the group; we have covered that subject. The amendment merely suggests another way in which, in the tiny number of cases in which the key will be demanded, we can obtain high-level authorisation. If it cannot be obtained from a judge, it should come from the interception of the communications commissioner.

I shall speak to Amendment No. 176ZA with Amendment No. 171 because the two go together. If the Minister wants to comment on them now, I shall listen to him with great interest. I beg to move.

 

Lord Cope of Berkeley: My Amendment No. 178 refers to the secrecy of a key once it has been obtained. It is most important that all concerned should be reassured about that. If the Minister can point to a provision in the Bill which places a duty on the authorities concerned to maintain the secrecy, I shall not press my amendment. However, it is important that the provision is written into the Bill somewhere.

 

Lord McNally: Amendment No. 179 is almost identical to Amendment No. 178. I say merely that the

28 Jun 2000 : Column 999

representations I have received indicate a real concern about the security of the key once it enters the government machine, partly because it undermines international confidence. Part of the problem with the Bill relates to differences of perception. The men or women in Whitehall are confident that their remarks and assurances will satisfy any reasonable person who knows how Whitehall or public bodies work, but it is not reassuring to those who are dealing with international companies or trying to maintain business confidence. These are important issues and, like the noble Lord, Lord Cope, I look for guidance and assurance from the Minister.

 

Lord Bassam of Brighton: I shall deal with all the amendments in the group, from Amendment No. 176ZA onwards. That amendment covers ground which we will come to when we discuss the amendments relating to the tipping-off offence. I believe that the concern is that some legitimate action will be caught by the tipping-off offence. When we come to the group of amendments, I shall explain why, for example, revocation of keys--a device for ensuring the confidentiality of systems--does not fall foul of the offence. Similarly, Clause 51 does not prevent or penalise other legitimate action taken to preserve confidentiality.

Amendment No. 149ZA is most perceptive. I believe that the noble Lord is seeking to be helpful with his proposal. We had thought about including such a provision in the Bill, but, in the event, we decided against it. We believe that there would need to be some kind of additional test for forbidding such action, perhaps including "reasonable" and "proportionate", as well as "exceptional". Again, it is a question of the delicate balancing exercise which we hope we have constructed properly.

In some instances we are simultaneously criticised for being too draconian in the Bill and for not giving law enforcement officers sufficient powers. It is difficult to get the balance right. Certainly it is difficult to satisfy both ends of the argument. Therefore, we decided not to proceed with a provision along the lines of that set out in the noble Lord's amendment. However, we hint at it in Clause 50(4)(b) as part of the defence where particular software is designed to disclose the fact that a key has been revealed. However, I am grateful to the noble Lord for having raised that particular point.

From my understanding, Amendment No. 162A tries to add an extra safeguard in cases where keys may be required under a disclosure notice. However, the interception commissioner will not necessarily be the appropriate oversight point for all cases where a key may be demanded. We believe that that nullifies the intended effect of the amendment.

I turn to Amendments Nos. 178 and 179. I appreciate the spirit behind these amendments. In particular, I take the point made by the noble Lord, Lord McNally, about international confidence. He is right. It has much to do with perceptions. Perhaps we have embarked upon this erroneously, but I believe that all Members of the Committee can be helpful in

28 Jun 2000 : Column 1000

trying to add that reassurance to the Bill. That is why I particularly welcome the spirit behind the amendments.

As Members of the Committee will be aware, we resisted a similar amendment in another place. However, as with the other issues connected with Part III, we recognise fully that the question of secure handling of keys is of critical importance. I am happy to set out our position again.

First, it is worth stressing that we understand the need to store securely all sensitive material obtained under the Bill. As regards keys obtained lawfully under Part III, Clause 51 already sets out strong safeguards which govern the retention, copying, destruction and treatment generally of material otherwise obtained under the new powers. I believe that the safeguards are described in very practical terms.

We are not convinced that the addition of the word "safely" is at all necessary. As I said, we set out in practical terms the safeguards provisions which must be in place; for example, with regard to limiting the extent of disclosure. Similar considerations apply to the sensitive material obtained under interception warrants. It is the case now that material obtained lawfully under existing interception powers is held very securely. The reasons for that are plain to see. However, as with the case for Part III, the relevant safeguards provisions which cover interception in Clause 14 of Part I do not contain a specific requirement for material to be held safely. I believe that that point was debated earlier in Committee.

The safeguards arrangements in Clause 51 will be overseen by independent commissioners who will have a statutory responsibility to examine the adequacy and veracity of the arrangements and to report on inadequacies to the Prime Minister directly. However, that said, industry and the public at large will undoubtedly wish to be reassured that, over and above what appears on the face of the Bill, the Government are taking very seriously the issue of protecting keys. As I said, we believe that to be of fundamental importance.

Deploying the highest level of protection for keys and other sensitive information relating to key holders is a specific objective of the technical project to establish the dedicated resource--the Technical Assistance Centre--which we are putting in place to assist law enforcement in relation to encryption.

As Members of the Committee will have seen, the Chancellor of the Exchequer has made available to the Home Office 25 million of modernisation capital to establish that facility. Work is in progress. Security is paramount, including the security of data and keys being transported to the centre, whether physically or electronically. The commissioners will have access to the facility. It is essential to provide reassurance that it is properly executing functions derived from the legislation.

Clause 51 already sets out strong safeguards governing the handling of keys. We take the issue seriously. Questions of technical, physical security are being taken forward by the project to establish the

28 Jun 2000 : Column 1001

TAC. I hope that, with that fairly lengthy explanation, for which I apologise, the noble Lord will feel able to withdraw the amendment.

9.30 p.m.

 

 

Lord Lucas: I am grateful for that explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

 

The Earl of Northesk moved Amendment No. 149A:


    Page 50, line 37, leave out ("the time by") and insert ("a period, not exceeding 40 days, within").

The noble Earl said: With your Lordships' leave, I shall speak also to Amendment No. 150A.

I concede that my choice of 40 days is arbitrary. I am not wedded to it. Indeed, dare I say it, I am more comfortable with the Liberal Democrat amendments.

The fundamental point on Subsection (4)(f) is that the timetable for compliance should be reasonable. At least to that extent, these are probing amendments. I should be grateful to hear the Minister's views on the appropriate timescale. The underlying principle--that a Section 46 notice should have a reasonable timetable for compliance--is a sound one. I beg to move

Lord McNally: The noble Earl, Lord Northesk, has caught the spirit of our amendments. There should be a time limit. Notices should not be left open-ended. We want the provisions to work, but they should not be left hanging over companies or individuals. We want to probe the Minister on that and I shall be interested to hear his response.

 

Lord Bassam of Brighton: I shall deal with the entire group. The amendments all cover the duration of Section 46 notices. Some people are concerned that they will last for ever, which might place unreasonable requirements on bodies, commercial organisations or individuals. I assure noble Lords that notices will not last for an eternity and I welcome this opportunity to explain our thinking behind the current wording.

Amendments Nos. 149A, 150A and 152 would all limit the duration of notices--each in a slightly different way. The noble Earl, Lord Northesk, said that he was not wedded to 40 days. I thought that it was a Biblical reference--40 days and 40 nights--and I am impressed that he used it.

The fears about the duration of notices are misplaced. I shall try to offer some reassurance. It would not be right for a Section 46 notice to last beyond the period for which the seeking of information could be justified as necessary. There are a series of measures in the Bill to achieve that.

Clause 46(2) states that a person may serve a notice only if he believes that its imposition is necessary or likely to be of value and it must be proportionate to what he is trying to achieve. So, clearly, a notice with a long duration would be entirely inappropriate in minor cases.

28 Jun 2000 : Column 1002

Secondly, Clause 46(4)(f), as currently drafted, requires that the notice should specify the time by which the disclosure is to be made. Again, a notice which required disclosures to be made ad infinitum would be hard to justify on any ground, proportionality included.

Thirdly, it is important to remember that the decryption power in Part III of this Bill is merely ancillary to existing powers. Clause 51(2)(a) requires that a key disclosed in pursuance of a notice is only used to access information in relation to which power to give such a notice was exercised, or could have been exercised if the key had not already been disclosed. In other words, the duration of notices will in general be tied explicitly to the duration of the underlying statutory power. So, for example, where an interception warrant is authorised for three months, the ancillary Clause 46 notice will expire shortly after the date when the warrant expires, or be renewed along with it. Search warrants under the Police and Criminal Evidence Act 1984 usually expire after 28 days. Again, a relevant Clause 46 notice would expire shortly afterwards.

Fourthly, the code of practice for Part III will set out in considerable detail appropriate duration periods for different types of notice. As we have said many times, we shall consult on the code, which is of course subject to the affirmative resolution procedure.

To sum up, there are already measures in the Bill to ensure that notices may not last for ever, as some have mistakenly believed.

I turn now to Amendment No. 153. Similar concerns about the duration of notices lie behind this amendment. But what is proposed in this amendment is unnecessary. Clause 46(2) already ensures that notices may be served only where the imposition of a disclosure requirement is necessary and proportionate. Those tests remain in place under the new construction that we are proposing for Clause 46.

Amendment No. 150 suggests that a person served with a notice should be given a reasonable time to comply with it, and that the authorising officer should take account of the technical difficulties of performing the disclosure in setting a requirement by when compliance must take place. We resisted a similar amendment in Committee in another place. I shall reiterate what we said then.

What constitutes a "reasonable" time to comply with a notice will undoubtedly vary from case to case and will depend on a number of factors. The technical capacity or expertise of the body or individual on whom the notice is served is one consideration. But it is not the only one. Whether there are particular time pressures on an investigation is clearly another consideration. Would it be reasonable, for example, to require an urgent response to a notice in genuine life and death circumstances? We might legitimately argue that it would. In other cases, a slower response might suffice. But those are questions for the person authorising the use of the decryption power to properly weigh up in the light of the particular circumstances of the case. We shall cover all those issues in the code of practice.

28 Jun 2000 : Column 1003

As we also pointed out, the Bill as drafted provides a reasonable safeguard against unreasonable demands being made at Clause 49(3)(a) by providing a defence to the offence of failure to comply. We retain that defence in the new construction of the offence in Clause 49.

I hope that that full explanation will enable the noble Earl to withdraw the amendment.

 

The Earl of Northesk: I am grateful to the Minister for his response, which was, indeed, helpful. It may be that we shall return to this matter at a later stage. I remain keen on phraseology along the lines of "reasonable in the circumstances", but I take the Minister's point in relation to the code of practice, which I hope it will be possible for us to see. For the moment at least, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 150 not moved.]

 

Lord Bach moved Amendment No. 150ZA:


    Page 50, line 38, leave out paragraph (g) and insert--

     


("( ) must set out the disclosure that is required by the notice and the form and manner in which it is to be made;").

On Question, amendment agreed to.

[Amendment No. 150A not moved.]

 

Lord Bach moved Amendment No. 150B:


    Page 50, line 40, after ("(a)") insert ("and subsections (4A) and (4B)").

     

On Question, amendment agreed to.

[Amendments Nos. 151 to 152 not moved.]

 

Lord Bach moved Amendment No. 152A:


    Page 50, line 41, at end insert--

     


("(4A) Where it appears to a person with the appropriate permission--
(a) that more than one person is in possession of the key to any protected information,
(b) that any of those persons is in possession of that key in his capacity as the officer or employee of any body corporate, and
(c) another of those persons is the body corporate itself or another officer or employee of the body corporate,
a notice under this section shall not be given, by reference to his possession of the key, to any officer or employee of the body corporate unless he is a senior officer of the body corporate or it appears to the person giving the notice that there is no senior officer of the body corporate and (in the case of an employee) no more senior employee of the body corporate to whom it is reasonably practicable to give the notice.
(4B) Where it appears to a person with the appropriate permission--
(a) that more than one person is in possession of the key to any protected information,
(b) that any of those persons is in possession of that key in his capacity as an employee of a firm, and
(c) another of those persons is the firm itself or a partner of the firm,

28 Jun 2000 : Column 1004


a notice under this section shall not be given, by reference to his possession of the key, to any employee of the firm unless it appears to the person giving the notice that there is neither a partner of the firm nor a more senior employee of the firm to whom it is reasonably practicable to give the notice.
(4C) Subsections (4A) and (4B) shall not apply to the extent that there are special circumstances of the case that mean that the purposes for which the notice is given would be defeated, in whole or in part, if the notice were given to the person to whom it would otherwise be required to be given by those subsections.").

On Question, amendment agreed to.

[Amendments Nos. 153 and 153A not moved.]

 

Lord Bach moved Amendment No. 153B:


    Page 50, line 42, leave out ("disclosure of a key") and insert ("making of any disclosure").

     

On Question, amendment agreed to.

[Amendments Nos. 154 to 158 not moved.]

 

Lord Bach moved Amendment No. 158A:


    Page 51, line 5, at end insert--

     


("( ) In this section "senior officer", in relation to a body corporate, means a director, manager, secretary or other similar officer of the body corporate; and for this purpose "director", in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.").

On Question, amendment agreed to.

Clause 46, as amended, agreed to.

 

Lord Bach moved Amendment No. 158B:


    After Clause 46, insert the following new clause--

EFFECT OF NOTICE IMPOSING DISCLOSURE REQUIREMENT

(".--(1) Subject to the following provisions of this section, the effect of a section 46 notice imposing a disclosure requirement in respect of any protected information on a person who is in possession at a relevant time of both the protected information and a means of obtaining access to the information and of putting it into an intelligible form is that he--
(a) shall be entitled to use any key in his possession to obtain access to the information or to put it into an intelligible form; and
(b) shall be required, in accordance with the notice imposing the requirement, to make a disclosure of the information in an intelligible form.
(2) A person subject to a requirement under subsection (1)(b) to make a disclosure of any information in an intelligible form shall be taken to have complied with that requirement if--
(a) he makes, instead, a disclosure of any key to the protected information that is in his possession; and
(b) that disclosure is made, in accordance with the notice imposing the requirement, to the person to whom, and by the time by which, he was required to provide the information in that form.
(3) Where, in a case in which a disclosure requirement in respect of any protected information is imposed on any person by a section 46 notice--
(a) that person is not in possession of the information,
(b) that person is incapable, without the use of a key that is not in his possession, of obtaining access to the information and of putting it into an intelligible form, or
(c) the notice states, in pursuance of a direction under section 47, that it can be complied with only by the disclosure of a key to the information,

28 Jun 2000 : Column 1005


the effect of imposing that disclosure requirement on that person is that he shall be required, in accordance with the notice imposing the requirement, to make a disclosure of any key to the protected information that is in his possession at a relevant time.
(4) Subsections (5) to (7) apply where a person ("the person given notice")--
(a) is entitled or obliged to disclose a key to protected information for the purpose of complying with any disclosure requirement imposed by a section 46 notice; and
(b) he is in possession of more than one key to that information.
(5) It shall not be necessary, for the purpose of complying with the requirement, for the person given notice to make a disclosure of any keys in addition to those the disclosure of which is, alone, sufficient to enable the person to whom they are disclosed to obtain access to the information and to put it into an intelligible form.
(6) Where--
(a) subsection (5) allows the person given notice to comply with a requirement without disclosing all of the keys in his possession, and
(b) there are different keys, or combinations of keys, in the possession of that person the disclosure of which would, under that subsection, constitute compliance,
the person given notice may select which of the keys, or combination of keys, to disclose for the purpose of complying with that requirement in accordance with that subsection.
(7) Subject to subsections (5) and (6), the person given notice shall not be taken to have complied with the disclosure requirement by the disclosure of a key unless he has disclosed every key to the protected information that is in his possession at a relevant time.
(8) Where, in a case in which a disclosure requirement in respect of any protected information is imposed on any person by a section 46 notice--
(a) that person has been in possession of the key to that information but is no longer in possession of it,
(b) if he had continued to have the key in his possession, he would have been required by virtue of the giving of the notice to disclose it, and
(c) he is in possession, at a relevant time, of information to which subsection (9) applies,
the effect of imposing that disclosure requirement on that person is that he shall be required, in accordance with the notice imposing the requirement, to disclose all such information to which subsection (9) applies as is in his possession and as he may be required, in accordance with that notice, to disclose by the person to whom he would have been required to disclose the key.
(9) This subsection applies to any information that would facilitate the obtaining or discovery of the key or the putting of the protected information into an intelligible form.
(10) In this section "relevant time", in relation to a disclosure requirement imposed by a section 46 notice, means the time of the giving of the notice or any subsequent time before the time by which the requirement falls to be complied with.").

On Question, amendment agreed to.

[Amendment No. 158C not moved.]

28 Jun 2000 : Column 1006

Lord Bach moved Amendment No. 159:


    Before Schedule 1, insert the following new schedule--

     

("SCHEDULE
RELEVANT PUBLIC AUTHORITIES
PART I
RELEVANT AUTHORITIES FOR THE PURPOSES OF SS. 27 AND 28
Police forces etc.

1. Any police force.
2. The National Criminal Intelligence Service.
3. The National Crime Squad.
4. The Serious Fraud Office.
The intelligence services

5. Any of the intelligence services.
The armed forces

6. Any of Her Majesty's forces.
The revenue departments

7. The Commissioners of Customs and Excise.
8. The Commissioners of Inland Revenue.
Government departments

9. The Ministry of Agriculture, Fisheries and Food.
10. The Ministry of Defence.
11. The Department of the Environment, Transport and the Regions.
12. The Department of Health.
13. The Home Office.
14. The Department of Social Security.
15. The Department of Trade and Industry.
The National Assembly for Wales

16. The National Assembly for Wales.
Local authorities

17. Any local authority (within the meaning of section 1 of the Local Government Act 1999).
Other bodies

18. The Environment Agency.
19. The Financial Services Authority.
20. The Food Standards Agency.
21. The Intervention Board for Agricultural Produce.
22. The Personal Investment Authority.
23. The Post Office.
PART II
RELEVANT AUTHORITIES FOR THE PURPOSES ONLY OF S. 27
The Health and Safety Executive

24. The Health and Safety Executive.
NHS bodies in England and Wales

25. A Health Authority established under section 8 of the National Health Service Act 1977.
26. A Special Health Authority established under section 11 of the National Health Service Act 1977.
27. A National Health Service trust established under section 5 of the National Health Service and Community Care Act 1990.
The Royal Pharmaceutical Society of Great Britain

28. The Royal Pharmaceutical Society of Great Britain.").

On Question, amendment agreed to.

28 Jun 2000 : Column 1007

Schedule 1 [Persons having the appropriate permission]:

 

Lord Cope of Berkeley had given notice of his intention to move Amendment No. 159A:


    Page 83, line 1, leave out paragraph 4.

     

The noble Lord said: The issues pertaining to Amendment No. 159A were discussed when dealing with the related amendments grouped with Amendment No. 139A. Therefore, I do not propose to move it.

[Amendment No. 159A not moved.]

[Amendment No. 159B not moved.]

Schedule 1 agreed to.

Clause 47 [Disclosure of information in place of key]:

 

Lord Bach moved Amendment No. 159C:


    Page 51, line 7, leave out from beginning to ("unless") in line 21 and insert--

     


("(1) A section 46 notice imposing a disclosure requirement in respect of any protected information shall not contain a statement for the purposes of section (Effect of notice imposing disclosure requirement)(3)(c)").

On Question, amendment agreed to.

[Amendments Nos. 160 and 161 not moved.]

 

Lord Bach moved Amendment No. 161A:


    Page 51, line 23, leave out ("a section 46") and insert ("the").

     

On Question, amendment agreed to.

[Amendments Nos. 162 to 164A not moved.]

Clause 47, as amended, agreed to.

Clause 48 [Arrangements for payments for key disclosure]:

[Amendment No. 164AA not moved.]

Clause 48 agreed to.

9.45 p.m.

 

Clause 49 [Failure to comply with a notice]:

 

Lord Bassam of Brighton moved Amendment No. 164AB:


    Page 52, line 2, leave out from ("person") to end of line 6 and insert ("to whom a section 46 notice has been given is guilty of an offence if he fails, in accordance with the notice, to make the disclosure required by virtue of the giving of the notice.").

     

The noble Lord said: I am happy to deal with this group of amendments if the Committee so desires. I understand entirely the motives behind the amendments in the group. We have been considering whether or not the offence at Clause 49 can be redrafted so as to retain its effectiveness while removing any potential for harm to justice. It will be noted that we tabled Amendments Nos. 164AB, 167B, 167C and 167D as a result of our deliberations.

These are difficult issues and it is a difficult offence to formulate. It involves many technicalities--the possession of a key--which it will be difficult for the prosecution to prove. However, I shall try to address the amendments as briefly as I can.

Amendments Nos. 164B and 164C seek to introduce the notion of intent into the offence. It is said that it should not be enough for the prosecution simply to

28 Jun 2000 : Column 1008

prove that an individual did not comply with the notice, but also that there should have been some intent on their part. We resisted this in the past and shall continue to do so. A Section 46 notice will impose a legal burden. The offence is clear. It is simply a failure to comply with the notice. There is of course a defence for those who were not able to comply because it was not practical to do so.

I can be more helpful on Amendment No. 164C. This would say that a person is only guilty if he intentionally fails to comply; in other words, a person who fails to comply because he never received the notice or through sheer inadvertence is not guilty. We do not feel the strict liability which the offence imposes is onerous or unjust and do not believe the amendment is necessary. In the light of what I have said, I hope that Members of the Committee will agree that to raise the burden on the prosecution any higher would be unnecessary and would remove the efficacy of the deterrent. I hope noble Lords will consider not moving those amendments.

In Amendment No. 164D the noble Earl, Lord Northesk, seeks to add a stipulation that the offence will only work where someone failed to comply with a valid notice served under Section 46. We agree with the sentiment behind this amendment but believe it to be a clarification too far. There can be no question, under the Bill as currently drafted, that the offence will only work if the Section 46 notice is valid.

Turning to Amendment No. 165, there are difficulties with the notion of proving that a person,


Let me spell out why the Government included this in Clause 49(1)(b). This limb to the offence is included not because we intend that people should be prosecuted where they have had possession of a key but have no longer got it when they are served with a notice; that is not now and never has been our intention. Rather, this part of the offence is there as explicit recognition of the extreme difficulty of prosecuting these offences.

The real issue created by the second limb of the offence is what burden is placed on the defendant where the prosecution has only been able to prove prior possession of the key. We have tabled an amendment making it clear that where the prosecution has been able to prove previous possession, that alone cannot lead to a conviction if the defendant raises some doubt as to whether or not he still has the key. I believe that that will deal with the issue addressed by Amendment No. 165.

Amendment No. 166 tries to add the possibility that the prosecution need only prove possession of a key or that someone was reasonably able to obtain such possession. I believe that that possibility is already provided for in Clause 52(2), to which we have tabled a slight amendment. Amendment No. 166 is therefore unnecessary and I ask the noble Lord not to move it.

Amendments Nos. 167 and 167A come from broadly the same motives. Amendment No. 167A includes the notion of intention, with which I dealt in my comments on Amendments Nos. 164B and 164C.

28 Jun 2000 : Column 1009

The rest of the thrust of Amendments Nos. 167 and 167A deals with the time by which a person may have had possession of a key and the difficulties caused by including in Clause 49(1)(b) the notion that a person may be guilty of an offence where he,


    "has had possession of the key".

Those issues are addressed by government amendments.

We have tabled amendments that make it clear that proof of previous possession can lead to a conviction. However, it will not do so if the defendant raises an issue about whether he still has possession of the key. Once that happens, the burden falls back on the prosecution in the normal way. I believe that that will deal with the issue addressed by Amendments Nos. 167 and 167A. Accordingly, I hope that noble Lords will not press those amendments.

Lawyers refer to this as placing an "evidential" burden on the defendant, as opposed to a "persuasive" or "legal" burden. It means that the defendant simply has to raise some evidence to discharge the burden. That could be done, for example, by the defendant going into the witness box and saying that he has lost his key, or by producing some evidence that his system has crashed.

I believe that I understand the intent behind Amendment No. 168. In providing for a defence to the offence under Clause 49, the noble Lord, Lord Lucas, wishes to ensure that it will be sufficient for an individual to hand over any key that enables possession of the information to be obtained rather than a key that is specifically demanded. As I said earlier, it will not be possible under the Bill for the authorities to identify a specific key that they wish to be handed to them--rather, they must identify the protected information in question. That being the case, any key that unlocks the protected information will work for the purposes of the defence at Clause 49(3)(c). Again, we have tabled amendments to make that clearer.

Amendment No. 168A tabled by the noble Earl, Lord Northesk, is an attempt to make it plain on the face of the Bill that, where a key has been destroyed as part of routine practice designed to protect confidentiality, this should be a defence against any prosecution. Once more, that is already catered for in the Bill as drafted. All the circumstances set out in this amendment would undoubtedly meet the threshold required to be proved by a defence in a case where previous possession has been proved. Indeed, in as far as this amendment only provides for destruction of keys as part of "routine" practice, it may not go as far as the current situation outlined under the clause as drafted. As currently drafted--and even more so if government amendments are accepted--it should be enough just to explain that a key has been destroyed in a particular set of circumstances.

Amendment No. 168B seeks to lower the burden of proof on the defendant in this case to an evidential burden. I am sure that Members of the Committee will have noticed that a similar amendment has been tabled

28 Jun 2000 : Column 1010

under my name. However, there is one significant difference. As drafted, Amendment No. 168B would seek to lower the burden of proof on the defendant in those cases where his defence is that compliance with the requirement was impractical. The Government's intention is only to apply this to the defence of showing lack of possession.

We do not see the need to lower the burden on the defendant as outlined in this amendment. This defence is for someone who, on the face of it, has committed the offence. The notice has been proved to have been served on him; he has been proved to be in possession of the key; he has not complied with the notice; but he is claiming that there are circumstances which made it impractical for him to comply. Necessarily, those circumstances are within his knowledge. Therefore, it must be for him to show them. In the light of this and the changes proposed by the Government, I ask noble Lords not to press the amendment.

The discussion that we are having on Amendments Nos. 168C and 169A was forecast on Second Reading and also in another place. Although I share the concerns expressed to a considerable extent and can see the attractions in moving in the direction proposed, I believe that there are constraints on us in this respect. In the final analysis, I do not believe that we can make such a move.

Amendment No. 168C is a very straightforward proposition--the maximum sentence for failure to comply with a Clause 46 notice should be 10 years, not two. This would be designed specifically to cater for the circumstance in which an individual sought to conceal his activities by not handing over a key in the full knowledge that, were his activities to be revealed, he would be facing a much longer sentence. How will the prosecuting authorities, or the judiciary, ever know the nature of protected information in a case where an individual has not complied with a Section 46 notice?

I share some of the frustrations of those who seek to move these amendments, but we need to focus on the offence in question. The offence is not complying with a notice under Section 46. By any view, a sentence of 10 years for such an offence must be disproportionate.

I turn to Amendment No. 169. I believe that in the fundamental interests of justice we must focus on the offence at Clause 49. That offence is failure to comply with a notice served under Section 46. By definition, if someone fails to comply with a Section 46 notice, the prosecution will not know the nature of the material that has been protected. They may have strong suspicions but they cannot know what the material is.

Even where the nature of other charges against an individual may lead one to have suspicions that the material has been protected, I still believe that the interests of justice dictate that the sentence for this offence must focus solely on what that offence is. I believe that a situation in which a person can be convicted of, say, an offence of unlawful possession on the assumption that unknown material is treated as incriminating risks offending against the presumption of innocence. I appreciate that Amendment No. 169 involves a different way of trying to achieve a similar

28 Jun 2000 : Column 1011

objective to that in Amendments Nos. 168C and 169A. We need to focus on the offence. For that reason we believe that the appropriate sentence for this particular offence should not exceed a two year prison term and/or fine.

I have outlined our views in detail and I have tried to draw attention to the issues which I think are dealt with by the Government amendment in this group. In the light of that I ask noble Lords to withdraw their amendments. I beg to move.

Lord Phillips of Sudbury: I thank the Minister for Amendments Nos. 167B to 167D, which go to the very heart of the unease felt on these Benches--and, indeed, on the Government's own Benches--about the standard of proof which prevailed in this important clause. As the noble Lord, Lord Bassam, pointed out in the course of rejecting one of the amendments in the group, the maximum sentence for breaching this clause is two years' imprisonment and a fine.

I shall speak briefly to Amendments Nos. 164B and 167, which stand in my name and those of my colleagues. We propose to withdraw Amendments Nos. 167A and 168B. However, I hope that I may raise just one point on the question of intent, on mens rea, in relation to offences under Clause 46. Given that it is a serious criminal offence, I am not content merely to have the Minister assert that the Government do not propose in this case to apply the normal test which is basic to our criminal legal system; namely, that there should be no serious criminal offence found without an intent to commit the crime. The Minister might, in responding to this short debate, say something about that.

The second point I wish to raise concerns our Amendment No. 167. In our view, there is virtue--I believe that others share this approach--in requiring any notice to be time limited so that the person or persons to whom it is addressed know where they are in terms of the length of its validity. Our proposed Amendment No. 167 is probing in this regard. Again, I should be glad if the Minister could say whether he sees any problem with that because it seems to us that a time limit is a practical and sensible restriction on the scope of the notices.

Finally, I raise two questions of interpretation on Government Amendments Nos. 167B and 167C. Amendment No. 167B provides that if it is shown that a person was in possession of a key and so on, certain consequences flow. I should like to refer to the key phrase,


Is that, as I hope and assume it is, a test on the balance of probabilities and not therefore a test beyond reasonable doubt? If that is correct--I believe it to be so--we have no trouble with it. If, on the other hand, the person who is at risk under that provision has to show at that stage beyond reasonable doubt, we do not think that the amendment works.

28 Jun 2000 : Column 1012

My second query is in relation to the crucial amendment, Amendment No. 167C. Paragraph (a) states that,


"Sufficient evidence", I assume and hope, in this context means prima facie evidence and does not mean a balance of probabilities. We are content with the arrangements proposed under this amendment to throw the burden of proof beyond reasonable doubt back on to the prosecution but only if the evidence--the sufficient evidence that has to be produced by the accused--is prima facie evidence. Subject to those points, we are content with the amendments tabled by the Government.

10 p.m.

 

 

The Earl of Northesk: Perhaps I may comment very briefly on the amendments standing in my name in the group. I think I am content with the Minister's response to Amendment No. 164D. I shall certainly read the Minister's comments with care. As to Amendment No. 168A, I am less certain. One of the many difficulties I have with the Bill is that, in its strident efforts to be technology neutral, it often conveys the impression that either it is ignorant of the way in which current technology operates, or pretends that there is no technology at all. The issue with which this amendment, Amendment No. 168A, attempts to deal is the particular case in point. I shall certainly read the Minister's comments very carefully indeed, but I suspect that this will be an issue to which I shall have to return at a later stage.

 

Lord Lucas: All that Amendment No. 169 does is to try to draw a line from the current position on the right to silence--that is the right of the court to draw an inference from the silence of a defendant. What we are talking about here is just another instance of silence by a defendant. He has refused to provide a key to enable the court to see what lies behind the files on his computer. I should have thought there should be a similar right for the court to draw conclusions from that as it sees fit.

 

Lord Phillips of Sudbury: I rise to oppose Amendment No. 169. I am more used to being in alliance with the noble Lord, Lord Lucas, on these matters, but it seems to me that this is not a good analogy with the existing inferences that the courts can draw where an accused is silent. This is rather piercing the veil, as one might put it, of past convictions, which is a key foundation of our criminal law. Someone who has been found guilty in the past shall not in the course of a new trial have that past guilt around his or her neck. That would be a backward rather than a forward step, although I understand the point behind the proposal.

 

Lord Cope of Berkeley: I am glad that the Government have moved on the question of burden of proof. It was important that they should do so. I shall not comment any further on the points made by Members of the Committee on that issue.

28 Jun 2000 : Column 1013

Amendments Nos. 164C and 168C stand in my name and are essentially a pair. They seek to draw attention to the dilemma which, along with several other noble Lords, I mentioned at Second Reading. If someone is holding incriminating evidence on his computer, he may refuse to give the key because the incriminating evidence might incur a severe sentence. In those circumstances, if it is thought that someone has done that, that person deserves to receive a sentence longer than two years because he would receive a much longer sentence if he were convicted of an offence of, say, paedophilia as a result of the police gaining access to the computer.

However, this dilemma appears to be one that none of us can solve. I accept the Minister's point that a sentence of 10 years is a high penalty to impose in many of the cases that would be brought in this area. I fear that the dilemma remains and perhaps there is nothing that we can do about it.

 

Baroness Harris of Richmond: At last I feel the urge to join in. I am delighted that my noble friends Lord McNally and Lord Phillips of Sudbury have been leading on this extremely complex Bill. I regret that I have not been able to join in the debates that have been held since Second Reading. That has not been entirely helped by the Government's change of dates for the Committee stage. However, I can assure noble Lords that I have followed the deliberations avidly.

In the debate on Second Reading, I raised concerns about the problems surrounding the penalty for failing to disclose a key. I must say that the view expressed by the police is that they would definitely prefer to see a far more severe sentence. They feel that this offence must be an arrestable offence, along with powers of search as set out in Sections 18 and 32 of the Police and Criminal Evidence Act 1984. As it stands, serious and organised criminals might possibly risk the two-year penalty--the likely tariff would be six to 18 months--if the encrypted material could provide evidence of serious criminality such as drug trafficking or paedophilia. If convicted on that evidence, they would face prison sentences of 10 years to life. On the face of it, the penalty provides little deterrent for major criminals. I am sure that the Minister will recognise the concerns of the police here, although I note that he has given reasons why he does not feel that this can be taken any further.

However, I agree with the Minister that a blanket 10-year sentence will not provide the answer. We need to be far more specific about what such a sentence would mean in practice. It could be a draconian measure. As the Minister said, it could well be disproportionate.

 

Lord Bassam of Brighton: I believe that most of the questions that have been put to me were dealt with in my opening remarks. I do not intend to rehearse all those arguments again. There was perhaps rather too much of it even for my benefit and enjoyment.

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However, I should like to respond to one or two questions put by the noble Lord, Lord Phillips of Sudbury. He raised a question about the way in which a matter would be considered under Amendment No. 167B. The noble Lord said that he would be satisfied if the test was made on the balance of probabilities. So far as concerns the Government, it would not have to extend even as far as that; a weaker version of it would be acceptable. I hope that helps the noble Lord.

The noble Lord also asked the Government to look again at the issue of intent as it is covered in Clause 46. At present we hold the view that Amendment No. 164B is unworkable, but that Amendment No. 164C may be more effective. We should like to give it further detailed consideration. If the noble Lord is content, I shall return to that matter, perhaps on Report.

 

Lord Phillips of Sudbury: I am grateful to the noble Lord for giving way. Is it unfair to ask why he thinks that a normal criminal test of intent is unworkable?

 

Lord Bassam of Brighton: That is not what I am saying. I said that we shall look at the issue in relation to Clause 46. We believe that Amendment No. 164B is not workable, but we believe that the way the proposal is expressed in Amendment No. 164C may well be workable. It is for that reason that I want us to have the time to give it further consideration. I am not querying the issue of intent as an issue in itself and how one expresses and understands it. That is not the point of the observation.

The noble Lord asked about "sufficient evidence". We see "sufficient evidence" as being any evidence that raises an issue. It is, if anything, less than prima facie evidence. I hope that that resolves that issue.

The noble Baroness spoke with considerable wisdom in addressing issues relating to the penalty, as did the noble Lord, Lord Cope. But I do not think that it is an easy matter for us to resolve. Both are right, but it is a matter of getting it right for the nature of the offence. At the end of the day, it comes down to an issue of compliance. That is what we have to satisfy. Those were the main additional points which were perhaps not covered in my earlier comments.

On Question, amendment agreed to.

[Amendments Nos. 164B to 167A not moved.]

Lord Bach moved Amendment No. 167B:


    Page 52, line 7, leave out from ("section,") to end of line 8 and insert ("if it is shown that that person was in possession of a key to any protected information at any time before the time of the giving of the section 46 notice, that person shall be taken for the purposes of those proceedings to have continued to be in possession of that key at all subsequent times, unless it is shown--").

     

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

28 Jun 2000 : Column 1015

 

Lord Bach moved Amendment No. 167C:


    Page 52, line 10, leave out from ("it") to end of line 14 and insert--

     


("( ) For the purposes of this section a person shall be taken to have shown that he was not in possession of a key to protected information at a particular time if--
(a) sufficient evidence of that fact is adduced to raise an issue with respect to it; and
(b) the contrary is not proved beyond a reasonable doubt.").

The noble Lord said: I have spoken to this amendment. I beg to move.

On Question, amendment agreed to.

 

Lord Bach moved Amendment No. 167D:


    Page 52, line 16, leave out from ("defence") to end of line 31 and insert ("for that person to show--

     


(a) that it was not reasonably practicable for him to make the disclosure required by virtue of the giving of the section 46 notice before the time by which he was required, in accordance with that notice, to make it; but
(b) that he did make that disclosure as soon after that time as it was reasonably practicable for him to do so").

The noble Lord said: I beg to move this amendment, which I have already spoken to.

On Question, amendment agreed to.

[Amendments Nos. 168 to 169 not moved.]

Clause 49, as amended, agreed to.

 

Baroness Thornton moved Amendment No. 169A:


    After Clause 49, insert the following new clause--

     

REGISTER OF OFFENDERS

(" .--(1) Where a person is found guilty of an offence under section 49 this fact shall be recorded on a register which the Secretary of State shall establish and maintain in such manner as will afford convenient and rapid access to anyone with a material interest in knowing whether or not a person has been found guilty of an offence under section 49.
(2) Pursuant to subsection (1) the Secretary of State shall lay before Parliament within three months of Royal Assent to this Act his directions as to how the register shall be established and maintained, and the circumstances in which, and by whom, it may be accessed and at what cost.").

The noble Baroness said: This amendment seeks to establish a register of offenders convicted for not handing over their encryption key or clear text. It has the support of all the UK's major children's charities: NCH Action for Children; the NSPCC; Barnardo's; Childline; the Children's Society; the National Children's Bureau; and the National Council for Voluntary Child Care Organisations. That is an indication of the seriousness with which those organisations regard this issue, which was also raised in another place.

The purpose of the amendment is to establish a register of anyone and everyone who is convicted for refusing to hand over their key so that prospective employers, on discovering that a job applicant has such a conviction, can at least ask the person concerned to explain the circumstances which led to the conviction. It does not mean that anyone convicted will necessarily be assumed to be a child pornographer, a paedophile, or anything else for that matter; but an employer would at least be alerted to the fact that the

28 Jun 2000 : Column 1016

person dabbled with or used encryption software and refused to assist the police when asked, even to the point of receiving a conviction for the refusal.

This provision is particularly important for the children's charities (and many educational institutions), which routinely refer to List 99 and the Sex Offenders Register for many categories of jobs that they advertise. The amendment would establish one more register that it would be essential for them to refer to. The extra administrative burden for them would be tiny in comparison with the comfort that they would obtain from having done this check.

If someone was convicted for refusing to hand over the key and escaped going on one of the existing registers, they could then in theory secure a job working with children. Who wants to take the responsibility for the tragic consequences for a child or children if that happened?

Someone who has evidence of serious offences encrypted and installed on their machines would be sorely tempted not to hand over the key and risk conviction for the lesser offence, carrying a maximum sentence of two years. The Guardian and other newspapers have lamented the existence of that obvious escape route, but I see no immediate or clear way around it.

I make no apology for reminding the Committee of the case of Mr. Gary Glitter, who, had he encrypted the images on his PC, would probably never have been arrested in the first place. But if he had been, and had refused to hand over his key, he would never have been convicted of the offence of possessing child pornography and would never have suffered the opprobrium that went with it. He would also have escaped being on the sex offenders' register, and at least in theory, although it might be unlikely in his case, would then have been free to apply for work in a residential children's' home.

There is clearly a real need for the Government to address this issue. I am encouraged by my observation that my noble friend the Minister has heeded the justified concerns of the industry and civil liberties organisations. I hope that he will give similar consideration to the organisations that have expressed their concerns about the matter. I beg to move.

10.15 p.m.

 

 

Lord Phillips of Sudbury: I regret to say that I must oppose the amendment. I appreciate the way in which it was put forward. I understand the reasons for it and have every sympathy with what the noble Baroness, Lady Thornton, said about the children's charities that she mentioned. I suppose that I should declare an interest and say that I act for some of them.

The way in which the amendment is drafted does not confine it to children; it gives anyone with a material interest in knowing previous convictions a right to have access to the register. It blows a hole in the fundamental principle of British justice that convictions are not public knowledge, willy-nilly, and that anybody tried for an offence is not to have, as I put it earlier, a label round their neck saying "Previous

28 Jun 2000 : Column 1017

convictions: 1,2,3,4,5". If the proposal came anywhere near satisfying the basic, traditional protection of people in civil society, it would have to be much more narrowly drafted. Therefore, I must oppose it.

 

Lord Bassam of Brighton: I find myself, not in great difficulty, but in sympathy with the spirit of the amendment of my noble friend Lady Thornton and somewhat perplexed that the noble Lord, Lord Phillips of Sudbury, does not think that its subject matter is an issue in the way in which it has been set out. He probably recognises that there is an issue but does not believe that it should be pressed in this way.

The amendment offers a fairly imaginative way around some of the problems that we have identified in the past. It is welcome that the child-caring charities, those concerned with the issue, have lent a measure of support to my noble friend in bringing the amendment forward. However, I have one or two concerns and questions about it, not least because we have to contemplate the circumstances in which individuals are convicted of offences. At its heart, the amendment suggests that offenders be placed on a register. I have no great difficulty with that principle, but I question the use to which the register might be put. I suppose that it could be asked whether it would be available for those who would employ people who cared for children. If so, there must be a variety of possibilities as to why people might offend under Clause 49. Not all such cases may arise from the possession of paedophile or similar material. That is perhaps one of the deficiencies of the clause as drafted.

There is a possibility that a register brands others who have offended, perhaps through a misplaced notion of civil liberties, by intentionally withholding information when served with a Clause 46 notice. I do not think that the amendment does the job, and it may be a dangerous path to follow. There is some light on the issue. As I understand it, registers are already in existence which provide a measure of comfort. The DfEE runs a register called List 99. I do not fully understand what it means, but that is its title. That register is compiled under the Education Reform Act 1988, Section 218(6) of which gives the Secretary of State power to give a personal direction that an individual be prohibited from employment which also involves access to children.

In relation to this debate, a person need not necessarily have a conviction for a sex offence for the Secretary of State to give such a direction. It may appear to be a draconian power, but I believe that it is equal to the problem. However, sufficient grounds must be provided about the position of the individual so that his name can be added to the register. Of course, that relies on good intelligence about the person's involvement in paedophile behaviour which cannot go before a court. The Department of Health also has a list based on similar principles.

While I fully understand the motives behind the amendment--I appreciate the ingenuity of my noble friend in moving it--in all likelihood the best way forward at this stage is to have continuing dialogue on

28 Jun 2000 : Column 1018

the subject to see whether we can be helpful. The case of Gary Glitter is a lesson to us all. I do not quite see the problem to which my noble friend refers, but perhaps we need to devote further time to it. I give an undertaking to keep the situation under review. It may serve us all if further discussions take place between noble Lords with an interest in this matter and officials who have responsibility for this area of policy. With that, I hope that my noble friend will feel able to withdraw her amendment.

Lord Lucas: It may be of interest to look at some of the circumstances that surround this particular cause. Anyone who finds himself on the register as a result of the amendment must first have had a key required of him. The Minister assures us that that will arise only in exceptional circumstances and on only a very few occasions. Presumably, therefore, the individual will be one against whom there is a good deal of prima facie evidence of involvement in activities which the Government seek to prove against him. In those circumstances, surely it is possible to put such an individual on List 99, if nothing else.

The situation would be improved if the Government changed their opinion on the inclusion of Clauses 16 and 17. In those circumstances, if there is a good deal of prima facie evidence it is more than likely that it will be based on the interception of communications which at present cannot be produced in court. That must be the reason why the Government are so desperate to obtain additional evidence of wrongdoing.

As I understand it, on the sole occasion when a difficulty arose as a result of a paedophile encrypting data on a hard disk there was sufficient evidence in clear to obtain a conviction, so at least that individual ended up on the register. One hopes that in most cases, given the very narrow circumstances in which people end up with a conviction under this part of the Bill, there will be sufficient evidence available either to convict them or at least to put them on List 99. Perhaps in that way the problem will not arise. However, the inability to catch paedophiles because of their use of encryption is to be laid at the door of Clauses 16 and 17 of the Bill, not this part of it.

 

Baroness Thornton: I thank the noble Lord, Lord Lucas, for his support. I know that he and I share an interest in this matter. I also thank my noble friend for his remarks, from which I take some comfort. We are talking about serious crimes about which the children's charities are enormously concerned. As with other serious crimes, new technology is being used. We shall take up the offer to continue the discussions. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 50 [Tipping-off]:

[Amendment No. 169B not moved.]

28 Jun 2000 : Column 1019

 

Lord Phillips of Sudbury moved Amendment No. 170:


    Page 52, leave out lines 42 and 43 and insert--

     


("during the period within which the notice is in effect, to keep secret from any specified person, or class of persons, the giving of the notice, its contents and the things done in pursuance of it, and to inform any other person who is made aware of any of those things of the requirements of the said provision").

The noble Lord said: In moving the amendment, I speak also to Amendments Nos. 172 to 174. These amendments relate to the new offence of tipping-off. It is one of the few phrases in the Bill about which one can feel friendly. It is a new offence. It has no parallel in British law. The amendments are put forward in a probing spirit, in the hope that other Members of the Committee will lend their wisdom to this debate.

There is serious unease about whether the provision will create more problems than it solves. I argue that on the ground of the barbaric complexity of the arrangements governing tipping-off. I believe that it could prove more of a stumbling block and a source of angst to operators in the e-commerce world than any other provision in the Bill. I can imagine the managing director of any one of a thousand companies writing to his or her solicitors asking, "Would you kindly advise us on our risk vis-a-vis Clause 50?" As a practising solicitor, I assure the Committee that he or she would receive a 20 or 30 page letter--solicitors guard their backs carefully these days--raising spectres that the Minister would scarcely contemplate, let alone think were within the ambit of the clause. The provision is extraordinarily wide and loose. Amendment No. 170 seeks to contain the extent and reach of the clause by requiring the notice to specify the person or class of person to whom it relates. I shall be grateful if the Minister will tell me whether the amendment is superfluous. At the end of Clause 50(3) there appear the words,


Should one infer from that subsection that all Clause 46 notices must specify the person or persons in relation to whom the secret must be kept?

The consequences of passing information to others may be extremely difficult to contain and control. Within an organisation many people may have access to keys or protected information. They may be unaware of the consequences of passing on that information to others. It is vital that the knowledge of a Clause 46 notice can be passed from the person upon whom it is served to others within the same organisation.

I move the amendment in the hope that others will contribute to this extremely difficult issue. The Police Act 1964, as amended, provides that,


That extends to tipping-off offences. The case of Regina v. Green and Moore, which was heard in the High Court in October 1981, established that quite specifically. The noble Lord, Lord Thomas of Gresford, was acting for the prosecution in that case when they secured a conviction for tipping-off.

28 Jun 2000 : Column 1020

It may help if I refer to a particular case mentioned in that judgment; the case of Regina v. Westlie, a Canadian case. A plain clothes officer was patrolling the streets of one of the less salubrious parts of Vancouver in order to see whether any of the citizens were begging or committing other offences. Mr Westlie frustrated his efforts by walking alongside him and explaining to all who were interested that he was an "under-cover pig" or an "under-cover fuzz". The police brought a prosecution under an equivalent of the old English provision of obstructing a constable in the course of his duty, and obtained a conviction.

My question is whether we need to go through the agony of this long and tortuous new clause. Why can we not rely on the old obstruction of justice provision, which appears to catch tipping-off cases in any event? I beg to move.

10.30 p.m.

 

 

Viscount Astor: I have to admit that I find Clause 50 rather mystifying. I, of course, am not a lawyer, unlike the noble Lord, Lord Phillips.

An important point was raised in relation to subsection (5)(b), where the idea is given that it might specify a person. Subsection (1)(b) requires,


The subsection seems to be extraordinarily wide in its ambit. Does it, for example, prevent someone who has been given a notice discussing it with his solicitor? I do not know. The noble Lord, Lord Phillips, is a solicitor and he may be able to tell us. Does it mean that anybody who has received a notice cannot write to his MP? From whom must he keep it secret?

 

Lord Phillips of Sudbury: As the noble Viscount asks that question direct, I will answer. There is a provision allowing disclosure to a professional legal adviser, but not to one's bookmaker or barber.

 

Viscount Astor: What about a Member of Parliament? If someone wanted to complain to his MP or, indeed, write to one of your Lordships, that seems to be disbarred by the Bill and I wonder whether the Minister could confirm how that works. It does appear that the clause goes beyond laws that are in existence and which relate to other others. The Minister will have to justify the powers in the Bill for your Lordships to be reassured by Clause 50.

 

Viscount Goschen: I, too, am mystified by the provision. The practicalities of the Bill would seem to be extraordinarily complex and perhaps when a notice is served a copy of Clause 50 could be sent along also and the person told to work out for himself who can or cannot be told. The practicalities are very real.

It would appear that the possibility of committing an offence by mistake would be serious. May one discuss it with one's secretary or one's board colleagues, or, if one is working for a subsidiary of an American company, is one not allowed to tell the

28 Jun 2000 : Column 1021

principal? I imagine there could be a duty upon a director to his board and shareholders that could be contravened by not making any statement. It seems almost inconceivable that this could not be dealt with in a much more straightforward and brief manner. The notice served could specify who could and who could not be told, rather than having to work it out from a very long section of the Bill.

 

Lord Bassam of Brighton: I had hoped to be brief, but perhaps it is worth spending a little time on the amendment. The major issue is that of secrecy and it might help if I explain the purpose of the offence.

The offence is not a new invention. Perhaps Members of the Committee opposite will be more familiar with it than I because it is based on precedents in Section 93D of the Criminal Justice Act 1988 and Section 53 of the Drug Trafficking Act 1994. We believe that the provision is needed to preserve the covert nature of an investigation and to deter deliberate and intentional behaviour designed to frustrate statutory procedures and assist others to evade detection. That is reflected in the construction of the clause.

It is important to remember that the secrecy requirement will not apply in all cases--a fact which must be understood, but has been overlooked by a number of critics. As with other parts of the Bill, some ludicrous scenarios have been painted about the perceived effect of the tipping off offence.

I shall attempt to clarify the issue. Clause 59(3) limits the occasions when such a provision may be imposed. There is simply no need for secrecy in all cases, which the Bill recognises. By definition, it need not apply when a person is asked for the key to his own data. But were another party has access to a relevant key, we believe it reasonable in certain circumstances to require him to keep quiet about being served with a notice in order to prevent a suspect, for example, discovering that he is the subject of an investigation. That is analogous to interception where, under Clause 18, a service provider is required to keep quiet--

Viscount Astor: Perhaps I may ask the Minister a question on that point. Does that mean that it must be kept secret from the person involved in that interception or must it be kept secret from everyone? The Minister was not clear about that.

 

Lord Bassam of Brighton: I believe the answer is that it must be kept secret from everyone.

Some of the concerns about the offence appear to come from business which is concerned, perhaps mistakenly, that the decryption notices would perhaps be served on junior employees in an organisation who would not be permitted, because of a secrecy provision, from telling anyone senior. That was behind some of the recent criticism of the Government in seeking to act as some kind of "shadow director".

28 Jun 2000 : Column 1022

I believe that those concerns should have been allayed by the amendments we proposed to Clause 46 concerning the serving of notices on directors. However, I recognise that there may be some lingering doubts about Clause 50.

The noble Lord, Lord Phillips, asked a fundamental question about this offence. He asked why it was necessary and why we could not rely on the general interfering-with-the-course-of-justice-type provision which has existed in the past. We decided that, on balance, we would be right to have the offence in the Bill, which is why Clause 53 sets down limits as to when a secrecy requirement might be imposed because of its seriousness. We carefully considered whether an offence such as interfering with the course of justice might be more appropriate. It has also been suggested that we could have relied on contempt of court to achieve what we want by way of deterrent. However, we do not believe that that would cover everything, particularly where the Secretary of State authorised interception warrants.

We therefore believe that the provision is essential. It is contained in existing statutes and for those strong reasons it is important that we pursue it. However, I understand the strength of feeling raised by Members of the Committee who have opposed it. However, we have gone through the questions raised by the noble Lord, Lord Phillips, and we do not believe that the offence is defined too broadly. The Bill restricts the situations in which a secrecy provision can be imposed. I believe that there may be difficulties with the approach suggested by the noble Lord, Lord Phillips. Therefore, with those comments and with the undertaking that I have given, I ask Members of the Committee who have moved amendments on this issue to withdraw them.

 

The Earl of Northesk: I gain the impression from what the Minister said that statutory precedents exist for the tipping off offence as drafted on the face of the Bill. Perhaps it would assist the Committee if we were told what those precedents are.

 

Lord Bassam of Brighton: I did quote them and I am happy to quote them again. If the noble Earl wishes me to do so, I shall be happy to send him a copy of the particular clauses to which I have referred.

 

Lord Phillips of Sudbury: Before the Minister sits down, perhaps I may also ask a brief question. In my opening remarks, I asked what was the extent of the provision in Clause 50(3) in so far as it refers to the words,


    "keep secret from a particular person".

     

28 Jun 2000 : Column 1023

 

Perhaps the Minister will write to me to let me know how that requirement works with the remainder of the clause. It may be that our amendment is unnecessary if that is implicit in the requirements of a proper Section 46 notice.

 

Lord Bassam of Brighton: I should be happier to correspond with the noble Lord on that matter, then both he and I shall understand it more clearly.

 

Lord Phillips of Sudbury: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

 

Lord Lucas moved Amendment No. 171:


    Page 52, line 46, leave out paragraphs (a) and (b) and insert ("the consent of an ordinary Surveillance Commissioner has been obtained").

     

The noble Lord said: First, I bring the Committee some good news: we are now half-way through the Marshalled List. I have no intention of calling a Division until about half-past one in the morning, just to make sure that the Chief Whip is doing his job.

Amendment No. 171 is simple. It seems to me that offences in the area of tipping-off cause industry a good deal of concern. I refer in particular to the scenario mentioned earlier of a relatively junior employee--say, the systems manager of the computer department--being the person on whom the notice is served. Particular concern may arise if a notice is served in conjunction with the opening up of keys to continuing data traffic so that the security of a significant firm is breached. I can imagine a situation where that might occur; for example, if we had another BCCI on our hands. It may be clear that the board of directors is corrupt but they may well be employing honest people lower down.

However, it seems to me that, in order to give comfort to industry in general, people must be sure that there are adequate safeguards on the occasions when the tipping-off offence is put into place, otherwise there will be a temptation to put it there in every case. That is simply my suggestion as to what one such safeguard might be. I beg to move.

 

Lord Bassam of Brighton: I understand the noble Lord's concern. However, this matter comes down to a question of practicalities. As the clause is drafted, we do not believe that Amendment No. 171 would add any extra safeguards. For that reason, we shall resist the amendment. I can understand the reasoning behind it and I have a degree of sympathy for it. However, I believe that, if the noble Lord reflects on the way in which we have recast our clauses under Part III, he will appreciate that this amendment is unnecessary and probably would be disproportionate in all the circumstances. For those reasons, I invite him to withdraw his amendment this evening.

 

Lord Lucas: I shall certainly look at the Bill as it appears after Committee stage and I hope that the noble Lord will have convinced me. I beg leave to withdraw the amendment.

28 Jun 2000 : Column 1024

Amendment, by leave, withdrawn.

 

Lord Bach moved Amendment No. 171A:


    Page 53, line 6, leave out ("the key to which it relates is a key to protected information which") and insert ("the protected information to which it relates").

     

On Question, amendment agreed to.

[Amendments Nos. 172 to 174 not moved.]

10.45 p.m.

 

 

Lord Lucas moved Amendment No. 175:


    Page 53, line 26, leave out ("software") and insert ("systems").

     

The noble Lord said: I merely wonder why the word "software" is used when hardware might be involved instead of or as well as software. I beg to move.

 

Lord Bassam of Brighton: I presume that the noble Lord is concerned about futureproofing. We, too, have sought to ensure that the Bill is futureproofed.

Subsection (5) has been included because the industry requested it to ensure that specific software that has been designed to give an automatic warning that a key has been compromised will not fall foul of the tipping-off offence. There are sensible security reasons for that design option.

The subsection provides a statutory defence when disclosure occurs as a result of the action of the software and the person concerned was not reasonably able to stop that from happening after being served with a notice. There is clearly a need for the provision.

We have had no little discussion within the Government about the drafting of the clause. Its present construction reflects counsel's attempt to provide something accurate and workable. Your Lordships will note that the subsection is the same as Clause 13(3) of the draft Electronic Communications Bill, which was published for consultation last summer. We have used the term "software" advisedly. It is our understanding that the defence provided in the subsection is needed to cover a design feature of particular software that triggers the disclosure.

I hope that that gives some contextual background and that the noble Lord will feel able to withdraw his amendment. I appreciate that it was tabled in an attempt to be helpful.

 

Lord Lucas: I entirely understand what the Minister says. However, the pattern is for what is written in software this year to migrate into hardware in a couple of years, so in a couple of years the subsection will not work if the Government leave it as it is. However, if that is how they wish it, I see no reason to argue further. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

 

Lord Lucas moved Amendment No. 176:


    Page 53, line 32, leave out subsection (6).

     

28 Jun 2000 : Column 1025

The noble Lord said: I tabled this amendment because I do not understand how subsection (6) works. It provides a defence that,


If I am served with a notice, presumably I toddle off to the company's legal adviser, who is then free to tell anyone else in the company. That seems to get round the intention of this part of the Bill. I beg to move.

 

Lord Bassam of Brighton: I am sure that the noble Lord does not really want to delete subsection (6) and that this is a probing amendment. That subsection serves a particular purpose. It seems to us right that a person served with a Section 46 notice that contains a secrecy requirement because of particular circumstances should nevertheless be permitted to approach a legal professional for advice about the effect of the notice without being penalised under the tipping-off offence. It would be unfair if they were not able to do that.

I trust that that clarification helps the noble Lord and that he will now feel able to withdraw his amendment

Lord Phillips of Sudbury: I point out to the noble Lord, Lord Lucas that, under subsection (8), the protection given to a legal adviser under subsection (6) does not apply if the legal adviser lets the information out in the course of furthering a criminal purpose. Doing so to enable somebody to escape the net would be a criminal act.

 

Lord Lucas: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

 

Lord Lucas moved Amendment No. 176ZA:


    Page 53, line 46, at end insert--

     


("( ) Nothing in this section shall prevent any person described in subsection (1)(a) or (b) taking such action as may be necessary to preserve the confidentiality of any communication (other than that concerning the protected information described in section 46(1)) unless such action is expressly forbidden in the section 46 notice.").

The noble Lord said: We touched briefly on this issue earlier but I seek further clarification. It seems to me that where confidentiality has been breached, under most circumstances a company should have the right to repair that breach. The Minister said he would touch on that matter again when we discussed tipping-off and I now give him that opportunity. I beg to move.

 

Lord Bassam of Brighton: The noble Lord has caught me out. It will take me some time to find the information that he requires. I shall have to write to the noble Lord. I apologise to the Committee.

 

Lord Lucas: I beg leave to withdraw the amendment.

28 Jun 2000 : Column 1026

Amendment, by leave, withdrawn.

 

Lord Bassam of Brighton moved Amendment No. 176A:


    Page 54, line 19, leave out from first ("the") to ("or") in line 20 and insert ("Intelligence Services Commissioner").

     

The noble Lord said: This is a long group of government amendments, the effect of which abolishes the posts of Intelligence Services Commissioner and Security Service Commissioner and replaces them with a single intelligence services commissioner. These amendments respond to the concern expressed in another place about the number of commissioners.

The post of Security Service Commissioner was introduced in the 1989 Security Service Act. The post of Intelligence Services Commissioner was introduced in the Intelligence Services Act 1994. The Security Service Commissioner has responsibility for the oversight of functions in connection with the Security Service and the Intelligence Services Commissioner carries out similar functions in relation to GCHQ and the Secret Intelligence Service. In practice, both roles have since been held by the same person, as most Members of the Committee will know. These amendments formalise that arrangement by having a single commissioner carrying out both functions, together with the additional functions required of him under the Bill.

The new commissioner will be responsible for reviewing: the Secretary of State's exercise of powers under Sections 5 to 7 of the Intelligence Services Act--warrants for interference with property or wireless telegraphy; the Secretary of State's exercise of powers in relation to the intelligence services and in relation to MoD/Armed Forces other than in Northern Ireland under Parts II and III of the RIP Bill; and the exercise and performance of functions by all three intelligence s ervices and by MoD/Armed Forces, other than in Northern Ireland, under Parts II and III of the Bill.

Government Amendment No. 231 amends the title of the Bill to include the establishment of the new commissioner posts. I am sure that slim-lining the number of commissioners in this way will be welcomed by the Committee. I beg to move.

On Question, amendment agreed to.

 

Lord Bach moved Amendment No. 177:


    Page 54, line 20, at end insert ("or Assistant Surveillance Commissioner").

     

The noble Lord said: In moving this amendment, I shall speak also to the other amendments in the group. We are aware that concern has been raised about the proliferation of different commissioners with oversight of the various intrusive investigative techniques and we have responded by removing from the Bill the covert investigations commissioner and amalgamating that oversight function with that of the chief surveillance commissioner.

However, by doing so we have set the chief surveillance commissioner a wide-ranging and onerous task. He already has responsibility for oversight of all authorisations given under Part III of

28 Jun 2000 : Column 1027

the Police Act 1997. This Bill gives him added responsibility for oversight of authorisations for covert surveillance and the use of covert sources, not only by law enforcement departments but by a large number of government departments, with offices spread across the length and breadth of the country.

In his current responsibilities relating to authorisations for interference with property, he is supported by five surveillance commissioners, who are serving or retired High Court judges. As a measure of the seriousness with which this function is taken, every authorisation given under Part III of the Police Act is scrutinised by a surveillance commissioner and, indeed, the prior approval of a surveillance commissioner is required for certain categories of authorisation. In practice, the Bill will add to these responsibilities the scrutiny and decision whether or not to give prior approval for every authorisation given for intrusive surveillance by the law enforcement agencies. That, together with their current work, will keep them fully employed.

Therefore, we must provide the chief surveillance commissioner with further assistance in order to ensure that he is able effectively to scrutinise other forms of covert surveillance and the use of covert sources by law enforcement and other public authorities. For the police alone, we expect that to involve in excess of 150,000 authorisations each year. He cannot do that alone and we anticipate that he will want to set up some form of inspectorate to assist him.

However, we also believe that it is important that the chief surveillance commissioner should be provided with some judicial support for this function. That could be done by increasing the present numbers of surveillance commissioners but there are simply not enough serving or retired high court judges out there. Instead, therefore, we propose to increase the pool of potential commissioners. These amendments will achieve that by allowing the Prime Minister, after consultation with the chief surveillance commissioner, to appoint serving or former circuit or Crown Court judges to assist in the monitoring process. By that means, we shall ensure independent judicial scrutiny of authorisations by all public authorities. I beg to move.

On Question, amendment agreed to.

Clause 50, as amended, agreed to.

Clause 51 [General duties of specified authorities]:

[Amendments Nos. 178 and 179 not moved.]

Clause 51 agreed to.

 

Lord Lucas moved Amendment No. 179A:


    After Clause 51, insert the following new clause--

     

LIABILITY FOR UNAUTHORISED DISCLOSURE OF KEY

(" . Any person disclosing a key in an unauthorised manner shall be liable for any damage so caused.").

28 Jun 2000 : Column 1028

The noble Lord said: Amendment No. 179A gives me the opportunity to ask the Government who is liable if one of its officers, servants or agents discloses a key and thereby causes substantial damage to a major corporation. I beg to move.

 

Lord Bassam of Brighton: We recognise that this is an issue of fundamental concern to industry. The general welcome for the intentions of the Bill by industry has been qualified by that concern. Some areas of concern remain and they are reflected in the intention of the Government in amendments tabled for today or in amendments that we intend to table on Report. I note that the potential liability incurred through the disclosure of seized keys is one of the points on which industry seeks particular reassurance.

In the light of that we have actively looked into the possibility of including something on the face of the Bill to make it clear where liability lies. However, it should be borne in mind that where keys are demanded, they are most likely to be held by the technical assistance centre. A considerable amount of resource has been devoted to the establishment of that centre and a primary objective of the centre will be to look after keys securely. I am in no doubt that where the centre negligently fails in that regard, and where there is a duty of care, it will be liable for the disclosure of any keys. But I should add that I do not expect the centre to fail in that regard.

I should draw the Committee's attention to Clause 14 of the Bill and the safeguards that are to be applied to intercept material. The safeguards in Clauses 14 and 15 are built, to a large extent, on those that exist in Section 6 of the Interception of Communications Act 1985. Such high standards for protection and destruction of material have existed since then and I do not believe that any of our researches have shown any leakage. I would expect that impressive track record to continue in respect of any keys that are seized.

All that said, we have looked at the possibility of reflecting the secure position of persons acting in obedience to disclosure notices served under the Bill. The industry concern is the potential civil or criminal liability that they will face by making disclosures pursuant to a Section 46 notice. The Government reassurance, for the record, is that we believe a contractual term will be unenforceable if it puts someone in breach of meeting a statutory requirement. We expect the criminal law to be construed similarly.

The London Investment Banking Association helpfully pointed us to the Drug Trafficking Act 1994. Section 52 of that Act is the offence of failure to disclose knowledge or suspicion of money laundering. Section 52(4)states:


Similar wording appears in regulation 16(4) of the Money Laundering Regulations 1993.

28 Jun 2000 : Column 1029

We have looked at those pieces of legislation to see if they provide a precedent. But they do not. The cases are different. The person acting on a subjective suspicion in those two examples is not obeying a statutory requirement which unequivocally applies to his situation, whereas the person obeying a Section 46 notice is indeed obeying a statutory requirement which does unequivocally apply to his situation.

In short, there is no doubt as to the lawfulness of what the person who obeys a notice is doing. But the provisions of the Drug Trafficking Act are needed because that doubt exists. If we were to repeat such a formulation on the face of the Bill, there would be a real danger that the need to spell out the position on liability in this Bill would be inferred to apply across the statute book. Generally, that compliance with a statutory duty to disclose information does not, without express words that might be put into this Bill, provide a defence to criminal and civil liability. That could have serious implications elsewhere. We know of no precedent for such a provision and should not create one.

I appreciate that this is good and bad news. The good news is that we are clear as to the position of people served with disclosure notices. We are also confident that keys which are treated negligently will give rise to liability where a duty of care is found to exist. The bad news is that not only do we not see the need to place this on the face of the Bill, but we also see positive dangers in so doing in so far as it could impact on other parts of the statute book. The good news is the important news here, and I hope that Members of the Committee, and particularly concerned elements of industry outside, will hear what I have said. I trust therefore that the noble Lord will feel able to withdraw his amendment accordingly.

11 p.m.

 

 

Lord Cope of Berkeley: This is an important amendment. Clearly we shall have to study carefully what the Minister said because there were important elements in his response, among them that if the centre did disclose a key, then it would be liable if it disclosed it negligently. That is quite a high test in the courts, a much stronger test than that proposed in Amendment No. 179A.

The Minister also sought to reassure us about contractual liabilities in relation to companies which might find themselves in this position. He may be right--I have no reason to doubt that--in relation to United Kingdom law, but many of the liabilities about which bankers and others are worried arise from the law of other countries. That is where the liabilities will be and, in some cases, they could be extremely large. That is why there is nervousness about this provision. That is why we shall study carefully what the Minister said.

Lord Lucas: As the Minister is doubtless aware, one prominent American but London-based merchant bank has already taken steps to transfer its entire

28 Jun 2000 : Column 1030

central data operation from London to Switzerland. It has put in place steps so that no authorisations or key disclosures can be actioned from any address in the United Kingdom. Therefore no employee served with that sort of notice in the UK can get at any of its keys because they are all in Switzerland and he cannot have them.

Given the quality of the people who have taken this action, I would expect this to be followed fairly quickly by other businesses taking preventive measures. The sort of action that follows from this is that, once you begin to establish your real core, central operations somewhere outside the United Kingdom to avoid this sort of legislation, other parts of your operations will follow. I do not believe that this is a healthy state of affairs for us; indeed, it is something that this Government ought to be taking seriously. They should be taking positive, not just tentative, steps to try to allay the quite reasonable concerns of industry when it comes to this sort of international obligation, as pointed out by my noble friend Lord Berkeley.

I hope that we will hear more from the Government on this area during the Report stage. But, if we do not, I shall certainly wish to return to the matter. However, fornow, I shortly hope to be able to sleep on the Government's reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 52 [Interpretation of Part III]:

 

Lord McNally moved Amendment No. 180:


    Page 55, line 31, at end insert (", and does not affect the intelligibility or accessibility of that communication or data").

     

The noble Lord said: About seven-and-a-half hours ago, the noble Lord, Lord Williams of Elvel, chastised my noble friend Lord Phillips for questioning the wisdom of the Marshalled List. I take courage in both hands now partly because--for reasons I do not quite understand--the noble Lord is no longer in his place. However, I am sure that he will read the Hansard report of these proceedings and "buttonhole" me tomorrow.

However, the latter is the preamble to saying that I should prefer to talk to Amendments Nos. 180, 181, 183 and 186 as a group. They all relate to this definition clause and have the same objective; namely, to try to tighten upthe electronic signature and key definitions to close various loopholes. The present wording brings all sorts of applications of signature-only keys into the ambit of Clause 46 notices, which is contrary to the content of the Bill. The proposed wording would make it abundantly clear exactly when a key is being used for the purposes of signature.

Amendment No. 181 provides the third reason--"the authority"--for using an electronic signature, which is defined under Amendment No. 186. Amendment No. 183 seeks to ensure that the word "key", as applied to encryption, always implies some intent to conceal, which surely is the essence of encryption. I beg to move.

 

Lord Bassam of Brighton: I am happy to consider the re-grouping of these amendments, as proposed by the

28 Jun 2000 : Column 1031

noble Lord. These amendments hark back to concerns which underpinned noble Lords' proposed changes to Clause 46(6) by restricting access to keys that have been used solely for electronic signature purposes.

In simple terms, I suppose that an electronic signature can be described as something associated with an electronic document that is the electronic equivalent of a manual signature. Providing a definition for this in statute is somewhat trickier. I understand what the noble Lord is seeking to achieve by way of these amendments, but webelieve that the definition in Clause 52(1) is clear enough. Perhaps I may just draw the important words to the attention of the Committee. Clause 52(1)(c) states that an electronic signature is anything in electronic form which,


In respect of Amendment No. 180, I believe that I would probably go further and suggest that if signatures are encrypted they will always affect the intelligibility or accessibility of the data in question. Therefore, the effect of the amendment seems questionable--if, indeed, there is an effect. I am not certain that there is.

Amendment No. 181 seems to have an intended effect similar to Amendment No. 185 which we shall discuss later. Both address the question of whether a legal effect is intended. Similar reference to what is included in this Bill was included in the Electronic Communications Act for fear that, without it, some activity might be caught in which there had been no intent to create legal relations. The provisions as drafted here, and in the other Act, are intended to ensure that signatures are a means of creating legal relations only where that is intended and not, perhaps, by chance through the accidental operation of software. Authenticity and integrity are the crux of the matter. Clause 52(1), as drafted, says that. I hope that that deals with the point.

I turn to Amendment No. 183. We have currently cast the definition of "key" for the purposes of this part of the Bill in what we hope are clear and workable terms. A key which may be required to be disclosed is one--this is the crucial point--which allows access to the electronic data in question, or facilitates putting the electronic data into intelligible form.

This is the whole purpose of the Part III power. We believe that the current definition is clear. We are not convinced that the suggested amendment adds anything to it. We have already discussed the issue of electronic signature keys. We do not believe that the inclusion of limb (b) in Amendment No. 183 is appropriate here. It seems to try to include in the definition of a key something that is more appropriate for the definition of a signature. In as far as the only need to mention signatures in this Bill is to exclude them from what can be accessed as keys, it would be distinctly unhelpful specifically to include these signatures in the definition of keys in the first place only to exclude them later.

28 Jun 2000 : Column 1032

We have difficulties with the first limb of the amendment. What is described in the first limb seems to be an encryption key. What is relevant to this legislation is a decryption key. This is a significant difference which I am sure noble Lords will appreciate. I take it that Amendment No. 186 must be consequential to Amendment No. 181 and provides a definition of "authority" as regards an electronic signature. I have already explained why we do not believe that the proposed addition of a reference to "authority" is appropriate. It follows that this proposed definition is unnecessary. While the amendments have sought to be constructive we do not believe that they add anything to the legislation.

 

Lord McNally: I thank the Minister for co-operating in my re-ordering of the Marshalled List. I promise not to tell the noble Lord, Lord Williams of Elvel, that he has done that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 181 not moved.]

 

Lord Lucas moved Amendment No. 182:


    Page 55, line 38, leave out from ("means") to end of line 40 and insert ("anything (including any key, code, password, algorithm or other data) the use of which, with or without any other thing").

The noble Lord said: Amendment No. 182 merely seeks to broaden the definition of "key" and supposes that the "key" is a key as we ordinarily understand that, or at least such a key is part of the "key". We seem to have a definition in the Bill whereby if you have some kind of physical lock on information, as well as a password lock, you are home free. That seems to me unsatisfactory. I beg to move.

 

Lord Bassam of Brighton: I believe that I have already used the word "perceptive" in regard to amendments moved by the noble Lord. This is a perceptive amendment. However, it has the consequence--I do not know whether this is intended--of widening the definition of "key". I should be interested to know whether that is the noble Lord's intention. The query really is whether the definition we have for "key" in Clause 52(1) is future-proof.

As with the rest of the Bill, we have sought to ensure that the definitions included in it are future-proofed as far as possible without making them too loose or unworkable. The definition of "key" here is probably a case in point.

I am attracted to the suggestion of the noble Lord, Lord Lucas. We have given it a good deal of consideration. However, the use of the word "thing" may be casting the definition of a key too widely. I quite like things being called things.

In drawing up these proposals we considered the issue of what might happen in the future in terms of devices used to access data--something like biometrics or electronic fingerprinting are perhaps good examples. Even these devices will ultimately be reduced to data before they can have their intended effect. The Part III power is about being required to

28 Jun 2000 : Column 1033

hand over something--for example, a key or a password--which allows access to particular data or puts it into what we would accept is an intelligible means or form. We have included a reference to data in the definition of key in Clause 52(1). That is as far as we feel we can legitimately go. I appreciate the helpful way in which the noble Lord moved the amendment. However, I hope that with my explanation he will feel able to withdraw it.

Lord Lucas: I should be grateful, not now but in correspondence, if the Minister could point me to a definition of data in the context of legislation which is as wide as he seems to presume it is. Suppose one thinks of a system which is a fingerprint recognition system which does not reduce the "thing" to a digital pattern but which relies on some kind of analogue matching system, so that actually the "thing" is never reduced to data. It merely produces the answer, yes. It is very hard to describe "fingerprint" as "data" if it is never reduced to data. I suppose one might embrace it in the term "information" if one was prepared to use the philosophic version of that. I am not aware that that has been incorporated or understood in legislation. I should like to understand the basis for what the Minister is saying. The noble Lord is quite right. I am seeking to widen this to the point where we do not just think in terms of how it happens to be done at the moment--at the beginnings of cryptography--but use something other than an essentially digital password as protection. I should like the reassurance that the word "data" covers that.

11.15 p.m.

 

 

Lord Bassam of Brighton: I am always happy to correspond, as the noble Lord, Lord Lucas, knows. The fingerprint is an interesting example. When does the fingerprint become data? Does it become data when it is stored? I shall be happy to pursue the point further. No doubt we can pick that up with some of the other issues we shall be putting down on paper.

 

Lord Lucas: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 183 not moved.]

 

Lord Bach moved Amendments Nos. 183A to 183C:


    Page 56, line 12, leave out subsection (2).

     


    Page 56, line 16, leave out ("protected information") and insert ("information (including a key to protected information)").


    Page 56, line 19, after ("concerned;") insert--


("( ) to his having an immediate right of access to it, or an immediate right to have it transmitted or otherwise supplied to him;").

The noble Lord said: These amendments were spoken to with Amendment No. 139A. I beg to move.

On Question, amendments agreed to.

[Amendment No. 184 not moved.]

 

Lord Lucas moved Amendment No. 185:


    Page 56, line 34, leave out sub-paragraph (iii).

     

28 Jun 2000 : Column 1034

The noble Lord said: Amendment No. 185 seeks to leave out sub-paragraph (iii) of Clause 52(5). I cannot see what,


has to do with authenticity. Authenticity is quite well-defined by sub-paragraphs (i) and (ii). If those conditions are satisfied, I am happy that the communication is authentic. Why should legal effect have anything to do with it at all? I beg to move.

 

Lord Bassam of Brighton: I believe that the noble Lord, Lord Lucas, thinks that this is irrelevant to the question of authenticity. The definition contained in Clause 52(5), to which this amendment refers, is exactly the same as that set down in Section 15(2) of the Electronic Communications Act 2000.

I believe that we should engineer as much consistency as possible between these two statutes. I have explained why this definition appears in the Electronic Communications Act. In that legislation we were concerned to ensure that electronic signatures had "legal effect" only where that was intended. Having felt the need to make such a clarification in that Act, we decided that it would be confusing not to replicate it in the legislation before us. I hope that it is clear to the noble Lord that we are seeking consistency here.

 

Lord Lucas: I understand entirely what the Minister has said. I shall have to do a little more homework to check that the two measures are truly consistent. I have happy memories of taking a Bill on construction through this House where, for the sake of consistency, a definition of construction was taken from the Taxes Act. Sometimes these matters can be taken a little too far. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 186 not moved.]

Clause 52, as amended, agreed to.

Clause 53 [Interception of Communications Commissioner]:

 

Lord Lucas moved Amendment No. 187:


    Page 57, line 3, leave out paragraph (a).

The noble Lord said: Matters are now moving a little too quickly for me. I find myself hoisted by my own petard here while I try to catch up with the intention behind this amendment.

The Minister will recall a letter that I received from him, to which I have referred on previous occasions, which examined the extent to which the activities of the Secretary of State were subject to review. It was pointed out that Clauses 12 to 19 were free of such review. We dwelt on that point while moving through our detailed examination of those clauses. The noble Lord said that he would consider again whether in fact that was right; namely, that some of those activities should be free of supervision.

Amendment No. 187 merely provides an opportunity to call attention to that absence. Amendment No. 188, tabled in the name of my noble

28 Jun 2000 : Column 1035

friend, does this rather better and replaces the clauses. Amendment No. 189 is a similar attempt to look at the spread of powers of the commissioner. I beg to move.

 

The Deputy Chairman of Committees (Lord Dean of Harptree): If this amendment is agreed to, I shall not be able to call Amendment No. 188.

 

Lord Cope of Berkeley: Amendment No. 188 tabled in my name seeks to extend the duties of the interception of communications commissioner to cover Clauses 14 and 15 of the Bill as well as those with which he is already charged. The clauses detail the safeguards governing the restrictions on the use of intercepted material. It seemed to me that it would be helpful if the commissioner had an oversight of those matters so as to reassure those who are, as it were, at the receiving end of these provisions.

 

Lord Bach: Amendments Nos. 187, 188 and 189 seek to add to the role of the interception of communications commissioner. During our discussion last week on Clause 15, I undertook to consider the position of the interception of communications commissioner in relation to that clause. We have done that and I can say to the noble Lord, Lord Cope of Berkeley, that Amendment No. 188 is not necessary.

Perhaps I may deal first with Amendment No. 188. Its ambition is simply to add Clauses 14 and 15 to the elements of Part I of the Bill which are to be overseen by the interception of communications commissioner. Noble Lords will see from subsection (2)(d)(i) of Clause 53 on page 57 that the duties of the Secretary of State under Clause 14 already fall to be overseen by the interception of communications commissioner. It is also the case that Clause 15 merely elaborates on the duties that are to be undertaken in order to ensure that the duty under Clause 14 is properly discharged. The effect is that the interception of communications commissioner already has, under the Bill as drafted, a role in the oversight of the very important regime under Clauses 14 and 15 of the Bill. I hope that the noble Lord finds that reassuring.

The ambition of Amendments Nos. 187 and 189 in the name of the noble Lord, Lord Lucas, is rather greater. These amendments seek to ensure that the entirety of Part I of the Bill is reviewed by the commissioner. I have answered the question in relation to Clauses 14 and 15--they are already under his auspices. I now move to those elements of the Bill which are not under the auspices of the commissioner and explain why that is not necessary.

There are not many clauses which are not under the interception of communications commissioner. The clauses in question are Clauses 12, 13, 16, 17, 18 and 19. No one will forget our previous detailed discussions of Clauses 12 and 13. Noble Lords opposite have impressed on us very firmly the need to offer further reassurance as to their operation. As we have indicated, the Government are seriously considering the regime under Clauses 12 and 13 and what extra reassurance can be offered. But we do not believe that there is a proper role for the interception

28 Jun 2000 : Column 1036

commissioner in providing this reassurance. These assurances are about detailed technical issues and the costs involved.

Noble Lords opposite have suggested that a technical advisory board is the appropriate answer, at least in part. We accept that and continue to consider whether this board needs a statutory base. The vital and independent insight that is needed on the operation of Clauses 12 and 13 should come from industry and industry organisations. We do not see that the interception of communications commissioner can fulfil that role. In short, we continue to search for ways of providing reassurance on the operation of Clauses 12 and 13 but we do not think that this is a role for the commissioner.

Turning to Clauses 16 and 17, during our debates last week, the noble and learned Lord, Lord Lloyd, prompted a fascinating discussion of those clauses which addressed important legal points. But the import of the clauses is that they set out rules that are to be followed by the prosecutor in each case, and sometimes by judges. As such, we believe that there is no requirement for further judicial oversight on the operation of those clauses.

That leaves Clauses 18 and 19. Clause 18 carries an offence of tipping off which will only ever be effected through the courts, so there is no need for oversight by the interception of communications commissioner. To put it another way, it makes no sense for offences to be overseen. That is what is required only in respect of functions conferred by the Bill. Clause 19 is merely about the interpretation of Chapter I, which similarly does not require oversight by the commissioner.

I have spelled out why the only elements which fall outside the oversight of the interception of communications commissioner should remain outside. Clauses 14 and 15 actually fall within it. I hope that my remarks are enough to satisfy Members of the Committee and that they will feel able to withdraw their amendments or not move them when they are reached.

Lord Cope of Berkeley: With respect to Amendment No. 188, I fully accept that Clause 14 is covered by the provisions in subsection (2)(d). But the wording is significantly different from that in subsection (2)(a). Subsection (2)(a) refers to a review being of the "exercise and performance" of the various matters, which is also the wording in paragraphs (b) and (c); whereas subsection (2)(d) merely states that the commissioner shall review "the adequacy of the arrangements" by which duties are sought to be discharged. It is a considerably lesser hurdle. As the arrangements we are talking about are the ones for certificated warrants, it is important that they should be properly supervised. Therefore, I hope that the Minister will reflect on his answer on that matter between now and Report.

 

Lord Lucas: I am so pleased by the news that Clause 12 is under active review that I am prepared to withdraw almost anything, and certainly this amendment. I beg leave to withdraw the amendment.

28 Jun 2000 : Column 1037

Amendment, by leave, withdrawn.

[Amendments No. 188 and 189 not moved.]

11.30 p.m.

 

 

Lord Phillips of Sudbury moved amendment No. 189A:


    Page 57, leave out lines 36 and 37 and insert (", provide the Commissioner with such technical and other staff, equipment and other resources as may be requisite to enable him to carry out his functions").

     

The noble Lord said: The amendment is designed to try to ensure that the power and resources of the interception of communications commissioner are sufficient for him or her to do what is, on any reckoning, a massive job. The background is that the Bill represents a complex and vast legal superstructure necessary in order to control a burgeoning new industry, increasing in scale and scope day by day. Therefore, I do not think it is helpful to consider the power and resources of the commissioner against those currently at the behest of the existing interception commissioner.

We on these Benches feel that the duties of the commissioner under the clause are enormous. Basically, apart from the few clauses to which the noble Lord, Lord Bach, referred, he or she is the watchdog of the whole Bill. Unless there are fully adequate resources in all respects--people, machinery, equipment and so on--there is no chance that what we all so devoutly wish for will come about, namely, that the great powers and discretions under the Bill will be matched by commensurate safeguards. The motif of all these debates is concern about civil liberty issues above all others.

The commissioner's duties under subsection (2) go to the whole of the operation of the Bill, except for the few matters mentioned. It will be necessary for the commissioner to have oversight of the 10 categories of authority set out in Clause 6; of the eight categories of authority set out later in the Bill; and of the police forces, not just at chief constable level but at lower levels as will be authorised as the Bill comes into effect, where one is issuing direct surveillance authorisations and covert human intelligence authorisations. There are emergency warrants to consider, intrusive surveillance procedures to oversee. Every discussion on every amendment has pointed to the difficulty and complexity that that will involve.

I suppose that what the amendment is based upon is a doubt that in the event there will be sufficient resources available to the commissioner. Our governance is littered with individuals who have huge jobs to do with inadequate resources. I mentioned earlier the failure to deal at all with insider trading in the City, which is partly a function of lack of sufficient expertise and resources.

I am grateful to the noble Lord, Lord Bassam of Brighton, for responding as he did two days ago to a letter I wrote him on 13 June raising these concerns. He referred to the hope of a unified and investigative secretariat whose resources would be available to the

28 Jun 2000 : Column 1038

interception commissioner. He also referred to the remarks of the noble and learned Lord, Lord Nolan, in the 1997 report of the commissioner. (I am glad to see the noble and learned Lord in his place.) However, those remarks were concerned with the extent to which it was believed that the Secretary of State dealt with warrants properly. This amendment is not concerned with the Secretary of State; it is way downstream of the Minister.

The noble Lord, Lord Bassam of Brighton, also said in his letter that,


I do not believe that that is remotely good enough. The commissioner will require his own bespoke staff and not be reliant upon calling in experts or staff from other agencies who may already be heavily involved in important work.

The Minister also said it was expected that the commissioner would have a staff of four:


I do not believe that they will be remotely adequate to do the job thoroughly in a way that puts the fear of god into those with these great powers that, if they do not exercise them properly and with due diligence, they are likely to be caught out. Unless that happens the people of this country will not be satisfied with the powers provided under the Bill. I am sorry to detain the Committee at this time of night, but I believe that this is a very important point. I beg to move.

 

Lord Nolan: For one of Her Majesty's judges, I have been silent for what must be a record time. I rise to agree with the noble Lord, Lord Phillips of Sudbury. As I am sure the Minister accepts, this is a very important point. During the six years that I held the post of commissioner up until April of this year, year after year I was able to assure the public in my reports not only about the remarkable efficiency of the system but of its integrity. I was able to say, as I firmly believed, that the possibility of the system being abused by government or government agencies was remote, almost inconceivable. That was due to the very high quality of the individuals in the agencies, the government departments concerned--the Home Office, Foreign and Commonwealth Office, the Northern Ireland Office and Scottish Office (now the Scottish Executive--the Secretaries of State of this and the previous administration, who have been most conscientious, and the individual employees of the telephone companies and the GPO. They are very carefully picked and have proved themselves totally trustworthy in operating the system.

The integrity of the system is paramount and, as the noble Lord, Lord Phillips of Sudbury, said, will become of even greater importance under the enormously increased scope of the commissioner's job as provided for under the Bill. The burden on the

28 Jun 2000 : Column 1039

commissioner has already greatly increased under the present system, as is well known to the Home Office and to Ministers.

When I sat as a judge full-time in this House I spent about six weeks a year simply on the work of the commissioner. I did not find it a terrible imposition, but it was a burden on my fellow Law Lords who had to work that much harder. I believe that that point must be addressed in future. In the past 18 months or so the work has taken me, on an annual basis, at least eight weeks. Clearly, given the increased responsibilities the staff available to the commissioner must be substantially increased. I know that a good deal of thought has been given to the matter, and I look forward to hearing in more detail precisely what stage the preparations have reached. Knowing how well the problem is understood, I hope also that the points raised have been anticipated. I shall take a close interest in the matter and will be prepared to raise it in this Chamber should the need arise. The crucial factor is that the public should be able to feel that the commissioner has the knowledge and resources to carry out his functions.

We may be reaching the position where it is beyond the scope of one man or woman even if he or she is a retired judge. It may become necessary to consider, as it has with the chief surveillance commissioner, the appointment of a deputy to work in harness with the interception of communications commissioner. I am prepared to wait with interest to see what is proposed. I trust that it will be--in line with what has already been said to me privately-- adequate for the purpose. I look forward to hearing the Minister.

 

Lord Bach: The noble Lord, Lord Phillips of Sudbury, is very fortunate indeed in the support he has for the principle underlying the amendment. As we have all noted, the noble and learned Lord, Lord Nolan, has sat with incredible patience for hour after hour through the late afternoon, the early evening and into the small watches of the night before speaking. The fact that he has spoken on this issue shows how deeply he feels about it. The Government are very sympathetic, of course.

In responding to an earlier amendment, we indicated that we have great sympathy with the suggestion that there should be a facility in the order made under Clause 12 to require that any capability developed should provide the commissioner with the wherewithal to fulfil his duties in the face of rapid technological development. We shall return to that question on Report.

The noble Lord, Lord Phillips, referred to Clause 53(7). That is a helpful subsection. There is further reassurance in Clause 54(1), which imposes a duty on everyone involved in interception,


That means, for example, that expert technical staff in the agencies would be obliged at the request of the commissioner or his staff to explain how any particular system worked and to show them the information stored on it.

28 Jun 2000 : Column 1040

The practice of successive commissioners--as the Committee knows, the current commissioner is the very distinguished judge Lord Justice Swinton Thomas--has been to make regular visits to the intercepting agencies and to inspect the warrant-issuing units of the four central government departments. Indeed, the noble and learned Lord, Lord Nolan, noted in his report for the year 1995 that he had extended his study so as to include the safeguards operated by the public telecommunications operators.

It has always been government practice (whichever government are in power), as was said by the noble and learned Lord, to provide the commissioner and his staff with the necessary office accommodation and equipment to do their job properly and effectively. I assure the Committee that that practice will continue under the new regime.

I can confirm the contents of the letter that the noble Lord, Lord Phillips of Sudbury, received recently from my noble friend about the kind of thinking at the Home Office on how best to ensure that the interception commissioner has the support and staff necessary to carry out his new functions. The Government are thinking carefully about the best way to pursue that. I do not think that there should be any question about our motives. We agree entirely with both speakers about how important that is. It would be useful if the noble Lord withdrew his amendment today. It is not an issue that is dead

Lord Phillips of Sudbury: I am grateful to the noble Lord. I shall withdraw the amendment. I am grateful for what the noble and learned Lord, Lord Nolan, said.

The Minister referred to Clause 53(7). At present, subsection (7) provides for such resources as the Secretary of State considers necessary, as opposed to the objective test of the amendment--that the commissioner would be provided with such resources as may be requisite. I hope that when the Government return to the issue they will agree with that.

 

Lord Bach: Someone has to make the decision. I should have thought the Secretary of State was as good a person to make that objective decision as anybody. I am not sure there is much difference in the distinction between the subsection referred to and the wording of the amendment.

 

Lord Phillips of Sudbury: I beg to differ and it may be that I shall have a discussion with the noble and learned Lord, Lord Nolan, afterwards and we will come banging on the noble Lord's door. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 53 agreed to.

Clause 54 [Co-operation with and reports by new Commissioner]:

[Amendments Nos. 189B to 189G not moved.]

 

Lord Lucas moved Amendment No. 190.

28 Jun 2000 : Column 1041


    Page 58, line 42, at end insert ("seriously").

The noble Lord said: My interest here is merely to raise the test which the Prime Minister has to set himself in deciding whether to cut parts out of the commissioner's report.

The action will not be subject to any oversight or supervision whatever. In fact no one will know it has happened, except the commissioner who will presumably keep "mum" about it. It is a decision for the Prime Minister to make himself, and I believe it would be helpful in that context if there were some wording to indicate that it is not a test of whether it might cause some slight damage here or there. Either it is phrased in the way I have suggested, that it is serious, or we include a phrase such as "balance" to indicate that taking parts out of the report is only to be embarked upon when the consequences would be notably bad for any of the causes mentioned in that part of the Bill and that it should not be done lightly or at a whim. I am sure it would not be, but I believe that the wording of the Bill should reflect what we hope should happen. I beg to move.

 

Lord Nolan: In my experience there has never been any difference between the commissioner and the Prime Minister, or a previous Prime Minister, as to what should or should not stay in.

The matters which have been omitted are matters which really could not be disclosed without great prejudice to national security or for the other purposes of the Bill. That may not be an answer to the point raised by the noble Lord, Lord Lucas, but, for what it is worth, my experience would not lead me to regard it as essential.

 

Lord Bach: I may be fortunate enough to have an ally in the noble and learned Lord, Lord Nolan, in what I am about to say. Amendment No. 190 proposed by the noble Lord, Lord Lucas, would require that material only be excluded from any annual report where it was seriously prejudicial to national security or one of the other grounds as set out in paragraphs (a) to (d).

The Government believe it is difficult to place a specific meaning on the term "seriously" in that context. For example, if the term means "a lot" or "a great deal" it would mean that information which is damaging to a lesser extent, for example, some lesser prejudice, must be disclosed with no need to show that the public interest requires that such damage be caused. We do not believe that that would lead to a proper balance. It would mean that information damaging, for example, to the prevention or detection of serious crime would have to be published. Finally, we must not forget that the interception commissioner must be consulted on the exclusion of any matter from the annual report as laid before each House of Parliament. I hope that the noble Lord, Lord Lucas, is somewhat reassured by that explanation.

 

Lord Lucas: I am certainly reassured; I would expect nothing to happen other than what the noble and

28 Jun 2000 : Column 1042

learned Lord, Lord Nolan, indicated has happened in the past. The Minister used the word "balance", but, as yet, there is no requirement for balance in this part of the Bill. Perhaps we should examine that issue at Report stage. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 agreed to.

 

Lord Bach moved Amendments Nos. 190A and 190B:


    After Clause 54, insert the following new clause--

THE INTELLIGENCE SERVICES COMMISSIONER

(" .--(1) The Prime Minister shall appoint a Commissioner to be known as the Intelligence Services Commissioner.
(2) Subject to subsection (4), the Intelligence Services Commissioner shall keep under review, so far as they are not required to be kept under review by the Interception of Communications Commissioner--
(a) the exercise by the Secretary of State of his powers under sections 5 to 7 of the Intelligence Services Act 1994 (warrants for interference with wireless telegraphy, entry and interference with property etc.);
(b) the exercise and performance by the Secretary of State, in connection with or in relation to--
(i) the activities of the intelligence services, and
(ii) the activities in places other than Northern Ireland of the officials of the Ministry of Defence and of members of Her Majesty's forces,
of the powers and duties conferred or imposed on him by Parts II and III of this Act;
(c) the exercise and performance by members of the intelligence services of the powers and duties conferred or imposed on them by or under Parts II and III of this Act;
(d) the exercise and performance in places other than Northern Ireland, by officials of the Ministry of Defence and by members of Her Majesty's forces, of the powers and duties conferred or imposed on such officials or members of Her Majesty's forces by or under Parts II and III; and
(e) the adequacy of the arrangements by virtue of which the duty imposed by section 51 is sought to be discharged--
(i) in relation to the members of the intelligence services; and
(ii) in connection with any of their activities in places other than Northern Ireland, in relation to officials of the Ministry of Defence and members of Her Majesty's forces.
(3) The Intelligence Services Commissioner shall give the Tribunal all such assistance (including his opinion as to any issue falling to be determined by the Tribunal) as the Tribunal may require--
(a) in connection with the investigation of any matter by the Tribunal; or
(b) otherwise for the purposes of the Tribunal's consideration or determination of any matter.
(4) It shall not be the function of the Intelligence Services Commissioner to keep under review the exercise of any power of the Secretary of State to make, amend or revoke any subordinate legislation.
(5) A person shall not be appointed under this section as the Intelligence Services Commissioner unless he holds or has held a high judicial office (within the meaning of the Appellate Jurisdiction Act 1876).

28 Jun 2000 : Column 1043


(6) The Intelligence Services Commissioner shall hold office in accordance with the terms of his appointment; and there shall be paid to him out of money provided by Parliament such allowances as the Treasury may determine.
(7) The Secretary of State shall, after consultation with the Intelligence Services Commissioner and subject to the approval of the Treasury as to numbers, provide him with such staff as the Secretary of State considers necessary for the carrying out of the Commissioner's functions.
(8) Section 4 of the Security Service Act 1989 and section 8 of the Intelligence Services Act 1994 (Commissioners for the purposes of those Acts) shall cease to have effect.
(9) On the coming into force of this section the Commissioner holding office as the Commissioner under section 8 of the Intelligence Services Act 1994 shall take and hold office as the Intelligence Services Commissioner as if appointed under this Act--
(a) for the unexpired period of his term of office under that Act; and
(b) otherwise, on the terms of his appointment under that Act.
(10) Subsection (7) of section 39 shall apply for the purposes of this section as it applies for the purposes of that section.").


CO-OPERATION WITH AND REPORTS BY INTELLIGENCE SERVICES COMMISSIONER

(" .--(1) It shall be the duty of--
(a) every member of an intelligence service,
(b) every official of the department of the Secretary of State, and
(c) every member of Her Majesty's forces,
to disclose or provide to the Intelligence Services Commissioner all such documents and information as he may require for the purpose of enabling him to carry out his functions under section (The Intelligence Services Commissioner).
(2) As soon as practicable after the end of each calendar year, the Intelligence Services Commissioner shall make a report to the Prime Minister with respect to the carrying out of that Commissioner's functions.
(3) The Prime Minister shall lay before each House of Parliament a copy of every annual report made by the Intelligence Services Commissioner under subsection (2), together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (4).
(4) If it appears to the Prime Minister, after consultation with the Intelligence Services Commissioner, that the publication of any matter in an annual report would be contrary to the public interest or prejudicial to--
(a) national security,
(b) the prevention or detection of serious crime,
(c) the economic well-being of the United Kingdom, or
(d) the continued discharge of the functions of any public authority whose activities include activities that are subject to review by that Commissioner,
the Prime Minister may exclude that matter from the copy of the report as laid before each House of Parliament.
(5) Subsection (7) of section 39 shall apply for the purposes of this section as it applies for the purposes of that section.").

On Question, amendments agreed to.

28 Jun 2000 : Column 1044

Lord Bassam of Brighton moved Amendment No. 190C:


    After Clause 54, insert the following new clause--

     

INVESTIGATORY POWERS COMMISSIONER FOR NORTHERN IRELAND

(" .--(1) The Prime Minister, after consultation with the First Minister and deputy First Minister in Northern Ireland, shall appoint a Commissioner to be known as the Investigatory Powers Commissioner for Northern Ireland.
(2) The Investigatory Powers Commissioner for Northern Ireland shall keep under review the exercise and performance in Northern Ireland, by the persons on whom they are conferred or imposed, of any powers or duties under Part II which are conferred or imposed by virtue of an order under section 29 made by the First Minister and deputy First Minister in Northern Ireland acting jointly.
(3) The Investigatory Powers Commissioner for Northern Ireland shall give the Tribunal all such assistance (including his opinion as to any issue falling to be determined by the Tribunal) as the Tribunal may require--
(a) in connection with the investigation of any matter by the Tribunal; or
(b) otherwise for the purposes of the Tribunal's consideration or determination of any matter.
(4) It shall be the duty of--
(a) every person by whom, or on whose application, there has been given or granted any authorisation the function of giving or granting which is subject to review by the Investigatory Powers Commissioner for Northern Ireland,
(b) every person who has engaged in conduct with the authority of such an authorisation,
(c) every person who holds or has held any office, rank or position with the same public authority as a person falling within paragraph (a), and
(d) every person who holds or has held any office, rank or position with any public authority for whose benefit (within the meaning of Part II) activities which are or may be subject to any such review have been or may be carried out,
to disclose or provide to that Commissioner all such documents and information as he may require for the purpose of enabling him to carry out his functions.
(5) As soon as practicable after the end of each calendar year, the Investigatory Powers Commissioner for Northern Ireland shall make a report to the First Minister and deputy First Minister in Northern Ireland with respect to the carrying out of that Commissioner's functions.
(6) The First Minister and deputy First Minister Ireland shall lay before the Northern Ireland Assembly a copy of every annual report made by the Investigatory Powers Commissioner for Northern Ireland under subsection (5), together with a statement as to whether any matter has been excluded from that copy in pursuance of subsection (7).
(7) If it appears to the First Minister and deputy First Minister in Northern Ireland, after consultation with the Investigatory Powers Commissioner for Northern Ireland, that the publication of any matter in an annual report would be contrary to the public interest or prejudicial to--
(a) the prevention or detection of serious crime, or
(b) the continued discharge of the functions of any public authority whose activities include activities that are subject to review by that Commissioner,
they may exclude that matter from the copy of the report as laid before the Northern Ireland Assembly.
(8) A person shall not be appointed under this section as the Investigatory Powers Commissioner for Northern Ireland unless he holds or has held office as a county court judge in Northern Ireland.

28 Jun 2000 : Column 1045


(9) The Investigatory Powers Commissioner for Northern Ireland shall hold office in accordance with the terms of his appointment; and there shall be paid to him out of the Consolidated Fund of Northern Ireland such allowances as the Department of Finance and Personnel may determine.
(10) The First Minister and deputy First Minister in Northern Ireland, after consultation with the Investigatory Powers Commissioner for Northern Ireland, provide him with such staff as they consider necessary for the carrying out of his functions.").

The noble Lord said: This group of amendments introduces a new role for an investigatory powers commissioner for Northern Ireland. The new commissioner has a clearly circumscribed role--one which is circumscribed in three ways. First, it is limited to Northern Ireland. Secondly, it is limited to actions under Part II of the Bill; that is, to direct surveillance and covert sources. Thirdly, the role of the commissioner is limited to the actions of public authorities, the responsibility for which is transferred to the First Minister and Deputy First Minister in Northern Ireland and the Northern Ireland Assembly.

When the Bill was introduced in another place, it contained a role of the covert investigations commissioner. The role of that covert investigations commissioner was to oversee the actions of public authorities, other than the police and Customs, and the intelligence agencies under Part II of the Bill. Representations were received to the effect that the role could usefully be bound up within that of the chief surveillance and surveillance commissioners, already established under the Police Act 1997. That change was made by amendment in another place.

It is a simple creation and I hope that I have given adequate information on the purpose and effect of the provision. I beg to move.

On Question, amendment agreed to.

Clause 55 [Additional functions of other Commissioners]:

 

Lord Bach moved Amendments Nos. 190D to 191B:


    Page 59, line 6, leave out subsections (1) and (2).

     


    Page 60, line 2, leave out from first ("the") to end of line 3 and insert ("Intelligence Services Commissioner").


    Page 60, line 3, at end insert ("or the Investigatory Powers Commissioner for Northern Ireland").


    Page 60, line 14, leave out subsection (4).


    Page 60, line 21, leave out ("any") and insert ("the Chief Surveillance").


    Page 60, line 33, leave out subsection (7).

On Question, amendments agreed to.

Clause 55, as amended, agreed to.

 

Lord Bach moved Amendment No. 192:


    After Clause 55, insert the following new clause--

     

ASSISTANT SURVEILLANCE COMMISSIONERS

(".--(1) The Prime Minister may, after consultation with the Chief Surveillance Commissioner as to numbers, appoint as Assistant Surveillance Commissioners such number of persons as the Prime Minister considers necessary (in addition to the ordinary Surveillance Commissioners) for the purpose of providing the Chief Surveillance Commissioner with assistance under this section.

28 Jun 2000 : Column 1046


(2) A person shall not be appointed as an Assistant Surveillance Commissioner unless he holds or has held office as--
(a) a judge of the Crown Court or a Circuit judge;
(b) a sheriff in Scotland; or
(c) a county court judge in Northern Ireland.
(3) The Chief Surveillance Commissioner may require any ordinary Surveillance Commissioner or any Assistant Surveillance Commissioner to provide him with assistance in carrying out his functions under section 55(3).
(4) The assistance that may be provided under this section includes--
(a) the conduct on behalf of the Chief Surveillance Commissioner of the review of any matter; and
(b) the making of a report to the Chief Surveillance Commissioner about the matter reviewed.
(5) Subsections (3) to (8) of section 91 of the Police Act 1997 (Commissioners) apply in relation to a person appointed under this section as they apply in relation to a person appointed under that section.").

On Question, amendment agreed to.

Clause 56 [Delegation of Commissioners' functions]:

 

Lord Bach moved Amendments Nos. 192A to 193:


    Page 60, line 40, leave out from first ("the") to ("or") in line 41 and insert ("Intelligence Services Commissioner").

     


    Page 60, line 41, after first ("Commissioner") insert (", the Investigatory Powers Commissioner for Northern Ireland").


    Page 60, line 41, at end insert ("or Assistant Surveillance Commissioner").

On Question, amendments agreed to.

Clause 56, as amended, agreed to.

 

Lord Cope of Berkeley had given notice of his intention to move Amendment No. 194:


    After Clause 56, insert the following new clause--

     

INVESTIGATORY POWERS COMMISSION

(" .--(1) There shall be an Investigatory Powers Commission consisting of--
(a) the Commissioner under section 8 of the Interception of Communications Act,
(b) the Security Service Act Commissioner,
(c) the Intelligence Services Act Commission,
(d) the Chief Surveillance Commissioner, and
(e) such additional Commissioners as the Secretary of State shall appoint by order.
(2) The Secretary of State shall by order provide for the discharge under the general direction of the Commission of any of the functions of each of the Commissioners.
(3) The Secretary of State shall appoint one of the Commissioners to be chairman of the Commission.
(4) Schedule (Investigatory Powers Commission) shall have effect with respect to the Commission.
(5) No order shall be made under this section unless a draft of it has been laid before Parliament and approved by a resolution of each House.").

The noble Lord said: In view of our previous discussions, I do not wish to pursue this matter. Therefore, I do not propose to move Amendment No. 194.

[Amendment No. 194 not moved.]

Clause 57 [The Tribunal]:

Lord Bach moved Amendments Nos. 194A to 195B:


    Page 61, line 41, leave out paragraph (e).

     

28 Jun 2000 : Column 1047


    Page 62, line 2, leave out (", (e)").


    Page 62, line 25, at end insert ("or under any enactment contained in or made under an Act of the Scottish Parliament which makes provision equivalent to that made by that Part").


    Page 62, line 33, leave out subsection (10).


    Page 62, line 45, leave out from ("making") to end of line 47 and insert ("of any disclosure in an intelligible form (within the meaning of section 52) of protected information by a person who is or has been in possession of the key to that information").

On Question, amendments agreed to.

Clause 57, as amended, agreed to.

[Amendment No. 196 not moved.]

Schedule 2 [The Tribunal]:

 

Lord Bach moved Amendment No. 197:


    Page 85, line 26, at end insert--

     


("(6) If the Scottish Parliament passes a resolution calling for the removal of a member of the Tribunal, it shall be the duty of the Secretary of State to secure that a motion for the presentation of an Address to Her Majesty for the removal of that member, and the resolution of the Scottish Parliament, are considered by each House of Parliament.").

The noble Lord said: In moving Amendment No. 197, I wish to speak also to Amendments Nos. 198 and 200. I referred earlier to the decision of the Scottish Executive and Parliament to use the commissioners established under this Bill for oversight of the authorisations permitted under the Regulation of Investigatory Powers (Scotland) Bill. I applaud their decision to introduce such consistency across the UK. We believe that it is important, notwithstanding the move to devolution, that the use of such powers is used consistently across the Scottish Border as far as possible. After all, our shared objective is compatibility with convention rights.

The Scottish Executive has also elected to use the tribunal established under this Bill to provide the means of redress in instances where individuals may feel that it is owed to them after the use of the powers in this Bill. Again, we applaud that decision. Amendments Nos. 197, 198 and 200, tabled in the Government's name, are consequential on the decision of the Scottish Executive to use the tribunal in that way. The amendments in question grant a direct involvement for the Scottish Parliament or Ministers in key decisions which affect the operation of the tribunal. Those are, first, the removal of a member of the tribunal; secondly, the making of an order setting out the remedies available from the tribunal; and, thirdly, the making of rules for the tribunal.

Those three aspects are important to the operation of the tribunal. The Scottish Ministers and Parliament have a key interest in the operation of the tribunal and the amendments reflect that interest and give them significant impact into key decisions made. I hope that the amendments are welcome to the Committee. I beg to move.

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

28 Jun 2000 : Column 1048

Clause 59 [Exercise of the Tribunal's jurisdiction]:

 

Lord Bach moved Amendment No. 198:


    Page 64, line 47, at end insert--

     


("(12) The Secretary of State shall consult the Scottish Ministers before making any order under subsection (8); and any such order shall be laid before the Scottish Parliament.").

On Question, amendment agreed to.

Clause 59, as amended, agreed to.

Midnight

 

Clause 60 [Tribunal procedure]

 

Lord Bach moved Amendments Nos. 198A to 199:


    Page 66, line 24, leave out from first ("the") to ("or") in line 25 and insert ("Intelligence Services Commissioner").

     


    Page 66, line 25, after first ("Commissioner") insert (", the Investigatory Powers Commissioner for Northern Ireland").


    Page 66, line 25, at end insert ("or Assistant Surveillance Commissioner").

On Question, amendments agreed to.

Clause 60, as amended, agreed to.

Clause 61 [Tribunal rules]:

 

Lord Bach moved Amendment No. 200:


    Page 68, line 43, at end insert--

     


("(12) The Secretary of State shall consult the Scottish Ministers before making any rules under this section; and any rules so made shall be laid before the Scottish Parliament.").

On Question, amendment agreed to.

Clause 61, as amended, agreed to.

Clauses 62 and 63 agreed to.

Clause 64 [Effect of codes of practice]:

 

Lord Cope of Berkeley moved Amendment No. 200ZA:


    Page 70, line 8, leave out subsection (2).

     

The noble Lord said: The Law Society of Scotland drew my attention to this point. The issue is what effect the codes of practice--about which we have heard a good deal and been promised even more--will have if a failure to comply with them will not render a person liable to criminal or civil proceedings. They seem to be rather toothless. I beg to move.

 

Lord Bassam of Brighton: Our purpose is to draw a clear distinction between the duties imposed by the Bill and those imposed by codes of practice. The Bill sets out fundamental legal obligations, such as the safeguards that must be applied to intercepted material, which are set out in Clauses 14 and 15.

Codes of practice, on the other hand, exist primarily to provide guidance. There is an obligation in Clause 64(1) on any person exercising or performing a relevant power or duty to have regard to the provision of every code of practice in force, in so far as they are applicable.

Many other Acts contain an identical provision, such as Section 101(9) of the Police Act 1997. The issue in that case and this is to strike a balance between ensuring that codes are taken seriously and are not toothless and avoiding a person being penalised for

28 Jun 2000 : Column 1049

not following the exact letter of a code for reasons such as an operational emergency that the code's author could not have foreseen. The lack of a liability also means that codes can be drafted in plain English, without the need for more complicated legal jargon which affords lots of opportunities to imagine things that the words were never intended to say.

I am sure that the noble Lord appreciates that codes of practice exist to illuminate and illustrate. No doubt he has been involved on many occasions with legislation providing for codes of practice that could be accused of being toothless, but their purpose is to explain matters and make them clear and to enable courts to interpret.

 

Lord Cope of Berkeley: I am all in favour of plain English and the Minister has said enough to make me want to think about this matter a little further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

 

Lord Bach moved Amendments Nos. 200A to 201B:


    Page 70, line 18, leave out from first ("Act") to ("or") in line 19.

     


    Page 70, line 21, at end insert ("or


(e) any Assistant Surveillance Commissioner carrying out any functions of his under section (Assistant Surveillance Commissioners) of this Act,").



    Page 70, line 28, at end insert ("or the Investigatory Powers Commissioner for Northern Ireland").

On Question, amendments agreed to.

Clause 64, as amended, agreed to.

Clause 65 [Conduct in relation to wireless telegraphy]:

 

Lord Bach moved Amendments Nos. 202 and 203:


    Page 72, line 18, at end insert--

     


("(8A) No regulations shall be made under subsection (4)(g) unless a draft of them has first been laid before Parliament and approved by a resolution of each House.").



("(4) In section 16(2) of that Act (regulations and orders), after "the said powers" there shall be inserted ", other than one containing regulations a draft of which has been approved for the purposes of section 5(8A),".").

On Question, amendments agreed to.

Clause 65, as amended, agreed to.

Clauses 66 and 67 agreed to.

 

Lord Bach moved Amendment No. 203A:


    After Clause 67, insert the following new clause--

SURVEILLANCE ETC OPERATIONS BEGINNING IN SCOTLAND

(" .--(1) Subject to subsection (2) where--
(a) an authorisation under the relevant Scottish legislation has the effect of authorising the carrying out in Scotland of the conduct described in the authorisation,
(b) the conduct so described is or includes conduct to which Part II of this Act applies, and

28 Jun 2000 : Column 1050


(c) circumstances arise by virtue of which some or all of the conduct so described can for the time being be carried out only outwith Scotland,
section 26 of this Act shall have effect for the purpose of making lawful the carrying out outwith Scotland of the conduct so described as if the authorisation, so far as is it relates to conduct to which that Part applies, were an authorisation duly granted under that Part.
(2) Where any such circumstances as are mentioned in paragraph (c) of subsection (1) so arise as to give effect outwith Scotland to any authorisation granted under the relevant Scottish legislation, that authorisation shall not authorise any conduct outwith Scotland at any time after the end of the period of three weeks beginning with the time when the circumstances arose.
(3) Subsection (2) is without prejudice to the operation of subsection (1) in relation to any authorisation on the second or any subsequent occasion on which any such circumstances as are mentioned in subsection (1)(c) arise while the authorisation remains in force.
(4) In this section "the relevant Scottish legislation" means an enactment contained in or made under an Act of the Scottish Parliament which makes provision, corresponding to that made by Part II, for the authorisation of conduct to which that Part applies.").

On Question, amendment agreed to.

Clause 68 agreed to.

Clause 69 [Orders, regulations and rules]:

Lord Bach moved Amendments Nos. 203B to 207:


    Page 75, line 20, leave out from ("instrument") to end of line 22 and insert ("which contains any order made in exercise of a power to which this section applies (other than the power to appoint a day under section 74(2)) but which contains neither").

     


    Page 75, line 24, after ("12(7),") insert (" 21(9),").


    Page 75, line 24, after ("12(7),") insert (" 27(5),").


    Page 75, line 24, after ("12(7),") insert (" 28(5A),").


    Page 75, line 24 after ("12(7),") insert (" 29(4B),").

On Question, amendments agreed to.

 

Lord Cope of Berkeley moved Amendment No. 208:


    Page 75, line 24, after ("12(7),") insert ("24(5)").

     

The noble Lord said: Having been rejected all evening, nevertheless, I am encouraged to try Amendment No. 208. I beg to move.

On Question, amendment agreed to.

 

Lord Bach moved Amendments Nos. 208A to 208C:


    Page 75, line 24, at end insert ("nor").

     


    Page 75, line 25, leave out from ("applies") to end of line 26.


    Page 75, line 28, at end insert--


("( ) A statutory instrument containing any regulations made in exercise of a power to which this section applies shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

On Question, amendments agreed to.

Clause 69, as amended, agreed to.

Clauses 70 and 71 agreed to.

Clause 72 [General interpretation]:

 

Lord Bach moved Amendment No. 209:


    Page 76, line 29, at end insert--

     


(""Assistant Surveillance Commissioner" means any person holding office under section (Assistant Surveillance Commissioners);").

28 Jun 2000 : Column 1051

On Question, amendment agreed to.

 

Lord Lucas moved Amendment No. 210:


    Page 76, leave out lines 33 to 39 and insert ("anything which serves to transmit information").

     

The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 211. I am always slightly disturbed by those rather jumbled and rambling definitions. For example, the definition of "communication" in paragraph (b) refers to "anything comprising speech" and so on and then paragraph (c) states:


    "signals serving ... for the impartation of anything between persons".

If that is not speech, I do not know what it is, so why is "speech" in there if it is already covered in sub-paragraph (c)? I suppose there may be some cases of speeches in this Chamber that do not impart information, but thankfully they are rare and I am not sure that we need worry about them in this Bill.

I have attempted to produce something wider and simpler. When complicated definitions have to be construed in court, the question arises of whether they will start to compare some particular form of communication with the examples in the Bill, decide it does not fit and say that it is not communication, when for the sake of this Bill it ought to be. The same argument applies to the definition of "document", which seems to be quite limited. It includes a number of illustrations which may, in the event, limit the interpretation put on the word. When you look at how it is used in the Bill it ought to be quite broad. I beg to move.

 

Lord Bassam of Brighton: Definitions are always difficult. We have had many arguments about definitions during the course of this Bill. The noble Lord has said that he wants to make the definition wider and, therefore, simpler. I usually believe that when a definition is made wider it becomes more complex. The definition of "communication" is based upon wording taken from Section 4 of the Telecommunications Act 1984. We are trying to achieve consistency across legislation and that is the reasoning behind it.

Communication service providers are familiar with that legislation and we have no wish to confuse the way in which the word "communication" is read in the Bill by introducing a different wording. The courts would be obliged to take account of the different definitions and I believe that that would add to the complexity. In two Acts we would have to read the word differently when we mean the same. I do not believe that making the definition wider makes it simpler; I believe it makes it more complex for the courts.

The definition of "document" is taken from Section 14(1) of the Electronic Communications Act 2000. I am sure that the noble Lord is familiar with that. Again, it is used in this piece of legislation in a way that we believe achieves consistency. We are keen that the two pieces of legislation should be compatible. The word "document" occurs in the Bill only within the

28 Jun 2000 : Column 1052

phrase "document or other information", or variations of that phrase. As a consequence, we believe that the amendment is unnecessary. I trust that the noble Lord will, in the interests of efficiency and consistency, feel able to withdraw his amendment.

 

Lord Lucas: It is wonderful to know that there is some part of this great planet where the definition of "communication" has not changed since 1984. That fact had passed me by. For the sake of consistency and understanding, I at least should read the Act and ensure that I am happy with the dual context. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 211 not moved.]

 

Lord Bach moved Amendments Nos. 211A and 211B:


    Page 77, leave out lines 10 and 11.

     


    Page 77, line 23, leave out ("(subject to section 45(7))").

On Question, amendments agreed to.

[Amendment No. 212 not moved.]

 

Lord Bassam of Brighton moved Amendment No. 212A:


    Page 77, leave out lines 44 and 45.

     

On Question, amendment agreed to.

12.15 a.m.

 

 

Lord Bassam of Brighton moved Amendment No. 213:


    Page 78, line 2, at end insert ("or a member of the Senior Management Structure of Her Majesty's Diplomatic Service").

     

The noble Lord said: I shall speak also to Amendments Nos. 216 and 217. Amendments Nos. 213 and 217 are government amendments and Amendment No. 216, which we intend to resist, stands in the name of the noble Lord, Lord Cope.

Amendments Nos. 213 and 217 between them are necessary to take account of the slightly different terminology used in the Diplomatic Service to describe a person of equivalent seniority to a member of the senior Civil Service. The Foreign Secretary may sign interception warrants, and it is necessary that the Bill treat his officials in the same way as it treats those of any other Secretary of State.

Amendment No. 216 would remove from the Secretary of State the power to amend the definition of "senior official" contained in Clause 72(1). The sole purpose of that power is to cater for the eventuality that a change to the structure or grading of the Civil Service might render the Bill's definition of a "senior official" obsolete--obviously we cannot allow such a thing to happen. Were such a change to be made in a non-statutory way, there would be no means of updating the definition short of primary legislation, which we do not believe would be appropriate.

I should add that this subsection does not permit the definition of a senior official to be devalued, because it obliges the Secretary of State to ensure that his amendment preserves, so far as practicable, the effect

28 Jun 2000 : Column 1053

of the existing definition. Hence it would be incumbent upon him to choose that level or designation which best mirrored the current seniority of members of the senior Civil Service. I beg to move.

 

Viscount Astor: Perhaps I can briefly speak to Amendment No. 216.

The Minister has largely answered the points which were the reason we tabled this amendment. However, it would be interesting to know whether or not the Government have any plans to change the definition. Does it happen regularly within the Civil Service? Has it happened recently? Do they expect any changes to take place? It seemed to us that, while we accept that the provision contains a caveat that the Secretary of State has to keep, so far as practicable, the present definition, it is unlikely that the definitions of senior officials change that often.

 

Lord Bassam of Brighton: I believe I dealt with that point. We do not have any immediate plans to change the entire structure of the Civil Service. We are trying to ensure that we have the balance right for the purposes of this Bill and ensure that it works for different departments in different ways. I cannot usefully add anything more.

On Question, amendment agreed to.

[Amendment No. 214 not moved.]

 

Lord Bassam of Brighton moved Amendment No. 215:


    Page 78, line 47, at end insert--

     


("(4A) For the purposes of this Act detecting crime shall be taken to include--
(a) establishing by whom, for what purpose, by what means and generally in what circumstances any crime was committed; and
(b) the apprehension of the person by whom any crime was committed;
and any reference in this Act to preventing or detecting serious crime shall be construed accordingly, except that, in Chapter I of Part I, it shall not include a reference to gathering evidence for use in any legal proceedings.").

The noble Lord said: Each of the six investigatory powers in this Bill can be used for specific purposes enshrined in the Bill. All include the purpose,


In some cases that is further qualified by the stipulation that the purpose can only be used for serious crime. Precisely what is covered by the term "detection" of crime has never been defined in statute. Operationally, it has generally been taken to mean that powers can be used up to the point of charge. And this interpretation is currently the one adopted, for example, by the surveillance commissioners when giving prior approval to applications for intrusive surveillance made under the Police Act 1997.

However, in the case of Preston in 1994, the House of Lords considered whether there was a prohibition on the use of intercept material in evidence. That was Section 9 of the Interception of Communications Act.

28 Jun 2000 : Column 1054

We had a stimulating debate on those provisions--now included in Clauses 16 and 17 of this Bill--last week. In the case of Preston the Judicial Committee reflected on the fact that interception has never been intended to play a part in the prosecution process. The noble and learned Lord, Lord Mustill, when delivering the leading judgment, rejected the view that the prevention and detection of serious crime went beyond,


    "the forestalling of future crimes and the discovery that crimes had been committed in the past, and by whom and in what manner".

He particularly rejected the view that the detection of crime extended to the,


    "amassing of evidence ... with a view to the prosecution of offenders".

This was not a surprising assessment.

In the case of Morgans on 17th February of this year, the noble and learned Lord, Lord Mackay, summarised the case law. In respect of the Interception of Communications Act, he clearly stated that the effect of Preston was that,


That case provides us with a difficulty in respect of this Bill. A narrow definition of "detection" is satisfactory in the case of interception, though we have tried to ensure even here that the law is as clear as possible. But the same formulation of "prevention and detection" exists in each of the five other powers of the Bill where we most certainly do want the phase to have a wider meaning and to include gathering evidence. Therefore, we believe that we must say what we intend the phrase to mean in each of the places where we use it. That is the purpose of these amendments.

We have deliberated long and hard over this matter. The result of our deliberations are now tabled before the Committee as Amendments Nos. 215, 222A, 224A and 226. Noble Lords will see from Amendment No. 215 that, across the generality of the Bill, we clarify that detection of crime includes,


I believe that this clarification should be welcomed. It means that it is possible to use the powers in Chapter II of Part I and in Parts II and III of the Bill for the purpose spelled out in Amendment No. 215.

I believe that I have dealt with the uncertain areas and the inconsistencies in the expression of "detecting crime" across a number of existing statutes. We have tabled amendments to clarify the meaning in respect of this Bill and related legislation. I beg to move.

On Question, amendment agreed to.

[Amendment No. 216 not moved.]

Lord Bach moved Amendment No. 217:


    Page 79, line 12, leave out ("civil") insert ("home civil service or diplomatic").

     

On Question, amendment agreed to.

[Amendment No. 218 not moved.]

28 Jun 2000 : Column 1055

Clause 72, as amended, agreed to.

Clause 73 agreed to.

Schedule 3 [Consequential amendments]:

 

Lord Bassam of Brighton moved Amendment No. 219:


    Page 87, line 7, leave out ("(within the meaning of the Regulation of Investigatory Powers Act 2000)").

     

The noble Lord said: The effect of this group of amendments would allow government bodies to continue to use their statutory powers to obtain communications data without committing an offence under the Telecommunications Act 1984--something with which, no doubt, all Members of the Committee will be familiar. Amendment No. 220 is the key amendment in the group, while the remaining amendments are consequential. I beg to move.

On Question, amendment agreed to.

 

Lord Bach moved Amendments Nos. 220, 220A, 221 and 222:


    Page 87, line 11, after ("2000;") insert--

     


("( ) in compliance with any requirement imposed (apart from that Act) in consequence of the exercise by any person of any statutory power exercisable by him for the purpose of obtaining any document or other information;").



    Page 87, line 15, leave out ("any Commissioner appointed under that Act of 2000") and insert ("the Interception of Communications Commissioner").


    Page 87, line 16, at end insert--


("(3) In subsection (2) above 'criminal proceedings' and 'statutory power' have the same meanings as in the Regulation of Investigatory Powers Act 2000."").

On Question, amendments agreed to.

 

Lord Cope of Berkeley moved Amendment No. 222ZA:


    Page 87, line 16, at end insert--

     

("The Legal Aid (Scotland) Act 1986 (c. 47)

. At the end of paragraph 1 of Part I of Schedule 2 there shall be inserted--
"in the Regulation of Investigatory Powers Tribunal."").

The noble Lord said: This is a very simple amendment, but one which has some consequences. The Bill provides for a regulation of investigatory powers tribunal. However, the Law Society of Scotland has pointed out to me that the relevant people will not be able to get legal aid as the Bill stands, should they appear before it. The society has suggested that that matter should be considered. I beg to move.

 

Lord Bach: This amendment would provide for legal aid to be available in Scotland to applicants to the tribunal. However, the convention is that this Parliament does not legislate on devolved matters. Legal aid is a devolved matter, and the responsibility

28 Jun 2000 : Column 1056

of the Scottish Executive. As such, it is not possible for the Government to accept the amendment, and I hope that the noble Lord will feel able to withdraw it.

 

Lord Cope of Berkeley: In the light of that response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

 

Lord Bach moved Amendments Nos. 222A and 222B:


    Page 87, line 17, at end insert--

     


(" .--(1) In section 1 of the Security Service Act 1989 (functions of the Security Service), after subsection (4) there shall be inserted--
"(5) Section 72(4A) of the Regulation of Investigatory Powers Act 2000 (meaning of 'prevention' and 'detection'), so far as it relates to serious crime, shall apply for the purposes of this Act as it applies for the purposes of the provisions of that Act not contained in Chapter I of Part I."
(2) In section 2(2)(a) of that Act (duty of Director General to secure that information not disclosed except for authorised purposes), for "preventing or detecting" there shall be substituted "the prevention or detection of".").


The noble Lord said: These amendments have already been spoken to. I beg to move.

On Question, amendments agreed to.

[Amendment No. 223 had been withdrawn from the Marshalled List.]

 

Lord Bach moved Amendment No. 223A:


    Page 87, line 35, leave out paragraph 6.

     

On Question, amendment agreed to.

[Amendment No. 224 had been withdrawn from the Marshalled List.]

 

Lord Bach moved Amendments Nos. 224A to 226:


    Page 87, line 45, at end insert--

     


(". In section 11 of the Intelligence Services Act 1994 (interpretation), after subsection (1) there shall be inserted--
"(1A) Section 72(4A) of the Regulation of Investigatory Powers Act 2000 (meaning of 'prevention' and 'detection'), so far as it relates to serious crime, shall apply for the purposes of this Act as it applies for the purposes of Chapter I of Part I of that Act." ").



    Page 90, line 15, leave out ("requiring a key to protected information)") and insert ("imposing a disclosure requirement in respect of information protected by a key)").


    Page 90, line 33, at end insert--


("(13) In Part VII of that Act, before section 134 there shall be inserted--
"Meaning of 'prevention' and 'detection'.
133A. Section 72(4A) of the Regulation of Investigatory Powers Act 2000 (meaning of 'prevention' and 'detection') shall apply for the purposes of this Act as it applies for the purposes of the provisions of that Act not contained in Chapter I of Part I." ").

The noble Lord said: These amendments have already been spoken to. I beg to move.

28 Jun 2000 : Column 1057

On Question, amendments agreed to.

 

Lord Bassam of Brighton moved Amendment No. 226A:


    Page 90, line 45, at end insert--

     


("The Financial Services and Markets Act 2000 (c. 8)
. In section 394(7) of the Financial Services and Markets Act 2000 (exclusion of material from material of the Authority to which a person must be allowed access), for paragraphs (a) and (b) there shall be substituted--
"(a) is material the disclosure of which for the purposes of or in connection with any legal proceedings is prohibited by section 16 of the Regulation of Investigatory Powers Act 2000; or"").

The noble Lord said: Amendment No. 226A would amend the Financial Services and Markets Act 2000, updating its provisions to ensure that intercept material and related sensitive information is protected from disclosure under the new interception regime. It is a technical amendment and it merely updates the language used in that Act. I beg to move.

 

Lord Lucas: It appears to me that the Financial Services and Markets Act has hardly reached the statute book before we are seeking to amend it. I am sure that if the noble Lord, Lord McIntosh, had intended that the wording should be included in that Act he would have included it while the Bill was progressing through the Chamber under his tutelage. I am surprised that the noble Lord has the temerity to contradict such an experienced parliamentarian.

 

The Earl of Northesk: Following the intervention of my noble friend Lord Lucas, I simply say to the noble Lords, Lord McIntosh and Lord Bach, "Hurrah! No. 1,470." I hope that I have my arithmetic correct.

On Question, amendment agreed to.

 

Lord Bach moved Amendment No. 227:


    Page 90, leave out lines 47 to 50 and insert--

     


("11.--(1) In section 9(2)(d) of the Terrorism Act 2000 (proceedings under the Human Rights Act 1998), for "8" there shall be substituted "7".
(2) In each of paragraphs 6(3) and 7(5) of Schedule 3 to that Act (references to an organisation and representative in paragraphs 5 and 8 of that Schedule), for "paragraphs 5 and 8" there shall be substituted "paragraph 5".").

On Question, amendment agreed to.

Schedule 3, as amended, agreed to.

Schedule 4 [Repeals]:

 

Lord Bassam of Brighton moved Amendment No. 228:


    Page 91, line 35, column 3, leave out ("11(2)") and insert ("11(3)").

The noble Lord said: In moving Amendment No. 228, I shall speak also to Amendment No. 229. I have a long and complicated speech. I am sure that the Committee will wish to hear the whole of my lengthy explanation. Amendment No. 228 corrects an oversight in paragraph 1 of Schedule 3 and amends Section 58(1) of the Post Office Act 1953--I remember

28 Jun 2000 : Column 1058

it well!--taking account of the amendment previously made to that subsection by Section 11(2) of the Interception of Communications Act 1985. We therefore do not wish to repeal Section 11(2).

Amendment No. 229 would repeal paragraph 8 to Schedule 3 to the Terrorism Act, currently before Parliament as a Bill. This repeal is consequential to Amendment No. 69, which the Government moved during the first sitting of this Committee. I beg to move.

On Question, amendment agreed to.

12.30 a.m.

 

 

Lord Bach moved Amendments Nos. 228A to 229:


    Page 91, column 3, leave out line 37 and insert--
("Sections 4 and 5.")



    Page 92, line 45, at end insert--


    ("2000 c. 00. The Terrorism Act 2000. In Schedule 3, paragraph 8.")

     

The noble Lord said: These amendments have already been spoken to. I beg to move.

On Question, amendments agreed to.

Schedule 4, as amended, agreed to.

Clause 74 [Short title, commencement and extent]:

 

Lord Bach moved Amendment No. 230:


    Page 80, line 1, leave out subsections (3) to (5).

On Question, amendment agreed to.

Clause 74, as amended, agreed to.

In the Title:

 

Lord Bach moved Amendment No. 231:


    Line 6, leave out ("the establishment of a tribunal with") and insert ("Commissioners and a tribunal with functions and").

On Question, amendment agreed to.

Title, as amended, agreed to.

House resumed: Bill reported with amendments.

 

Lord Carter: My Lords, in moving that the House do now adjourn, perhaps I may say that I hope that the Terrorism Bill becomes an Act and receives Royal Assent.

Moved accordingly, and, on Question, Motion agreed to.