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FT: Legal Opinions "floating around" ?

Simon and Richard,

The Financial Times reports Charles Clarke as saying that there are a "large
number of legal opinions floating around" (below).

I haven't heard of any (with reference to Part.III) except for the
FIPR/JUSTICE Opinions of Oct 99 updated for March 2000.

1) Please could you enumerate the opinions Mr.Clarke was referring to.

2) Was he referring to opinions produced internally by Government lawyers,
or have you commissioned independent advice?

3) Did the team that produced the "Encryption and Law Enforcement" report
take legal advice before recommending reversing the onus of proof in May 99
(see http://www.fipr.org/rip/burdenproof.html)?

4) When did the Government first seek external independent legal advice on
Part.III (either of draft E-Comms Bill or RIP)?

5) Will you publish advice you have received?

Please would you consider this as a formal request for information under the
Code of Practice on Open Government.

Caspar Bowden                Tel: +44(0)171 354 2333
Director, Foundation for Information Policy Research
RIP Information Centre at:    www.fipr.org/rip#media

-----Original Message-----
From: Caspar Bowden [mailto:cb@fipr.org]
Sent: 24 March 2000 12:34
To: FIPR News Archive (E-mail)
Subject: FT 24/3/2000: "Legal fears over e-mail tapping"

Legal fears over e-mail tapping
By Jean Eaglesham, Legal Correspondent - 23 Mar 2000 22:21GMT

Government changes to a new law allowing officials to bug and tap e-mails
and mobile phones are insufficient to comply with human rights, according to
a new legal opinion.

The Regulation of Investigatory Powers bill, "on the face of it breaches the
new Human Rights Act on several grounds", said Tim Eicke, a barrister and
author of the opinion.

"As these are significant breaches, we expect the Home Office to engage in
open debate on how far this bill will fail to be human rights compliant,"
said Madeleine Colvin, legal policy director at Justice, the civil liberties
group that commissioned the opinion.

Charles Clarke, the Home Office minister responsible for the bill, said
there were a "large number of legal opinions floating around", and insisted
the bill could withstand legal challenges. But he conceded there would
probably be a "large number of issues fought out in the courts" after the
human rights act comes into force in October.

Mr Clarke defended the contentious provisions in the bill that make it a
criminal offence not to disclose a requested decryption key to the police.
The holder has a defence if they can prove they do not have the key or
cannot access it because, for example, they have forgotten the password.

He said the courts would weigh up the "credibility" of the person charged -
genuine excuses had to be balanced against a "criminal who pretends to

The Foundation for Information Policy Research attacked this approach. "The
question of the reversal of proof has been festering for eight months," said
Caspar Bowden, the foundation's director. "It is time for the Home Office to
give a reasoned explanation of how an innocent person who has forgotten
their key can be expected to prove this."