Report received.
Things have been no less easy in respect of the short time period between Committee and Report stage. Again, I have particularly appreciated attempts by noble Lords opposite to explain their position to us and indeed to give us prior warning of amendments, where possible. I hope that noble Lords believe that we on the Government side have been able to return the favour although I still feel some need to express apologies for the late tabling of some of our amendments.
12 Jul 2000 : Column 256
I must also mention the codes of practice supporting the Bill which were published on Monday of this week. I had undertaken to publish them in advance of Report stage. I regret that it was not possible to publish them sooner. I also regret the imperfect state of the preliminary drafts: there is still some considerable amount of work to be undertaken. None the less, I hope that the publication of the drafts is appreciated as giving considerable information as to the Government's intentions in this area.
There are still issues to be resolved and the drafts were published before consultation with key constituents was possible. In particular, these drafts have not been shared with colleagues in industry before publication. Experience tells us that we would normally expect to amend the drafts, possibly in some significant areas, once we have had the benefit of input from experts in industry. We have greatly appreciated that input all the way through the Bill. None the less, I hope that the effort in publishing them at this time is helpful and appreciated and that the general input of the codes informs the deliberations of this House rather than confuse it.
There are some particular areas in the codes which we know require further informal consultation before we can release them for formal consultation under Clause 69 of this Bill, once enacted. These are in addition to the issues that may well be of most interest to industry. I am aware that we also require further work in consultation on the provision affecting legal, medical and spiritual confidentiality. That is one issue which is relevant to all four codes. Separately, we do appreciate the need to develop further appropriate wording to reflect the well developed arrangements which already exist between agencies and telecoms operators regarding the supply of communications data. In this respect, the extant ACPO codes are rather more developed than the codes we were able to publish on Monday. But I can give a commitment that we shall be seeking to develop the codes published on Monday more in line with the ACPO codes on communications data, perhaps explicitly reflecting higher levels of authorisation for particular types of access to communications data.
That concludes my opening remarks in respect of the debate on this Bill. I look forward to further debates today and tomorrow. I record once more my gratitude to noble Lords opposite for helping us with the background to some of the amendments that have been tabled in order that we can have a positive and constructive debate on the main issues.
In moving government Amendment No. 1, I speak also to Amendments No. 2 to 4, 6 and 99. These cover the definition of "communications data" which has been the subject of much debate and press interest, particularly since the Government introduced the amendment to tackle dial-through fraud. The noble Lord, Lord Lucas, was the first to voice his concerns, and his views were supported by industry representatives as well as other noble Lords.
During the debate on Chapter II on 19th June, I undertook to return to the House with a new definition of "communications data" which reflected the
12 Jul 2000 : Column 257 distinction more clearly. Since then a great deal of work has gone into producing a refined definition which could address the needs of all interested parties. At the time of that debate I explained that the new definition would have to satisfy three elements. It would have to include in what manner and by what method a person communicates with another person or machine, but exclude what they say or what data they pass once the connection has been established (that is, content of communications) and still allow dial-through fraud to be properly investigated.
We believe that the amendments more closely defining "traffic data" as a sub-category of "communications data" which stand today in my name do just that. They ensure that the definition cannot be interpreted to include any content of communication or interaction with websites.
Because the new definition is necessarily fairly complicated, it may assist noble Lords if I explain what each part is designed to achieve. For all of the data in paragraphs (a) to (d) to count as communications data, they have to meet the test in clause 2(5)(a)--that is, they have to be comprised in or attached to a communication for the purpose of a telecommunications system by which the communication is being transmitted. The first two parts are relatively self-explanatory: new paragraph (a) covers subscriber information; and new paragraph (b) covers routing information. New paragraph (c) is the subsection covering data which actuate apparatus--this is the part designed to address dial-through fraud. New paragraph (d) catches the data which are found at the beginning of each packet in a packet switched network which indicates which communications data attach to which communication. Finally, the tailpiece to the new definition puts beyond any doubt that in relation to Internet communications, traffic data stop at the apparatus within which files or programs are stored, so the traffic data may identify a server but not a website or page.
I hope that that careful explanation helps to expedite the debate. I trust that it is clear and uncomplicated. I beg to move.
Lord Cope of Berkeley: My Lords, we are grateful for the Minister's remarks. Perhaps I may refer to them as the noble Lord's "apologies" for some of the difficulties with the Bill. I am grateful also for his understanding of our severe difficulties in dealing with the Bill. For those us who are neither lawyers nor electronics experts, trying to translate the arguments of one group of persons to another and to draft amendments capable of being discussed in your Lordships' House has been a great test.
The Minister referred to the codes of practice. We are also grateful to him for publishing them although in a highly draft state. Nevertheless, it is still valuable to have sight of them at this stage.
The Bill is also in a fairly highly draft state although we are moving towards the end of our consideration of it. It is still being severely criticised by a wide range of bodies and companies, not only those operating in the field of the Internet, and so on, but also charities, organisations and trade unions of every kind. For that reason, we and others outside the House appreciate the willingness of the Minister and his colleagues radically to amend the Bill. The attitude of the past few days has been in sharp contrast with that of Mr Charles Clarke at the end of consideration of the Bill in another place when he expressed the view that your Lordships' House would be offered only minor and technical amendments. We are a long way from that.
We are all agreed--I mentioned it at Second Reading--that dial-through fraud needs to be tackled. That is part of the basis of what is being done. But we also recognise that the Government have moved very considerably in terms of the definitions by introducing the new definition of "traffic data", leaving other types of communications data subject to the full rigours of the remainder of the Bill. Although it does not divide data into quite as many different categories as many, including myself, would have wished, that is a move in the right direction.
We have some detailed comments. It might be helpful if we discuss those in separate groupings. I do not think that that will take more time; it may make our debates more logical.
On the main amendment describing traffic data, while we can criticise it in detail we welcome the move in principle. We are all agreed on what should be achieved by these definitions. As the Minister said, we wish to exclude content from traffic data or other data which can be got at readily. We understand the need to get hold of what is properly called "traffic data".
Lord McNally: My Lords, I share the understanding the noble Lord expresses for the Minister's dilemma. I think that we all take the attitude that we would not have started from here--but here we are. There has been an element of the politics of the souk as the Bill has passed through your Lordships' House, with offers and counter offers. In the end I believe that what we are doing is to the credit of this House.
The Bill emerged from the Commons with concerns expressed by civil liberties groups and the industry. We hope that we are edging towards a better Bill. The purists may find fault with the Minister's attempts to define "communications data", but it is a definition that we can live with. It is moving in the right direction and in the right spirit. Perhaps by the end of our proceedings we shall have a Bill with which we are all satisfied. But that will be the case only if we continue in the spirit of listening not because the Opposition parties want to score points but because even at this stage, and after considerable movement by the Government, there are concerns which we want to explore.
We are perhaps victims of our own strategy because we promised to be a listening Government in this exercise as in many others. We have kept to that promise and have tried to capture the sense of concern expressed by the industry and reflected on all Benches in your Lordships' House. As was said by the noble Lord, Lord McNally, this is the House at its best looking in detail at a piece of legislation, finding it wanting in some respects and the Government able and willing to try to accommodate those real and genuine concerns.
I trust that the amendments meet with your Lordships' satisfaction and I commend them to the House.
On Question, amendment agreed to.
Lord Bassam of Brighton moved Amendments Nos. 2 and 3:
Lord Bassam of Brighton moved Amendment No. 4:
("(9A) In this section "traffic data", in relation to any communication, means--
(a) any data identifying, or purporting to identify, any person, apparatus or location to or from which the communication is or may be transmitted,
(b) any data identifying or selecting, or purporting to identify or select, apparatus through which, or by means of which, the communication is or may be transmitted,
(c) any data comprising signals for the actuation of apparatus used for the purposes of a telecommunication system for effecting (in whole or in part) the transmission of any communication, and
(d) any data identifying the data or other data as data comprised in or attached to a particular communication,
but that expression includes data identifying a computer file or computer program access to which is obtained, or which is run, by means of the communication to the extent only that the file or program is identified by reference to the apparatus in which it is stored.").
Lord Cope of Berkeley moved, as an amendment to Amendment No. 4, Amendment No. 5:
Your Lordships will appreciate that mobile telephones are becoming increasingly more sophistocated. The location of some of the newest ones can be tracked through global positioning systems or other electronic means. That means that if the location
12 Jul 2000 : Column 260 is regarded as traffic data, which can readily be obtained by the police and other authorities, the police will be able to follow someone carrying one of the new mobile telephones without troubling further.
I can see that that would be a great facility for the police but it could also be highly intrusive in following someone from shop to shop or from home to another location. It is not in the nature of ordinary traffic data--for instance, a telephone number--but it is a highly intrusive power.
I am not saying that the police should never be allowed to use it; the whole Bill provides a framework for giving different levels of authority to different types of information. The question posed by the amendment is where the location of a particular mobile telephone, and hence of a particular person, should fall in the categories of information to be revealed.
Amendment No. 4 suggests that it should be placed in the lowest category of traffic data, and therefore readily obtainable to the authorities, and that any invasion of privacy involved should not be considered. I beg to move.
Lord McNally: My Lords, I believe that the Minister can use his favourite word, "proportionality", in respect of the amendment. It has been pointed out to me that in some cases the ability to track the movement of a mobile telephone could be most important; for example, in the movement of drugs. One can there see the point of the power. However, another scenario put to me was of the noble Lord, Lord Cope, meeting Mr Portillo privately. The ability to track that would be an outrageous intrusion into his private activities.
Lord Cope of Berkeley: My Lords, I am happy to meet Mr Portillo and I frequently do--and I do not mind who knows!
Lord McNally: My Lords, the scenario put to me was even more lurid, but I shall go no further. In any event, as we all know, Mr Portillo prefers landlines to mobile telephones when he is plotting something.
Returning to proportionality, one can well understand that the authorities may need such powers in relation to a serious investigation into drugs. If that were the case, surely, as the noble Lord, Lord Cope, argued, a higher rather than a lower category of authorisation should be required. It would be interesting to know why the Government have opted for the lower category.
Accessing information about the position of a mobile telephone transmission bears comparison with the planting of location devices on vehicles. It would
The proposal raises other issues. I can understand the Minister's intention in Amendment No. 4 that the word "location" should convey "address". But with modern e-mail communications and other types of data transmission, location and address rapidly diverge. One could use the same e-mail address to transmit from a fixed point or from mobile points at will.
I believe that my noble friend Lord Cope has put his finger on an important issue and it would be interesting to hear whether the Minister intended to mean that the location data from mobile telephones should be able to be accessed through the lower category of permission. If not, I am sure that we can come up with a compromise that might clarify the issue. However, I believe that the Bill, as it is proposed to be drafted within the amendment, leaves open a very wide door.
Lord Howell of Guildford: My Lords, I wonder whether the amendment, which my noble friend rightly has put forward, takes account of the ever-onward movement of the technologies which are moving far faster than can legislators. I think in particular of the wireless access protocol which is now progressing here in its third generation. That will give people with mobile phones access to both e-mail and the Internet, wherever they may be, and of course to the i-mode system in Japan, which many Japanese argue is superior to the WAP and, indeed, may eventually replace it. I know that it is controversial and those who invest their money in the WAP would not like to hear that. However, it is a possibility and things are moving very quickly.
In Japan--it will happen here, too--something in the region of 60 million people have mobile telephones, of whom approximately 15 million are already on the i-mode Internet e-mailing system. All those people move about all the time. There is no question of their location existing for more than a second. By definition, they are using mobile telephones for mobile business and mobile activity. I wonder whether the drafters of the Bill have understood that the vast majority of e-mail traffic will not take place in fixed locations but will be among people who are on the move in a totally inter-connected world.
I turn to the amendments which relate to the new definition. Amendments Nos. 5 and 29 would exclude the word "location", as the noble Lord, Lord Cope, explained. However, there are--I believe that the noble Lord, Lord McNally, put his finger on it--many circumstances, not only in criminal investigations,
There is, of course, another side to the argument in relation to calls to the emergency services. The fact that the location of telephone boxes can be passed quickly to the police acts as a very effective deterrent against hoax callers. The information is no less useful when it comes to mobile telephones. I am sure that we have all read about injured mountaineers who are rescued on the strength of the information which the telephone company is able to give regarding the location of their mobile phones.
I realise that the concern expressed by noble Lords focuses more upon the way in which location data may be used as a surveillance tool rather than as an aid to emergency services. I also recognise that the use of location data should be properly regulated. The noble Viscount, Lord Goschen, made the point very well and it is a topic to which we shall return when we discuss amendments tabled by the noble Lord, Lord Lucas. I believe that I shall be able to offer some reassurance on that score.
As I indicated in my opening remarks, we are considering the appropriate level of authorisation for types of communications data. The noble Lord, Lord McNally, is right to refer to the issue of proportionality and of getting the balance right, particularly in terms of investigations. That issue is already addressed in the non-statutory agreements between ACPO, Customs and the telecoms industry, and authorisation must be sought at the level of Assistant Chief Constable. That is what we intend to put in the code of practice and I believe that that is the appropriate level to which the matter should be referred.
I hope that what I have said about the amendment is sufficient to show that location needs to be included in the definition. Perhaps I should remind your Lordships that this view was shared by those who drafted the European convention on cyber crime, on which the definition is in part based. Therefore, I trust that those reassurances and comments will help the noble Lord, Lord Cope, to withdraw his amendment. I believe that they should.
Lord Cope of Berkeley: My Lords, in the light of the Minister's response, I beg leave to withdraw the amendment.
Amendment No. 5, as an amendment to Amendment No. 4, by leave, withdrawn.
Lord Bassam of Brighton moved Amendment No. 6:
(a) references, in relation to traffic data comprising signals for the actuation of apparatus, to a telecommunication system by means of which a communication is being or may be transmitted include references to any telecommunication system in which that apparatus is comprised; and
(b) references to traffic").
Lord Bassam of Brighton moved Amendment No. 7:
("and in this section "data", in relation to a postal item, means anything written on the outside of the item.
(10A) The Secretary of State may by order modify the provisions of subsections (5), (9A) and (10).
(10B) The Secretary of State shall not make an order under subsection (10A) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").
Our difficulty here is that in order to define communications data with sufficient specificity to avoid including content of communications data, the definition has become rather more complicated than I suspect many of us would prefer. However, the more complicated a definition, the greater the chance of it being overtaken by technical developments. For that reason, we have sought to leave the Government some flexibility in order to ensure that if the definition becomes badly out of date it can be amended through a relatively simple procedure but still with the oversight provided by the affirmative resolution procedure.
I wish to make two further points. First, I want to state for the record that the definition is intended to cover communications data and not the content of communications. Any amendment to the definition would be carried out only in that spirit. I believe that that needs to be understood. Secondly, none of us can predict how advances in technology might affect the definition--a point acknowledged, I believe, by the noble Lord, Lord Howell. It may move in such a way as to allow intrusion into privacy to occur in a manner that we cannot possibly envisage at present. In those circumstances, a power to amend the definition may be seen more favourably. I beg to move.
Lord Cope of Berkeley moved, as an amendment to Amendment No. 7, Amendment No. 8:
The noble Lord said: My Lords, it may be convenient to discuss Amendments Nos. 8 and 33 with Amendments Nos. 7 and 32. Although I had previously suggested that they might be degrouped, I believe that it would be helpful to discuss them together.
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There are two parts to Amendment No. 7 and its friend. The first part is, if I may say so, an extremely neat definition of "traffic data" in respect of mail and distinguishes it from "contents". It states quite simply,
More controversial is the power to which the Minister referred to modify those provisions. He explained that it was intended that the power should be used only in order to preserve intact, as it were, the exclusion of contents. I am paraphrasing, but not inaccurately, I hope.
We would support subsequent modifications that became necessary to ensure the continued exclusion of content, but that is not how the power is written. Sometimes, powers are written to give a one-way ticket for the statutory instruments, not a two-way ticket. For example, in tax law it may be possible by order to alter a particular allowance or tax either upwards or downwards, but not necessarily in both ways. The amendment does not say that the Secretary of State may, by order, modify the provisions of the subsections to preserve content from inspection. It says only that he may modify the provisions--in any way. The order-making power could be used very widely to make it easier for the police and the other services to obtain much more data.
That is an important potential distinction. At one end of the scale is material that can be obtained readily by the police. In the middle, higher permission is required, from the chief constable or the assistant chief constable. At the top of the scale, the Secretary of State's warrant is required. Only a statutory instrument stands between those very different powers. That is what led us to table the amendment. The question is whether the Minister's word that the power will be used in only one way and not the other is sufficient for your Lordships' House. I beg to move.
Lord McNally: My Lords, the amendments have to be seen against the background of two facts. First, as the noble Lord, Lord Cope of Berkeley, has just said, the government amendment could swing both ways. It would not be so bad if we had overall confidence in the Government's instincts in these matters, but given the genuine public concern about the implications of the Bill, the House is right to pause and think whether the Secretary of State should have such powers in secondary legislation.
Secondly, as the noble Lord, Lord Howell of Guildford, said, the problem with the Bill is that it is being enacted against a background of rapidly developing technology. We often see the phenomenon in broadcasting legislation, but it is perhaps even more evident in this case that the Government want as much flexibility as possible in secondary legislation, because they know darned well that the technological
There is a balance to be struck. How much do we trust the Minister's assurances--which I am sure are made in absolute good faith--about why the amendment is necessary? As the noble Lord, Lord Cope, has rightly pointed out, it does not just give flexibility to underpin the meaning of the present legislation; it leaves a loophole for the Secretary of State to broaden the remit. That is a matter of real concern and the Minister will need to be eloquent to convince the House.
Lord Lucas: My Lords, as an aside, when I send an item by recorded delivery, the post office counter clerk peels off a sticker with a barcode on it and sticks it on the outside of the envelope. Is that barcode
Lord Bassam of Brighton: My Lords, as ever, the noble Lord, Lord Lucas, asks a puzzling riddle. I am not sure that I have the answer. I suppose that the answer must be yes, but I shall ponder on it.
I am grateful to the noble Lords, Lord Cope and Lord McNally, for the way in which they have approached the amendments. The noble Lord, Lord Cope, has clearly understood our intent. I have made it clear that we do not intend the definition to cover the content of communications. That is the spirit in which we seek this extra flexibility. We are not conspiring to find a way of gaining access to further information about the detailed content of communications at some later date. I hope that I have expressed that sufficiently forcefully to offer some reassurance.
Amendment No. 8, as an amendment to Amendment No. 7, by leave, withdrawn.
On Question, Amendment No. 7 agreed to.
The Earl of Northesk moved Amendment No. 9:
("( ) For the purposes of this section "general reception" shall have the same meaning as in section 1(7) of the Broadcasting Act 1996.").
My major complaint is that the drafting is sloppy and unclear. I freely concede that the Minister offered the comfort that:
I acknowledge too that the Bill has been drafted with the aim of providing some element of future-proofing. I do not decry that. Because of the Bill's focus on the new technology, it is a worthy aspiration. But that should not be delivered via the expedient of legislative uncertainty; hence my amendment.
I acknowledge that it has its imperfections. My researches to date have not yet unearthed a truly generic definition of the phrase in existing statute. However, the Minister helpfully advised the Committee that,
12 Jul 2000 : Column 267
In other words, the amendment delivers no more and no more less than the Government's position on the issue, as espoused by the Minister. That being so, I could reasonably anticipate that the noble Lord might be well disposed towards it. I beg to move.
Viscount Goschen: My Lords, in Committee, we had an interesting, if somewhat confused, discussion about this issue. During the course of that, we were unable to reach a definitive view on the meaning of "general reception" or "general broadcast".
I welcome the initiative taken by my noble friend Lord Northesk. If the Minister does not like the definition which my noble friend proposes--I have no idea whether or not he does--it is incumbent on him to find something equally good, if not better.
Lord Bassam of Brighton: My Lords, Amendment No. 9 seeks to clarify that the phrase "general reception". In Committee, I relied on the Broadcasting Act 1996 definition which would mean,
In response to the noble Earl's amendment, I should say first that it does not provide a definition of "broadcast for general reception". That is because the Broadcasting Act does not do so--and we do not believe that we should try to do so either.
In our view, broadcasting for general reception implies that the transmission is intended to be received by anyone who wants to receive it. Whether to receive it is an individual's own choice. A person may, for example, choose not to buy a TV receiver or not to buy a digital decoder; but the transmission is there for him if he wants it.
The question arises of whether pager messages and mobile telephone base station transmissions fall within this category. We believe that the answer is no. A paging message has to be addressed to a particular number or group of numbers and is received only by a person or group of persons whose pager is programmed with that address number. Other people, even though on the same pager system, will not receive the message unless it is addressed to their pager number also. The same is true for mobile phones: many people call on the same system, but a call will be received only by a phone with a number to which the message is addressed.
Finally, I should confess that I referred in error to Section 1(7) of the Broadcasting Act 1996 when I responded to the noble Earl's amendment in
12 Jul 2000 : Column 268 Committee. Although the definition of "general reception" was indeed originally contained in that subsection, the same definition is now to be found in Section 1(1A). I hope that I have made the position plain and, on that basis, I hope that the noble Earl will feel able to withdraw his amendment.
The Earl of Northesk: My Lords, I thank the Minister for that reply. I remain uncomfortable about the issue but, at this time, I fear that I may have to resign myself to living with the uncertainty for a little longer. I may try to return at Third Reading with a definition of "general reception" which would satisfy both of us.
Lord Bassam of Brighton: My Lords, if, before Third Reading, the noble Earl wants to share his thinking on that, we shall be more than happy to explore any further views he has on the subject.
The Earl of Northesk: My Lords, I thank the Minister for that suggestion and I hope that I shall be able to take it up. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
("( ) Conduct taking place in a state hospital is authorised by this section if it is conduct in pursuance of, and in accordance with, any direction given to the State Hospitals Board for Scotland under section 2(5) of the National Health Service (Scotland) Act 1978 (regulations and directions as to the exercise of their functions by health boards) as applied by Article 5(1) of and the Schedule to The State Hospitals Board for Scotland Order 1995 (which applies certain provisions of that Act of 1978 to the State Hospitals Board).").
Amendments Nos. 10 and 11 relate to hospitals in Scotland. The current Clause 4 referring to high security hospitals would not have authorised similar conduct within the state hospital at Carstairs in Scotland. The sate hospital is the Scottish equivalent to our high security hospitals. We have discussed this matter with the Scottish Executive and the amendments that we have tabled will ensure that an equivalent regime can operate.
Similarly, Amendment No. 12 adds the term "young offenders centre" in subsection (8)(a) to ensure that the equivalent institution in Northern Ireland is able to operate in exactly the same way as prisons, young offender institutions or remand centres in the rest of the United Kingdom. I beg to move.
Lord Cope of Berkeley: My Lords, I am sure that all Members of your Lordships' House with Scottish links
will be very glad that the Government have at last recognised the differences and have included them in this.On Question, amendment agreed to.
Lord Bassam of Brighton moved Amendments Nos. 11 and 12:
"state hospital" has the same meaning as in the National Health Service (Scotland) Act 1978.").
Clause 12 [Maintenance of interception capability]:
Lord Bassam of Brighton moved Amendment No. 13:
("( ) A person shall not be liable to have an obligation imposed on him in accordance with an order under this section by reason only that he provides, or is proposing to provide, to members of the public a telecommunications service the provision of which is or, as the case may be, will be no more than--
(a) the means by which he provides a service which is not a telecommunications service; or
(b) necessarily incidental to the provision by him of a service which is not a telecommunications service.").
I give an example to explain what that means in practice. A bank may decide that it will offer a telecommunications service to its customers, as a means of providing access to its banking service. As a result, customers are able to communicate with that bank, perhaps by e-mail, and make transactions or check the balance of their account. Where such a service is provided, the effect of the amendment is to exclude its provider from any obligations imposed under Clause 12 to develop or maintain an interception capability.
The amendment also puts outside the scope of Clause 12 a telecommunications service that is necessarily incidental to a different service. There may be businesses now, or in the future, which offer a telecommunications service only as part of a wider, non-telecommunications operation. The telecommunications aspect might be an integral part of the business; but only as a necessary off-shoot of the non-communications business. Clause 12 will not cover such a service.
With regard to the specifics of what the order made under Clause 12 will contain, my honourable friend Mr Clarke explained in another place that there was a three-stage process towards reasonable intercept capability. The Bill is the first stage. It sets out the principle that some service providers should maintain
12 Jul 2000 : Column 270 an intercept capability. This is an established principle that has been long adhered to by public telecommunications operators.
The second phase will be an order laid before Parliament for the establishment of a reasonable capability. That order can be made only after consultation with those likely to be affected and must be approved by each House. It will set out what kind of businesses are proposed to be covered. The order cannot go beyond the meaning of "public telecommunications services" in the Bill. In particular, it can apply only to telecommunications services that are
The third phase will be the serving of individual notices on communication service providers. Those will state the capability that they are expected to provide and the time scale for provision. The individual notices will result from a dialogue between the Government and the service providers themselves. The notice will take account of the circumstances of each provider and will be consistent with the order passed by Parliament.
I hope that this amendment will be welcomed by all sides of the House. I beg to move.
Lord Lucas: My Lords, I am happy to see this amendment. It removes the question as to whether ATM networks and other such matters would be liable under the Bill. Perhaps the Minister, now or later, can satisfy my curiosity as to which side of the line JANET falls.
Lord Bassam of Brighton: My Lords, I shall have to satisfy the curiosity expressed by the noble Lord later!
On Question, amendment agreed to.
("( ) The person to whom a notice is given may refer the notice to the Technical Advisory Board to consider the technical requirements and the financial consequences and the Board shall report their conclusions on those matters to that person and to the Secretary of State.").
We propose that there should be a technical advisory board and that the board should consist of six representatives, chosen by the Secretary of State, of the kind of companies affected by this legislation such as Internet service providers and others, and importantly some of their customers, banks and so on. There should also be six representatives of what one may
12 Jul 2000 : Column 271 describe as the users of interception: the police, Customs and Excise, the security service and others. It is intended that the board should be balanced.
In Committee we suggested that the interception commissioner should be a member and should chair the board. We have not retabled that proposal, but equally we have not necessarily abandoned it. Speaking for myself, I am not desperately concerned about the details of the board. The figure of six may be varied--certainly upwards--although I do not believe that it should be too large. Who should chair the board is also a matter for consideration. What is important is the principle.
We have in mind two jobs for the technical advisory board. The first is to consider the technical aspects and feasibility of orders put by the Secretary of State, under Clause 12, on the basis of which black boxes will be inserted in Internet service providers and others. That is a highly technical matter. The Government commissioned the Smith report from external consultants in order to look into the matter and to open it up. Within the industry that report has been quite widely criticised, but the great value of it to all of us who have taken an interest in such matters, is that it has exposed this difficult and continuing problem. One thing that we can be certain about is that technology will develop at a rapid rate in the future.
It is not just a matter of the Secretary of State laying down an order and a whole series of black boxes springing up in the appropriate parts of the economy; on the contrary, I believe that successive Secretaries of State will find themselves having to propose to Parliament further orders as time goes on. I believe that it would be in the interests of all if a small group, such as the technical advisory board, that we propose, should have the statutory duty, as suggested in our amendment, to consider this matter on a continuing basis. As a result I believe that a much greater understanding would grow up between those in the electronic communications industry and the users that I have described--the police and other authorities. Each would have a much greater understanding of what should be achieved and the best ways in which to do that.
The second job of the board would be to consider what may be called appeals from individual Internet service providers or others who are required by a notice following a statutory instrument to install a black box within their set-up. The amendment that we tabled in Committee suggested that all such notices should be vetted by a technical advisory board--or as we then called it, a technical approvals board--and that all such notices should be approved. It was said to us, particularly by BT, that people would not want such a notice to be seen by others in the industry. That is understandable and, in due course, that view may be shared by others. As a result we have made it an appeals procedure so that the ISP can, if it wants, ask the technical advisory board to look at its notice to see whether it is technically feasible and sensible to do it in a particular way.
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Internet service providers and others who will be affected by this point differ greatly in their size, their technical capacity, and so on, and in future they will differ even more. As a result, every notice will be quite different.
In Committee, the Minister's view seemed to be that no one in the industry was supportive of this idea. If that was his view, I hope he has been thoroughly disabused of it now. The Internet Service Providers Association and Linx, the London Internet Exchange, have confirmed to me that they are in favour of a technical advisory board, along the lines suggested in the amendment, as have the CBI, the Federation of the Electronics Industries and others who have considered the matter. They all favour it because of the potential complexity and obtrusiveness of the black boxes as a method of looking at e-mails and other traffic. It is sad to say, but the Government have succeeded with this Bill, and particularly with this black box proposal, in frightening a large section, not only of the electronics industry, but also of the whole of the economy, including banks and others involved in international business.
From the start we have all accepted, as do those who comment from outside, that it is valuable and important for the police and others to be able to tap telephones and now to tap e-mails to capture criminals, terrorists, paedophiles and others. But it is a question of balance and a question of how far we go with the regulatory framework. I am sure the Minister will recognise the phrase,
I realise that a sort of impact assessment was done in the case of this Bill. But it has been hugely criticised and was certainly not discussed in the way intended as far as I can gather from the White Paper. So this remains an extremely important matter for the whole future of e-commerce in this country. If we do not succeed in reassuring electronic business in this country--and that is every business these days--e-commerce will not have a future in this country, certainly not the future the Prime Minister and others in the Government envisage for it.
We all want our country to be in the forefront of e-commerce. This proposal is perceived as threatening that. The Minister may say it is only a perception. But it is the way in which the Bill is drawn and the lack of reassurance in it that gave rise to that perception. And that perception continues to grow the more we discuss the Bill. In the end, it is perception that matters. It is the perception of these
12 Jul 2000 : Column 273 things that decides whether or not companies invest here and whether or not companies here expand their e-commerce business.
We have all read--I am sure the Minister has--of companies even in the past day or two saying that, if this Bill is not amended, they will move the centre of gravity of their operations overseas. Those are serious companies and I believe that there are others who hold the same view who have not gone public. It is those perceptions we must change. One of the important amendments which would help to change that perception is the introduction of the technical advisory board on the lines set out in Amendment No. 14. I beg to move.
Lord McNally: My Lords, the noble Lord, Lord Cope, eloquently and pertinently explained the reasons for this amendment. I can think of no better way of changing the external perception of the Government's attitude to this Bill than if the Minister were to stand up and accept this amendment. It is over 50 years since the late Douglas Jay suggested that the man in Whitehall knows best. If ever there was a Bill that proved that the men and women in Whitehall may not know best, it is this one. There is no doubt that if the Government had got closer to industry and used the great expertise that is out there earlier, this Bill would have been in a better shape earlier.
What strikes me about Amendment No. 14--I confirm the assertion of the noble Lord, Lord Cope, that industry wants such a statutory body--is that it gives the Government the opportunity of repairing earlier omissions. Instead of wasting money on external consultants, they have the opportunity of obtaining the advice of industry experts.
Viscount Goschen: My Lords, I endorse the comments of the noble Lord, Lord McNally, and my noble friend Lord Cope. The stakes are extraordinarily high at this point in the development of the e-commerce industry, an industry in which the United Kingdom takes a strong leading role.
The Minister has asserted on a number of occasions that he feels that the United Kingdom is taking a view towards e-commerce security which will be followed
In moving the amendment the noble Lord, Lord Cope, said that BT was worried about these notices being public rather than being used individually. I understand that there are issues of commercial confidentiality, but that will have a bearing on how the proposed technical advisory board operates. If the users are to fall under paragraph (a) of Amendment No. 17, some of them may be competing ISPs. Such matters will have to be taken into consideration when the composition of the board is decided.
I apologise for not taking part in the Committee stage; indeed, I regret it. However, the Report stage will allow me to express fears that I suspect are increasingly widely shared, as the general public become aware of what is proposed and how the whole slant of the Bill, which I recognise has been accepted by parties on both sides of the House and in the other place, is really in favour of a bureaucratic hierarchical order of the kind that is actually being swept away by technology. We are moving into a network world in which this kind of attempt by such central authorities will, in five years' time, look as absurd as did the attempts of the old authoritarian governments of the 1960s and 1970s who tried to keep a grip on their societies in eastern and central Europe. In the end, they were swept away not only by politics but also by technology. I believe that technology will carry this whole process along far faster than government officials or bureaucrats recognise.
Lord Stevenson of Coddenham: My Lords, I had not intended to speak during the Report stage and must apologise to the House for doing so because I did not speak in Committee. That can be put down partly to inexperience as I am very new in this place and partly, quite frankly, because I had not understood some of the implications of this Bill as regards some of my activities. I must declare an interest at this point in that I chair two of our top 20 companies, both of which are huge investors in Internet-driven companies, spending about £2 billion this year. I personally invest in a number of rather smaller companies.
However, those companies all have in common--this is most important--the fact that they will ultimately be paying for this regulation. I suspect that the Minister has been lobbied by the people immediately affected. I have to admit that large companies like the ones I run have not really understood the implications involved. Despite all the publicity, I believe that that is an important point that Her Majesty's Government should take on board.
Lord Phillips of Sudbury: My Lords, I should like briefly to refer to a point already mentioned by the noble Lord, Lord Desai, in relation to the amendment so tellingly moved by the noble Lord, Lord Cope of Berkeley. Indeed, the noble Lord, Lord Cope, was open and "liberal" enough--dare I say it?--to say that the precise composition of the technical advisory board is not written in stone in his mind.
Although there is talk in the amendment of there being six members on the board appointed from the providers of technical services and six from the agencies which will use the powers under the Bill, there should be representation from the consumers of these services, not just the voluntary sector consumers but consumers generally. I congratulate the noble Lord, Lord Stevenson, on one of his earliest interjections. Amendments Nos. 18, 19 and 20 will deal more directly with the important points that he raised.
I may be able to develop a way round the black boxes. My main e-mail currently resides on a server probably based in Seattle as an American service provider provides my mail box. I assume that my communication goes straight across the Atlantic and is downloaded over there. That provider will not have a black box. If I get a cheap link from one of the telecoms providers to take me across the Atlantic for 3p a minute, presumably I can get round the black box by
Viscount Goschen: My Lords, with the leave of the House, I make the following point. I am well aware that we are on Report. The noble Lord cannot just dismiss the point made by the noble Earl. That matter is absolutely key; namely, that Internet traffic can be routed via overseas ISPs to evade cost, as well as regulatory and technical burdens. The noble Lord must address that issue.
Lord Bassam of Brighton: My Lords, I shall endeavour to do that. However, at this stage I wish to focus on the issues that have been raised in the debate and on some of the underlying issues. I believe that the noble Viscount, Lord Goschen, invited me to set out the Government's broader thinking, not least on issues of cost. I wish to discuss that before I turn to the amendments relating to the possible creation of a technical advisory board.
In Committee, I was pressed to make a more general statement about the Government's intentions with regard to the implementation of Clauses 12 and 13. It is right that I should respond to that matter now. Our response is not to alter the legislation significantly. We do not believe that that would be appropriate in this case. However, we can and do intend to give a greater indication of our strategy in approaching the allocation of costs and the implementation of an intercept capability. I wish to tell the House what we have in mind.
6.15 p.m.
"as it appears to him reasonable".
On occasion companies will dispute that those obligations are reasonable. They will say that the obligations are technically impossible and that they cannot be delivered in the way that is envisaged. I believe that some mechanism will have to be put in place to resolve such disputes. Therefore, is it not far better for the Government to accept such a mechanism and a committee of experts in the first place?
The rest of the money would, exceptionally, be available to service providers who require help with the installation of a new intercept capability due to new technology. Primarily, we are thinking here of the integration of the Internet protocol interception capability. My first point is that most service providers will not be approached with a requirement to install a capability. There may be some planning and consideration costs for smaller companies, but we genuinely do not think that these will be significant for larger companies. Where installation requirements are significant in terms of the size of the company, the Government will make a contribution. We have said many times that we expect these companies to be small in number. That view continues to be the case. Once installed, the CSPs will be responsible for ensuring that the Internet protocol interception capability is updated to intercept new services they offer and changes within their network.
I should at this stage divert to answer a couple of frequently asked questions. Some people assert that, as the coverage will not be universal, all that criminals will need to do is use a service provider that does not contain this capability. Others say that as the requirement will not be universal it will necessarily create inequities in the communications market. We reject both of those assertions.
As to the first assertion--that criminals will simply use service providers that do not maintain a capability--we do not expect that criminals will know which service providers maintain a capability. A more significant point is that criminals have, one presumes, known for some time that it is possible to intercept telephones--but this does not stop them using telephones. It is also the case that, while all public telecommunications operators may be required to maintain a capability, only a small number are called upon to do so in practice--yet we have shared with this House many times the significant results from interception at present--£185 million-worth of drugs was seized in this way in 1998. Current successes are ones that the UK as a whole simply cannot afford to lose.
As to the second point, that this will create inequities in the market, we reject this too. This will not be the case. The same criteria will be applied to all service providers regardless of the situation. The criteria will be: is this a new requirement on the service provider; how significant is the cost in terms of the overall size and turnover of the company?
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In practice, we do not expect to approach the smallest companies in this way. However, the smaller the company, the greater proportion of its costs the Government will meet, up to and including the entire cost of installation. None the less, if considerations are appropriate, we believe that it may be possible to reimburse some of the larger companies for some of the costs of installing a capability to intercept traffic carried over Internet protocols.
I should highlight one point: this money is all intended to be focused on the costs of developing, building and, in some cases, integrating the equipment for Internet protocol interception rather than on maintaining the capability. It would all be for the costs over the three years starting from next April. Once installed, and if the capability continued to be required, we would expect service providers to maintain and upgrade equipment; and, indeed, we would expect service providers to continue to maintain and upgrade equipment which already exists. I hope that that is an indication of how the Government expect to spend the money. We would approach the task by working with industry, with the intention of allocating the money only in respect of new requirements due to new technologies and loaded towards the smaller companies, although not exclusively for their benefit.
Parliament can expect more detail on these issues to be set out in the order which must precede any requirement under Clause 12 of the Bill. The money will cover the period 2001 to 2004. We do not think that it is possible at this stage to give an indication of our intentions beyond 2004. Further technological considerations may well by then have affected the equation, a point made very ably by a number of noble Lords. But we undertake to monitor the experience of the system we will put in place and to review and consider the cost issues--and to return to Parliament if necessary--at the end of that three-year period.
We believe that our practice continues to be consistent with international practice, and this is something that particularly we will keep an eye on over the next three- year period. For example, under the Telecommunications Act 1998 in Holland, Internet service providers are required, we understand, to pay the costs of providing the IP stream. This may prove more onerous than our regime in some circumstances.
Secondly, we also believe that there are benefits for industry from the use of interception. This is partly because of the potential and social costs of the drugs menace. It has been estimated, for example, that 50 to 70 per cent of the estimated £1.5 billion a year spent on drugs is raised through acquisitive crime. Perhaps more directly, industry may well appreciate the savings in national security terms gleaned from interception. Significant terrorist bombings have caused huge and extensive damage to business, not least in the City. Interception is one of the key weapons in the armoury available to prevent such bombings happening again. Evidently there is a business interest as well as a wider society interest in ensuring sufficient interception capability.
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Finally, our third argument is that to expect industry to pay at least a contribution towards these costs is a decision based on pure economics. Both government and industry should have an interest in minimising the costs involved. We do not believe this efficiency will best be achieved if industry has no financial stake in the matter.
We accept that considerations of the new technologies, the diversification of communication service providers and the emergence of small companies bring new considerations with them. We do not expect that we will approach the smallest and newest companies with a requirement to install a capability. But we shall approach some companies and focus on the nature of the technology that they are operating and on the overall impact on their business plan that the expenditure will have before allocating an appropriate contribution--more details of which we expect to be available to accompany the draft order to be brought before Parliament.
I hope that I have outlined our strategy with sufficient clarity. We shall make some money available; we expect it to cover the vast majority, if not all, of the costs incurred in the three-year period from 2001 when focusing on those companies which are installing an interception capability over IP and for which this expenditure would be significant. With the reassurance that these matters must return to Parliament in secondary legislation before they take effect, I ask that noble Lords will accept this indication of our strategy as sufficient reassurance as to our intentions in respect of the use of Clauses 12 and 13.
I turn to the amendments on the technical advisory board. I am conscious that I have taken some time in making my earlier statement. I trust that noble Lords will continue to bear with me as I respond to the important points that have been made. It is fair to say that there is probably not a great deal of difference between the position of the mover of the amendment and that of the Government. The difference is probably more the means of achieving what is sought.
The issue of a technical advisory or approvals board has been discussed at great length at all stages of the passage of the Bill through both Houses of Parliament. What has come through clearly, and I think very clearly in this debate, is how all sides agree on the importance of there being close dialogue between government and the industry on reaching agreement on what will constitute a reasonable intercept capability. Certainly, we have always stressed our commitment to that dialogue and we have all along maintained that it would make no sense to forge ahead without having industry alongside in tandem. I can see no virtue in that. We know that from our long experience of close co-operation with the public telecommunications operators which, most would agree, has worked very well over many years.
I should like to assure noble Lords that the Government's expressed scepticism about the necessity of setting up such an advisory board on a statutory basis is not due to inertia or any form of "bloody-mindedness" on our part. Indeed, we have
12 Jul 2000 : Column 284 given the matter very serious consideration since it was first proposed. Our most important consideration has always been that the industry itself expressed initial scepticism. Much of the advice we received from industry was that, if there was to be a body at all, it would favour a non-statutory advisory group, much along the lines of the arrangements which we already have in place with telecommunications operators. I can confidently say that industry has not been of one mind--this point has been acknowledged in the debate--on the proposal to set up a statutory body. Indeed, it still does not speak with one voice on the matter. I think that is a fact.
British Telecom has informed us that it sees no good reason to change the existing arrangements, which have always worked perfectly well. That was its comment. The communications company, NTL, has also expressed to us its hostility to any changes to the current practice such as the noble Lord proposes in his amendment. Cable & Wireless has informed my officials of its view that the current structure works well and that it can see no benefit to be gained from making the changes suggested here. Only this morning, my--
Lord Phillips of Sudbury: My Lords, might it not be the case that these huge players have all the access they currently require for bending the ear of government?
Lord Bassam of Brighton: No, my Lords, that is not the point. The point they are making is that the arrangements which they currently operate work perfectly well. The arrangements are perfectly acceptable to them. If noble Lords will bear with me, I shall continue and perhaps offer some further understanding of our position. My officials learned from Vodafone today that it is generally happy, as were the others, with the current arrangements and can see little advantage in instituting a statutory body. That is not to say that a voluntary set of arrangements would not be acceptable to all four of those major players.
It is because of this lack of agreement within the communications service provider industry that, as a sensible compromise, we expressed our willingness to consider involving some kind of existing non-statutory group as an appropriate substitute for what is being proposed. That is in addition to all the procedures we have set out in the Bill to consult with industry and Parliament at each and every step.
The third step is to be the final notice, where we would discuss with each individual service provider what would be the most appropriate form of intercept capability to maintain. That is a detailed discussion with each service provider. It is a more than adequate consultation process between government and industry on what amounts to a reasonable intercept capability. A statutory board could become, as noble Lords recognise, a further bureaucratic layer and an unnecessary addition to what has already been provided for.
As I have previously suggested, we have always worked with the view that consultations with industry, and resulting subsequent requirements to be placed on Internet service providers, would follow a similar process to that which already exists with the telecommunications industry. We are not asking anything here of Internet service providers that has not previously been asked, and continues to be asked to this day, of telecommunications service providers.
There are genuine reasons for our opposition to the setting up of a statutory body. We think that those reasons still hold considerable weight, particularly when some very important parts of that industry expressed directly to us their opposition to a statutory body. I am not suggesting that there are fundamental disagreements on the way in which the Government should consult with industry. I am happy to say that all sides agree that there should be a standing body made up of industry and government representatives to advise the Secretary of State on these matters. There is little disagreement on what the body should do or on the need to set it up quickly so that it can have a meaningful input to any order made under Clause 12.
The only major remaining question is the one which has been raised by virtue of the amendment: whether the body should be statutory or non-statutory. It is not a matter about which we need to become too exercised, but it is clearly one about which the noble Lord, Lord Cope, feels strongly. Indeed, other noble Lords have expressed their strength of view. It would be remiss of us in government not to recognise that very genuine concern. I can say that the Government will consider further whether an advisory body should be set up along the lines suggested by these amendments. I can give that firm commitment.
However, I hope that noble Lords will appreciate that we shall need to consult further with industry because of the sharp divergence of view that I have explained to the House, and particularly in the light of the fact that there is no universal support for a statutory body. I ask noble Lords to allow the Government to reflect further and to return at Third Reading with our considered position. In the event that the Government were to accept that, on balance, the best option was to have a statutory board, I suspect that lack of time would not allow us to do any more than provide an order-making power. However, as I hope that I have made clear, we have not yet reached that position.
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Perhaps I may set out what I am saying to the House at the conclusion of the debate. We recognise the strength of view; we recognise that there is a clear divergence as to whether a non-statutory or a statutory body is the best way of moving forward. There is a shared view about what should be covered in such a board's considerations. That is where the common ground lies. That is the Government's position as we see it.
The Earl of Caithness: My Lords, the noble Lord said that he will take the matter away and give it consideration. Will he also speak to those noble Lords who have taken part in the debate? We have heard some immensely powerful speeches from noble Lords who think that they will be affected. Will the noble Lord come back to the House before Third Reading so that those of us who are interested will know what the position is?
Lord Bassam of Brighton: My Lords, I am more than happy to continue that process of consultation with all noble Lords who have contributed to the debate. It is important that I do so in order that we can better formulate our thinking. We shall need to have further discussions, particularly with those companies that have offered us their view that they do not favour the statutory route. They may well require some persuasion. We shall reflect on their comments as well. But we shall consult in detail with the industry in its entirety because we believe that to be the right way forward. We have always made that plain.
Lord Cope of Berkeley: My Lords, in response to the noble Earl, Lord Erroll, the Minister said that he does not always understand these matters. From time to time we have all experienced that reaction. The noble Lord went on to discuss costs. We shall return to that subject later in our proceedings when we reach Amendment No. 18. Therefore, I shall not at this stage say much in detail on that matter. I simply reflect on the fact that the Government have not revised their estimate from £20 million even though others have estimated the cost involved in the first few years to be as high as £650 million. The figure of £20 million was the only hard thing about costs that the Minister had to say. He said a good many soothing words but each was covered by saving phrases such as "We will consider without commitment" and so on. Those kinds of saving phrases are insisted on at intervals by Her Majesty's Treasury, as some of us know only too well when we have been in the same position as the Minister trying to explain such matters away.
I turn to the amendment itself, which deals with the question of the advisory board. The Minister rightly said that the matter had been discussed a great deal, not only in our previous debates at Second Reading and in Committee but also at various stages of the Bill's passage through another place. Yet, at the Report stage in this House, the Minister is saying, "Give us time to reflect further on this matter. We need to think about it. We will consider whether there should be a statutory board or a non-statutory board".
The Minister mentioned some large telephone operators which were not in favour of a statutory board. With respect, I mentioned large numbers of ISPs and those directly involved. They are very much in favour and have confirmed that to me in the past few days. The Government's attitude seems to be, "Just hang on. We will fob you off one more time". I do not feel that that is sufficient. I feel that we should ensure that the Minister and the Government consider this issue carefully by pressing the amendment.
On Question, Whether the said amendment (No. 14) shall be agreed to?
Resolved in the affirmative, and amendment agreed to accordingly.
Lord Cope of Berkeley moved Amendment No. 15:
7.3 p.m.
Page 14, line 35, at end insert--
On Question, amendment agreed to.
On Question, amendment agreed to.
("( ) the Technical Advisory Board,").
Page 15, line 3, at end insert ("; and
(c) for the purpose of facilitating the carrying out of any functions in relation to this Chapter of the Interception of Communications Commissioner;
but before determining for the purposes of the making of any order, or the imposition of any obligation, under this section what arrangements he considers necessary for the purpose mentioned in paragraph (c) the Secretary of State shall consult that Commissioner").
After Clause 12, insert the following new clause--
(" . There shall be a Technical Advisory Board consisting of--
(a) up to six members appointed by the Secretary of State from among persons affected by section 12 of this Act, and
(b) up to six members appointed by the Secretary of State representative of persons specified in section 6(2).").
Page 15, line 12, leave out ("may, if he thinks fit,") and insert ("shall").
The noble Viscount said: My Lords, I beg to move Amendment No. 18 and speak at the same time to Amendments Nos. 19 and 20. These are simple amendments to Clause 13, in which the Secretary of State is empowered to make payments. In two places we wish to replace the word "may" with "shall" and the word "appropriate" with "fair".
"could offer some assurance to Members of the Committee that the allocation of costs would be addressed very clearly in that order".--[Official Report, 19/6/00; col. 59.]
He was referring specifically to the order to be made under Clause 12. He went on to say, most helpfully, that he would consult in detail on how it would work and that he would bring forward the relevant legislation.
The Minister has already put the Government's view on costs in our previous debate, which was helpful. I shall comment on it only briefly. The Minister said that not all ISPs will have black boxes. Although that may be true, one of the difficulties we face is that the Government seem not yet to know which ISPs will have black boxes and which will not. It is certainly the case that the industry does not have a clue. Indeed, the industry does not even understand how this is going to work unless a universal system is put in place. If that is not done, businesses will simply bypass the system.
We know, after holding discussions with ISPs, that they employ different systems; some are linked, some are compatible and some are not compatible. This area is different from that of telephone systems and exchanges which for a long time have contained equipment for interception. However, it has always been possible to fit such equipment at source; namely, at the exchange. The same does not apply to the Internet industry.
Internet service providers are diverse. Some companies are large while others are quite small. The Minister stated that, in the case of small ISPs, the Government would try to be more generous. However, while we acknowledge those kind words, we must return to the point that we have only the Government's own estimate of costs at £20 million spread over three years. That estimate has not been in any way agreed by the industry. The noble Lord, Lord Stevenson of Coddenham, who is the chairman of a large company involved in this technology, remarked that, "Nobody knows what it will cost". I think he is right. It is all well and good for the Government to declare that £20 million will be made available over three years, but one knows exactly how government systems work. The money will run out after the first year. A company will come along after that and be told by the Government, "We are very sorry. This is what we promised and we cannot go back to the Treasury".
We know that costs will be incurred by the industry to maintain and upgrade the equipment. Clause 13 contains no "right of appeal" against those costs unless one opts for judicial review. Noble Lords know how expensive and time-consuming is that process. The powers contained in Clause 13 have been described by some as a form of "Internet tax". The Government might consider that a little unfair, but that is how the provisions are perceived.
If we are to satisfy some of the concerns expressed by the industry, we must look again at Clause 13 where it states:
12 Jul 2000 : Column 292 something that is to be found in primary legislation. Therefore, the amendments to which I have spoken are necessary for the purposes of the Bill. I beg to move.
Lord Phillips of Sudbury: My Lords, I support entirely the words of the noble Viscount. These amendments are absolutely minimalist. To contend with the immense underlying unease about the sharing of cost, if it be shared, these amendments could not be more modest. If the Government are not prepared to accept these amendments, we shall be on a collision course, not least because there is no requirement under the clause to lay any kind of order. In any event, the amendments do not impose on the Secretary of State any specific requirement but merely tighten up to a significant, but not excessive, degree the objectivity of the judgment that he or she must bring to bear in deciding what grants to make under the clause.
I shall be grateful if in his response the Minister can confirm my impression that the words of the noble Lord, Lord Bassam, a few minutes ago were intended to reassure the House that the recommendations of the Smith report with regard to these wonderful black boxes--namely, that the Government would pay for the design and software development--have been taken on board by the Government. The noble Lord did not make specific reference to that, and I should be grateful if he would deal with the matter in his response. Plainly, that is germane to the burden which business may be called on to shoulder.
Lord Phillips of Sudbury: My Lords, I am delighted to confirm entirely what the noble Lord says. That is another reason why these minimalist amendments should be accepted without demur.
Viscount Goschen: My Lords, I agree with the noble Lord, Lord Phillips of Sudbury, that if the Government are not prepared to accept these amendments we shall have real difficulties. These amendments still provide considerable scope for interpretation. The word "fair" cannot be pinned down and defined very well. If the Minister uses that as his only defence, I suggest that it is a self-defeating argument which will encourage my noble friends on the Opposition Front Bench to return with much stronger amendments than the ones we are considering tonight.
I welcome the initiative of the Government in trying to inject additional clarity into their approach to funding the equipment, the running costs and the whole process of interception. It was helpful that the
I am at a loss to understand the noble Lord's argument about the number of ISPs to which these provisions will apply. The noble Lord approaches the matter in a vague manner and makes the generic statement that we should not worry because it will involve only a few, without saying which ones it is likely to be. He says that perhaps it is just a sample. I do not see how the Minister can make such vague statements and yet come up with a specific funding proposal of £20 million. If the provision is to apply to only a small percentage of ISPs, £20 million may or may not represent a significant percentage of the cost. The provision may apply to many more ISPs than the noble Lord indicates. The Minister puts forward no evidence at all to justify his stab (if I may so describe it) at the number of ISPs which will be required to install the equipment. We are groping in the dark. The noble Lord simply lights a very small candle and tells us not to worry because it will show us the way. My noble friend's amendments are modest. The amendments inject a greater degree of clarity about the burden on the Secretary of State and I wholeheartedly support them.
Lord Lucas: My Lords, the noble Lord, Lord Bassam, made a very good point in his speech on the previous group of amendments. He said that it was important that both the ISPs and the Government shared the financial responsibility for the decisions that would be taken. I believe that that is what we should try to achieve. Clearly, the ISPs must bear part of the cost. They have considerable ability to keep down the costs and need an incentive to do so. Anyway, if they did not have to contribute, they would merely trot off to any good defence contractor and find out how to turn costs into high profits. It is entirely right that the ISPs should make a fair contribution.
Similarly, the Government must be bound by financial responsibility and should not be able to cast unquantifiable costs on to the ISPs and bear none of it themselves. If the cost turns out to be £300 million, the Government must go for budgetary approval for a sum that bears a proper relationship to that cost. A sensible proportion that comes to mind is half. Therefore, if it is worth £150 million to the Government, perhaps they are right to ask for a similar
Lord Howell of Guildford: My Lords, I simply ask: how can the Government quantify these costs when they cannot define the scope of the Bill, as we have already heard in debate this evening and, I am sure, also in Committee? It is not clear to what extent the provisions are to be applied and how they will work, given the fact that a great many service providers and operations are located, at least partially, overseas. One thinks of the simple operation of transferring information and messages from local files to remote sites through the appropriate transfer protocol. In many cases that is done through remote sites which are deliberately not sited in the UK either because the technology has originated in America or because of low cost high quality provision elsewhere. India, for example, already provides remote site storage for a vast range of information and collects e-mails and website transfers through the necessary protocols on a colossal scale. Where will it come into the equation? What part of its operation will be addressed by this Bill? What costs will it have to pay?
Unless we can begin to answer these questions the debate about costs is in the area of fantasy. I do not see how this House, let alone the general public or industry, can be asked to plunge ahead with legislative provisions which are so stratospherically vague and unrelated to any definition of scope which could seriously give us a basis on which to compute the cost of this operation.
12 Jul 2000 : Column 295 amendments in any way, but make the Bill much better and they will raise much greater confidence in industry.
Lord Bassam of Brighton: My Lords, this debate is a reflection on the previous one and the comments that I made about costs. I accept that that is right. I made a statement on government policy and the way in which we believe we should develop our thinking in this area. The issue of costs revolves in part around a sense of trust. Perhaps it is because there has been a hyping of the debate that a view is emerging in some quarters that £20 million will be far too small a sum of money to cover the set up costs which we have made plain we shall cover. We do not see the exercise as being as extensive as some have imagined. It is that imagining that troubles me most in this debate.
I shall go over some of the points that have been made during the course of this discussion as briefly as I can. The noble Viscount, Lord Astor, asked me to correct something that was said during Committee stage. I gave that correction during an earlier debate, but I am not sure whether the noble Viscount picked it up. If it helps the House I shall repeat it for the record. It concerns the allocation of costs and how they will be dealt with in Clause 12.
I am sorry to disappoint the noble Viscount as regards Amendment No. 18, which requires that the Secretary of State "shall" make payments to communication service providers rather than "may". As regards Clause 12, we discussed at some length the issue of costs which may be incurred by industry and how the Government intend to alleviate them. I do not wish to detain the House by repeating that debate except to say that we have given our commitment to provide the sum of £20 million over the next three years to help Internet service providers who are required to maintain such a capability.
Noble Lords will be aware that the Government have previously amended the Bill to set out explicitly our commitment to pay the marginal costs incurred by communications service providers as regards processing each interception warrant. These marginal costs include the cost of providing staff, the overheads incurred and also the cost of transporting the intercept product to the intercepting agency. All these costs are currently, and will continue to be, met by the Government in addition to the extra £20 million to which I have just referred. I do not accept that it is now necessary to go any further than the commitments which have been given. I trust that the noble Viscount will feel able to withdraw Amendment No. 18.
Viscount Astor: My Lords, I am grateful to the Minister for his agreement to Amendments Nos. 19 and 20. I am also grateful for what he said about the order-making power in Clause 12, which, as I believe we now both agree, will not refer to costs, but that at the time the Secretary of State will explain it. That is helpful, but it makes it more important that we get Clause 13 right.
The Minister gave his commitment to £20 million and I accept that. But it is his commitment, and not one which is in the Bill. It is something separate. If the noble Lord accepts Amendments Nos. 19 and 20 the effect will be that the Secretary of State may, if he sees fit, make a payment and if he does so it has to be fair. It is not said that the Minister has to accept it because unless we include the word "shall" he does not have to make the payment at all.
On Question, Whether the said amendment (No. 18) shall be agreed to?
Their Lordships divided: Contents, 131; Not-Contents, 119.
Resolved in the affirmative, and amendment agreed to accordingly.
Lord Bach: My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage begin again not before 8.40 p.m.
Consideration of amendments on Report resumed on Clause 13.
7.38 p.m.
8.41 p.m.
Page 15, line 16, leave out ("an appropriate") and insert ("a fair").
The noble Viscount said: My Lords, this amendment and Amendment No. 20 were grouped with Amendment No. 18 with which, as the Minister may remember, we managed to scrape a lucky vote. Therefore, I beg to move.
On Question, amendment agreed to.
Viscount Astor moved Amendment No. 20:
[Amendment No. 20A not moved.]
Clause 14 [General safeguards]:
Lord Bach moved Amendment No. 21:
("( ) The arrangements for the time being in force under this section for securing that the requirements of subsection (2) are satisfied in relation to the intercepted material or any related communications data must include such arrangements as the Secretary of State considers necessary for securing that every copy of the material or data that is made is stored, for so long as it is retained, in a secure manner.").
We have reflected on the helpful points that the noble Lord made, and now put forward this amendment in the hope that an explicit requirement to store intercepted material and data securely will reassure those who are concerned that it might otherwise not be so stored. I should add that the storage and handling of intercepted material already involves the highest levels of physical, technical and personnel security. None the less, I hope that this amendment will be welcomed by the noble Lord. I beg to move.
Lord Phillips of Sudbury: My Lords, I am grateful to the noble Lord for what he said and am most content with the outcome of our discussions.
Viscount Astor: My Lords, we, too, welcome the amendment and thank the noble Lord for introducing it.
On Question, amendment agreed to.
12 Jul 2000 : Column 318
The amendment before the House tonight seeks simply to insert the words, "in an external communication" into Clause 15, which, itself, provides extra safeguards in the case of certificated warrants under Clause 8. The latter allow--and allow only--general trawling for communications data of different kinds for external communications. I suspect that we are dealing here with the central passage of the Bill as regards public concerns. The extent to which any government and agencies serving under the state can utilise the powers under this Bill, especially vis-a-vis warrants under Clause 5 onwards, continues to give a great deal of angst.
I should point out at once that this amendment is still in the nature of a probing amendment. I would apologise for that were it not for the fact that we are all grappling and groping to some extent with some of the more complex parts of this measure. Indeed, when taken in conjunction with all the other clauses to which it relates, I suggest that there is no more complex clause than Clause 15.
Certificated warrants, which I call "trawl warrants" are to be applied only, as I said, to external communications. The reason being that one must differentiate between the use of targeted interception warrants for domestic policing--analogous one might think to letter opening--and the use of trawling or mass-surveillance warrants used for intelligence and national security purposes which, for some, has Orwellian implications.
Depending on the nature of the communication link intercepted, it will be extraordinarily difficult, if not impossible, to capture simply external communications. If one takes, for example, a trunk under-sea cable or microwave beam that physically leaves the United Kingdom and is intercepted somewhere under the ocean, there is no way that one can catch in one's net external communications only; indeed, we would say that one is bound--or almost bound--to catch with it internal communications that are supposed to be proof against the trawling procedure under all circumstances. That is the basis upon which the anxiety persists. As I said, the amendment is a probing one. After hearing the Minister's response, it may be necessary to have further meetings to explore matters further.
So we are talking about lawfully examining internal communications "captured" by a trawl of this kind, which will produce mixed-up, bulk information. The noble and learned Lord, Lord Lloyd, referred to the problem--it is not a new one--in his first Interception Commissioner's report. He sanctioned a non-statutory innovation that he considered would lawfully permit, first, the examination of that inadvertently captured internal material; and, secondly, the trawling for purposes broader than anti-terrorism. Anti-terrorism trawls are the one exception to the rule that there shall not be trawling for internal communications. In that second category one would be trawling for purposes which include national security, serious crime and economic well-being, as listed in the Bill. The noble and learned Lord, Lord Lloyd, christened that mechanism an "overlapping
12 Jul 2000 : Column 319 warrant", by which he meant an ordinary, non-certificated warrant which names the addresses or premises targeted with the interception--which is what is required--and allows the interception of any communications, internal or external, from those addresses.
There appears, however, to be what might be called a cart before the horse problem concerning the broader trawling. The question is: how can an overlapping warrant specify addresses, as are required by Clause 8 of the Bill, until those addresses have been identified by the broad trawl which is prevented by the Bill? That, of course, creates the paradox that you have to do that which is not permitted in order to do that which may be permitted. That is an unresolved problem whereby the practice of using these overlapping warrants is utilised.
The construction and meaning of Clause 15(3) in particular is, I suggest, still obscure to the House, certainly to these Benches. It seems to create a wholly new kind of certificate which one might call an "override certificate" that can be attached--admittedly for a three-month period only--to a certificated warrant; that is to say, one certificated under Clause 8. The effect of such an override certificate is in practice to sanction a trawl through bulk captured material obtained through a Clause 8 certificated warrant allowing search for an entity--the relevant words in the Bill are "referable to"--or a person inside the United Kingdom for the purposes of national security, serious crime, economic well-being and anti-terrorism.
I refer to future overlapping warrant procedures. It appears from the letter of the noble Lord, Lord Bassam, that they are to continue. The letter states:
However, would it be correct to interpret what the Minister wrote and what is in the Bill as the following? If a target of the security or intelligence services is using a foreign Internet service provider, that Internet service provider, being foreign, cannot be served with an interception warrant but the target's communications within the United Kingdom may still be picked up by GCHQ bulk trawling, for example, on the under sea cable. In that case, an e-mail sent by the target to a person within the United Kingdom would still be an internal communication, even though routed via a foreign ISP. The Minister made it clear in his letter that a UK-to-UK transmission via foreign parts was none the less still an internal communication. If I am correct, that would tend to fall outside the scope of a Clause 8(4) warrant which is limited to external communications. That overlapping warrant would still be required in such a case. I apologise if this is complex and difficult to follow but I am afraid that is the nature of the case.
Even if that is the case, several problems remain. First, would it not be better to put overlapping warrants on a clear statutory basis--the Minister's
12 Jul 2000 : Column 320 letter makes it clear that those are to continue--and legitimise them on the face of the Bill? The Government may argue that, assuming overlapping warrants are lawful, there is no extension of the purposes for which the trawling of internal communications may be effectively accomplished under the Clause 15(3) procedure. However, we believe that acceptance of Clause 15(3) unamended creates statute law which broadens the allowable purposes within the Bill--which are confined to anti-terrorism--for internal trawling.
It is possible that overlapping warrants can lawfully be used for some kinds of internal trawling but not others, depending on interpretations of the key words, "address", "premises", "factors" and "referable to". All this is totally opaque at present. If Clause 15(3) represents either a practical or legal extension of powers, in future it will be and remain solely for the Interceptions Communications Commissioner to ensure fair play.
I believe that these problems are compounded by the intention confirmed in the letter of the noble Lord, Lord Bassam, that in future under the Bill certificated warrants may be served on Internet service providers rather than just on telephone companies. I should like to know whether that is correct. If bulk collection from Internet service providers' networks is undertaken, the captured traffic will be a completely mixed trawl of internal and external communications which it will be possible to separate only by reading the whole catch.
If the Government do not wish to accept the amendment, which seeks to put plainly on the face of the Bill limits and safeguards--I anticipate that the Government will face difficulties in accepting it--is there any way in which the anxieties of firms, individuals and charities can be assuaged in terms of the oversight of these mixed catches of internal and external communications? The Minister may say that the interceptions commissioner has the power and duty to ensure that there is fair play in that regard. However, the anxiety at the extent to which the Bill constitutes a Trojan horse into confidential information which should remain confidential is at its most acute over that measure. We see the problem that in a trawl you cannot select only Dover sole. However, on the other hand, how do you guard against the information which you are not seeking to collect being scrutinised by those who ought not to scrutinise it and, worse still, utilised for purposes wholly outside the ambit and intention of this part of the Bill? I apologise for my discursive and, I suspect, unfollowable attempt to explain the amendment. However, I have done the best that I can. I beg to move.
Lord Cope of Berkeley: My Lords, the explanation of the amendment was slightly lengthy but, I think, absolutely necessary. It is a hideously complicated provision. It is difficult to understand how we got into the position we are now in, let alone how it is proposed to develop it in the future and in particular through this Bill.
My underlying assumption is that the distinction between internal and external communications goes back to the days when people were primarily concerned about spying. It was quite all right then to have a powerful scrutiny of external communications because they might contain spying items, whereas with internal communications we were spying on our own people, which was not done--or, at least, done to a much lesser degree. That subsequently became extended so that we could spy on our own people for counter-terrorist purposes because we are all against terrorists and terrorism is a growing threat. I do not mean that idly--it is quite true--but one can see how, historically, we have got to the position where external communications can be much more thoroughly scrutinised, and communications being examined for anti-terrorist purposes can be much more thoroughly scrutinised, than ordinary internal communications. There is a considerable acceptance that this is the rationale behind it.
But now, of course, we live in a different age--an age when it is possible to trawl over vast numbers of communications exceptionally easily for key words, for addresses, for people's names and so on. The power of computers is basically such that it enables us to do this. There must be a great temptation, a great desire, on the part of those whose job it is to catch criminals--whom we all support--to use these powerful mechanisms for the purposes we all want to see.
But, at the same time, we do not want to reach a position where people are being monitored all the time. It is 16 years since 1984; the book of that name was obviously written a good while before that, but it gives an insight as to how things might be if governments are allowed to monitor our lives too much.
The first question arising out of these provisions, and the one to which the amendment draws attention, is whether it is regarded by the Home Office as lawful to use overlapping warrants. It seems to be accepted that they have no statutory basis; on the other hand, they seem to have an excellent legal pedigree in the form of, among others, the noble and learned Lord, Lord Lloyd. I assume that the answer is, yes, they are regarded as lawful at the moment.
But, on the face of it, as the noble Lord, Lord Phillips, said, this part of the Bill represents an extension of the powers beyond what they are at the moment, either statutorily or non-statutorily. Is that the Government's intention? Are the Government attempting by the phrases used in the Bill to extend the powers beyond what they are now and not only to extend them to different forms of communications--to e-mail and so on--but to extend them in nature beyond what they are now? What is the intention of this?
I do not think that anyone would object to the powers being extended from what they are now--even if it is legally a bit uncertain--to cover different forms of communications such as e-mail and so on, but we would be concerned at a different level if the Government were setting out to extend the powers
12 Jul 2000 : Column 322 beyond those currently available for telephones and more conventional means of communications. That is the importance of this.
I am not entirely convinced that the amendment is necessary. The Bill is so complicated that it is difficult to be sure whether trawling is intended by the Bill to be confined to the same things that it is confined to now for telephones and so on. If not, at the very least we should be told. We should then give consideration to whether that is what we want to do and whether Parliament is prepared to give that authorisation to the agencies which do such sterling work on our behalf.
Lord Lucas: My Lords, I have enjoyed listening to the contributions from the Opposition Front Benches. Both noble Lords seemed to be striving extremely hard to give the Government the benefit of the doubt and to find some way in which what is written plainly and clearly in the Bill should not be true. It is absolutely obvious what is in the Bill--at least it is to me--and that is, yes, trawling becomes legal. The Home Secretary has to renew the warrant every three months, but he can trawl on grounds of economic well-being and serious crime, as well as terrorism, to any extent that he wishes.
I do not think that this particular Home Secretary is going to go after a police state in a big way, but we can be certain that we are going to go after the people who start the riots in the City and the football hooligans. That is exactly what the clause permits. It is absolutely obvious that the economic well-being of the UK is affected by both groups. We have lost the ability to stage a major football tournament because of football hooliganism, and the economic well-being of the UK is affected. The reputation of the City suffers from these annual riots, and the economic well-being of the UK is affected. Under those conditions the Secretary of State can go trawling for any group of people that he chooses as long as such a group is reasonably rationally coherent--and certainly the people indulging in both those activities must come under that category. Under this Bill we have the ability to trawl in any way at all as long as it is referable to that kind of thing.
As we understand it, the amendment--I will be frank about this--would render unworkable the arrangements for interception and selection of external communications. It is just not possible to ensure that only external communications are intercepted. That is because modern communications are often routed in ways that are not all intuitively obvious. Noble Lords who have contributed to the debate understand that. An internal communication--say, a message from London to Birmingham--may be handled on its journey by Internet service providers in, perhaps, two different countries outside the United Kingdom. We understand that. The communication might therefore be found on a link between those two foreign countries. Such a link should clearly be treated as external, yet it would contain at least this one internal communication. There is no way of filtering that out without intercepting the whole link, including the internal communication.
Even after interception, it may not be practicably possible to guarantee to filter out all internal messages. Messages may well be split into separate parts which are sent by different routes. Only some of these will contain the originator and the intended final recipient. Without this information it will not be possible to distinguish internal messages from external. In some cases it may not be possible even if this information is available. For example, a message between two foreign registered mobile phones, if both happened to be roaming in the UK, would be an internal communication, but there would be nothing in the message to indicate that.
It is still the intention that Clause 8(4) warrants should be aimed at external communications. Clause 8(5) limits such a warrant to authorising the interception of external communications together with whatever other conduct is necessary to achieve that external interception. Whenever such a warrant is signed, the Secretary of State must be convinced that the conduct it will authorise as a whole is proportionate--my favourite word--to the objects to be achieved. His decision to sign will be overseen by the interception of communications commissioner.
The next layer of protection is the certificate. Anything that is not within the terms of the certificate may be intercepted but cannot be read, looked at or listened to by any person. Beyond that are the safeguards set out in subsection (2) of Clause 15. Except in the special circumstances set out in later subsections, or if there is an "overlapping" Clause 8(1) warrant, selection may not use factors which are referable to an individual known to be for the time being in the British Islands.
Amendment No. 23 would extend the prohibition on selection by factors referable to individuals in the British Islands to cover also premises in the British
12 Jul 2000 : Column 324 Islands. It would occasionally have perverse consequences. For example, let us suppose that a foreign terrorist group was planning to blow up a prominent London building--say, the House of Lords. In the absence of any other leads, the agencies would no doubt be searching for any messages mentioning the House of Lords. But that would clearly be a selection factor referable to premises in the British Islands. It does not seem right for that, which would not involve intercepting any communications to or from the House, to need special authority.
As noble Lords can judge from that response, it is a very complex matter. Other points were raised in the debate. The noble Lord, Lord Cope, asked whether the intention is to extend the powers. The simple answer is: from existing new communications, yes, but beyond that, certainly not, no. I hope that clarifies that point. The noble Lord, Lord Phillips, sought some reassurance for himself, and the public perhaps, about the commissioner's role. I can say that the commissioner has the responsibilities to which the noble Lord referred. That much is clear. The commissioner will also be anxious to reassure the public that his oversight of the matter has been both effective and thorough. He has to discharge his duties in those terms.
We would be very concerned if these amendments were passed. As I said at the outset, they would render the arrangements unworkable both for interception and the selection of external communications. They would provide a very difficult situation for those agencies that need to undertake that work. I urge noble Lords not to press their amendments. The noble Lord, Lord Phillips, said that he would perhaps like to have further discussions on these matters. I am certainly happy to facilitate that outside the Chamber. We view these matters very seriously indeed.
Lord Phillips of Sudbury: My Lords, I listened with great interest, as I am sure did other noble Lords, to what the Minister had to say. I accept that I cannot fairly expect the issues raised in the debate to be answered here and now in all particulars. I welcome the noble Lord's agreement to discussions outside the Chamber. In all the circumstances, it would be best to proceed by that route. I am therefore happy to withdraw the amendment.
Amendment, by leave, withdrawn.
("or otherwise than according to a factor which is referable to premises in the British Islands").
[Amendment No. 23 not moved.]
12 Jul 2000 : Column 325
Lord Cope of Berkeley moved Amendment No. 24:
According to the advice I have from the memorandum, there seems to be an absence of protection for privilege. Clauses 16 and 17 do not address that issue. They appear to be derived from similar provisions in the Interception of Communications Act 1985. Even the Law Reform Committee of the Bar Council described them as,
12 Jul 2000 : Column 326
Information obtained by surreptitious means should not receive less protection than that which the original communication was entitled to. That is what led the committee of the Bar Council to suggest to me and to other noble Lords the insertion of the amendment into the Bill. I shall be interested to hear the Minister's response to this point. It was raised with me only recently. I nevertheless took the precaution of giving at least an indication to the Home Office of the seriousness of the matter, as it comes from an important source. I beg to move.
Lord Grabiner: My Lords, the noble Lord, Lord Cope, understates his talents. He says that he is not a lawyer. However, I have always viewed the noble Lord as something of a closet lawyer. His legal talents are certainly evident on almost every occasion that he stands at the Dispatch Box.
I do not think that the noble Lord said anything with which essentially I would disagree. The question is whether it is necessary to utilise this amendment in order to deal with the problem. The short point is, in essence, whether legal professional privilege would be implicit as a matter of common law. If the answer is that it would be, it would not be necessary to incorporate an express provision in the Bill to cover the problem. If, on the other hand, that is not the position, I would respectfully agree that it would be necessary to introduce an express clause to that effect.
This measure, perhaps more than most, will be examined closely by foreign firms and foreign lawyers who may not be fully acquainted with the extent and grasp of our common law. I agree with the noble Lord, Lord Grabiner, that this needs to be looked at carefully. However, when the Law Society, the Bar Council and the professional body for Scotland all sing the same tune, there may be something in it. Indeed, a
Lord Bach: My Lords, in Committee we debated at some length the justification for Clause 16, which keeps intercepted material out of legal proceedings. The noble Lord's amendment appears to bolster the effect of Clause 16 by saying that no intercepted communication is rendered admissible if the original communication would not have been admissible. We agree with the sentiment, but the Government hold the view that this amendment is unnecessary.
First, nothing in Chapter I renders anything admissible in evidence. Except for Clauses 16 and 17, the Bill is not about evidence. Furthermore, Clauses 16 and 17 make interception inadmissible. Thus, anything that would otherwise be admissible remains admissible under the Bill--except intercept product and anything which would otherwise be inadmissible remains inadmissible under the Bill. For example, the Bill does not change the rules about hearsay, corroboration or similar fact evidence. However, I do not think that anyone is suggesting that that fact should be placed on the face of the Bill.
Lord Cope of Berkeley: My Lords, the noble Lord, Lord Grabiner, described me as a closet lawyer. I am not quite sure how to take it, but, coming as it does from such a distinguished lawyer, I regard it as an intended compliment. I tried to make clear in moving the amendment that in this particular instance I was merely a mouthpiece for lawyers and altogether a lower form of life, perhaps the noble Lord would believe, than even a closet lawyer.
I pay careful attention to the speeches of both the noble Lord, Lord Grabiner, and the Minister, in particular their observations on the common law. I have the highest, if distant, respect for the common law and never cease to be amazed by it. I am again amazed this evening that the common law can extend to a Bill dealing with such a modern subject as this. Perhaps one should not be surprised by that. The Minister also stated--I paraphrase his response--that nothing in the Bill said that such material would be admissible which, by a series of double negatives, meant that the common law applied.
Clause 20 [Lawful acquisition and disclosure of communications data]:
12 Jul 2000 : Column 329
I have two sources of puzzlement in this confluence of the code and the Bill. First, I am extremely puzzled as to how an officer will be able to do anything which an ISP cannot. Are we breeding in secret a new breed of electronic policemen? How is it envisaged that such a thing will be possible?
The second aspect I am concerned with is that the confluence of Clauses 20 and 21 would be that if an officer was sent out to collect such-and-such communication data, it would seem to allow him to indulge in any conduct which he felt was reasonable in order to obtain it. He might go to "James Bond" lengths of breaking in and burgling or whatever might amuse him. But he would be exempt from prosecution. His actions would be made legal by the terms of Clause 20. I suspect that I am failing to understand how the code and the Bill work together on this particular aspect. I look to the Minister for enlightenment, but I shall be prepared to accept that it might arrive tomorrow. I beg to move.
Viscount Astor: My Lords, I was most intrigued by my noble friend's introduction of his amendment. As far as I was concerned, at least half of his speech was heavily encrypted. No doubt the Minister will be able to find the key, decrypt it and give an answer.
Lord Bassam of Brighton: My Lords, the amendment was so heavily encrypted that the Minister is entirely puzzled. We had looked very closely at the noble Lord's amendment and decided that the addition of the word "expressly" would have no impact or effect at all. Therefore, the attempt of the noble Lord, Lord Lucas, to probe the confluence of meanings in Clauses 20 and 21 had entirely escaped us.
The noble Lord was generous enough to say that perhaps we could provide him with an answer tomorrow. That is how I would like to leave it. On those terms, I ask him to withdraw his amendment. Perhaps in future he could be a little clearer as to what he wants to probe and where. We shall be more than happy to oblige.
Lord Lucas: My Lords, this noble Lord is always very happy to be clear about what he is after, but it generally takes a little more time than he had on this occasion. I apologise to the Minister and to his officials for having caused them to hunt around needlessly for an explanation which would have eluded them in any case. I shall pass to the officials my notes on this amendment and perhaps we can reach some agreement at another time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Page 23, line 42, leave out ("address or other") and insert ("traffic").
The noble Lord said: My Lords, this amendment and the others grouped with it were originally part of the first set of amendments under the original grouping. I have spoken to them in what I said during that debate. I beg to move.
Lord Cope of Berkeley: My Lords, I agree with the Minister that the earlier debate on the definition of "traffic data" covers the point in the amendments. The wording is remarkably similar to the first few amendments we discussed today. By inserting the provisions in Chapter II, they do not have the same effect as in Chapter I. Indeed, in some senses it is the reverse effect. Nevertheless, it is a useful introduction into the Bill of the distinction between "traffic data" and "communications data" even though these amendments mix up the two. It is a useful change to the Bill which I and others appreciate.
Lord Lucas: My Lords, I did not ask the Minister a follow-up question on the extent to which the web will be caught as traffic data. I understood the noble Lord to say that the query will end at the apparatus which contains within it the information on the web page which is sought. The traffic data will contain the identity of a box. It may be quite small, stored in racks of similar boxes in the premises of an ISP. The communications data will contain the physical address of that box. One will be able to deduce the premises the box occupies. From a knowledge of the web, one may be able to deduce either that that website occupies that box exclusively for its own use, that it is part of a much larger website, or that it is a box which stores a number of similar websites. It can be difficult to specify what is in that box. We are talking about an individual box, not simply the premises of an ISP. I shall not know simply that the communications data have gone into, for example, Demon's headquarters; I shall know which box we have accessed.
With regard to my next amendment, it would help me if the Minister would tell me the level of detail regarding the identity of the end point of traffic data under the definition. Given the way ISPs operate, I am unable to satisfy myself as to how it will operate in practice.
On Question, amendment agreed to.
12 Jul 2000 : Column 331
Lord Bassam of Brighton moved Amendment No. 28:
("(6A) In this section "traffic data", in relation to any communication, means--
(a) any data identifying, or purporting to identify, any person, apparatus or location to or from which the communication is or may be transmitted,
(b) any data identifying or selecting, or purporting to identify or select, apparatus through which, or by means of which, the communication is or may be transmitted,
(c) any data comprising signals for the actuation of apparatus used for the purposes of a telecommunication system for effecting (in whole or in part) the transmission of any communication, and
(d) any data identifying the data or other data as data comprised in or attached to a particular communication,
but that expression includes data identifying a computer file or computer program access to which is obtained, or which is run, by means of the communication to the extent only that the file or program is identified by reference to the apparatus in which it is stored.").
[Amendment No. 29, as an amendment to Amendment No. 28, not moved.]
On Question, Amendment No. 28 agreed to.
Lord Lucas moved Amendment No. 30:
("6A) Where the communications data in whole or in part comprises data as defined in section 20(4)(a) or (b), the designated person shall first obtain a certificate from--
(a) any judge of the Crown Court or the High Court of Justiciary;
(b) any sheriff;
(c) any justice of the peace;
(d) any resident magistrate in Northern Ireland; or
(e) any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge of the Crown Court or of a justice of the peace,
stating that access to the communications data is necessary and proportionate having regard to the sworn statement of the designated person as to the circumstances of the matter.
(6B) If the designated person reasonably believes that the special circumstances of the case are such that obtaining a certificate under subsection (6A) would cause an unacceptable delay to the issuing of a notice or authorisation under this section, the designated person may issue such notice or authorisation without obtaining a certificate but must then make a prompt report to the Interception of Communications Commissioner as to the circumstances of the matter.").
We have improved the limit as regards a person's wanderings on the web, but tracking down to an individual's box gives someone a good deal of
12 Jul 2000 : Column 332 information. These days, a box might contain only 20 or 30 gigabytes of hard disk. That can easily be used in a reasonably complicated website. People at the low end, such as me, share servers, but the next step up, which comes quickly, is to co-locate. You put your own server in an ISP's premises, which will usually involve the box being identifiable. It will be possible to know that someone has visited a site and, given that a site is virtually homogeneous, it will be possible to know what someone has done. You will not be able to track a person inside the shop but you will be able to tell which shops in the street he has entered.
That level of data about someone's life requires a reasonable level of protection. The amendment does not deal with the ordinary data, the reverse directory or the mass volume of requests for communications data which involve identifying the owner of a telephone number, or a website or an individual. It deals with a smaller number of requests for detailed information about a person. Given the increasing ability to identify what a person is up to from the data which will be available under this heading, we should look at a level of authorisation that goes beyond that of the average police superintendent because we shall have a multiplicity of agencies which can look at communications data. Given that we are not dealing with a high volume of cases, I have suggested that the standard recipe of a magistrate's warrant should be required.
I am happy to listen to any suggestions put forward by other noble Lords or the Government. My basic point is that we should apply a higher test to such data than is applied to someone's telephone number. The data are wider and more private and personal than the data to which we are used to giving our average policeman access. We ought to take care of the citizens' liberty. I beg to move.
Lord Phillips of Sudbury: My Lords, I want to identify myself with what has been said by the noble Lord, Lord Lucas. Unless the Government have a clear response to the issues, there is much to justify the amendment.
Viscount Astor: My Lords, I associate myself with the comments of the noble Lord, Lord Phillips. My noble friend's amendment raises an important issue and I look forward to hearing the Government's response.
Lord Bassam of Brighton: My Lords, I believe that we have been round this matter once already. Although I understand the issue of sensitivity, I cannot agree that the level of judicial authorisation should be as the noble Lord suggests. I know that that is the intention behind the amendment.
Perhaps I should repeat the arguments that have been made here and that were made also in another place. I believe that the matter comes down to sheer practicalities. Although I entirely accept the noble Lord's analysis of the capability of the new technology, I do not believe that he fully appreciates how great a problem it would lead to if we were to
The intention behind the amendment is clear and I accept the point about it being a more intrusive form of communications data. I trust that the clarification on offer will be reasonably reassuring.
Earlier in the debate I explained that during the first three months of the year 96.8 per cent of all communications data requests by Her Majesty's Customs and Excise had been for subscriber details--the most basic level of check--and 2.9 per cent of the remainder had been for itemised billing inquiries--
Lord Lucas: My Lords, I apologise to the noble Lord but it seems that he has missed a point in this amendment, which is that it does not cover that data. It covers only the remaining data. The proposed authorisation relates only to data which are not subscriber data. That is why it says that it relates only to (a) and (b) and not (a), (b) and (c).
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord for the further clarification. However, as I understand the drafting of the amendment, it would have that far wider impact. I take what the noble Lord says at face value but I consider that it would lead to a chaotic situation. I do not believe that he appreciates the effect of his amendment.
Perhaps I may complete the point that I was making. I referred to the fact that 2.9 per cent of the remainder had been for itemised billing inquiries and the remaining 0.3 per cent for other services, none of which is more intrusive than those carried out by a surveillance team. That equates to a total of 18,940 requests. That is what I put on the record when we last discussed this issue. It is the 0.3 per cent of requests for other, more intrusive, types of communications data which I want to address.
Lord Lucas: My Lords, of course, likewise, I shall read carefully what the Minister has said. However, I believe that his figures have made my case for me. He says that 0.3 per cent of approximately 19,000 interceptions by Customs and Excise in a six-month period would fall under the heading of my amendment. If my calculation is correct, 60 of them--10 per month--would require a magistrate's warrant. That seems to me to be entirely reasonable.
Lord Bassam of Brighton: My Lords, does the noble Lord not accept that we have already established a sufficient level of seniority for that most intrusive form of interception to be authorised?
Lord Lucas: My Lords, I shall consider that before Third Reading. The Minister has made his case and I plead for time to consider it. We are arguing not about whether some data should have higher-level authorisation but about what that higher level should be. If I feel that I have a further case to make to the Minister, I shall do so before or on Third Reading, but for now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
(a) references, in relation to traffic data comprising signals for the actuation of apparatus, to a telecommunication system by means of which a communication is being or may be transmitted include references to any telecommunication system in which that apparatus is comprised; and
(b) references to traffic").
Lord Bach moved Amendment No. 32:
("and in this section "data", in relation to a postal item, means anything written on the outside of the item.
(7A) The Secretary of State may by order modify the provisions of subsections (4)(a), (6A) and (7).
(7B) The Secretary of State shall not make an order under subsection (7A) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.").
[Amendment No. 33, as an amendment to Amendment No. 32, not moved.]
On Question, Amendment No. 32 agreed to.
Clause 21 [Obtaining and disclosing communications data]:
Viscount Astor moved Amendment No. 33A:
The noble Viscount said: My Lords, this is a probing amendment. Clause 21(2) specifies grounds such as the interests of national security, economic well-being,
12 Jul 2000 : Column 335 public safety, the prevention of crime and public health. Paragraph (h), down at the bottom, effectively says, "Anything that we have left out we can add in by order of the Secretary of State".
I realise that the Secretary of State would have to come to Parliament to gain approval for such an order, but he could make one on almost any basis. I should like an explanation of what possible basis there could be. The power is wider than it should be and I question the need for paragraph (h). Why do the Government think that it is necessary? I beg to move.
Lord Bach: My Lords, the amendment requires a short debate, similar to one that we had in Committee on the purposes for which surveillance can be used under Part II. It rehearses comments from the 18th report of the Committee on Delegated Powers and Deregulation. As we explained in Committee, the comments in the 18th report have to be read in conjunction with the Committee's 21st report, which says:
We can then go on to consider the legitimate purposes for which Article 8 of the European Convention on Human Rights permits interference with the rights protected by that article. There are only two which in some form we have not included in the Bill. Those are, first,
12 Jul 2000 : Column 336 example, we might, in the future, want a power to be exercisable by a regulator for the purpose of protecting the rights of pensioners or consumers. If so, it would be better to say that rather than to use the catch-all phrase,
Your Lordships will notice that that is the approach that we have adopted for some of the purposes already listed in the Bill. They do not follow exactly the wording of the convention rights. They are tailored to be as narrow as possible within the convention rights and to meet the requirements of the investigating agencies in the modern age.
We believe that it may be possible to add purposes in the future which are narrower than those left open to us; that is, "for the protection of morals" or "for the rights and freedoms of others". If we can conceive of narrower purposes in the future, we should be allowed to add them because they speak for a better approach than one that is too broad.
These are important issues and they are inextricably linked with the implementation of the Human Rights Act. As a matter of law, it will not be possible for any Secretary of State to make an order that is incompatible with the convention. That is what the Human Rights Act guarantees and that is one of the great benefits of the Human Rights Act which was passed at the instigation of this Government a few years ago. In the light of this situation, the danger perceived in this order-making power simply does not exist. I am grateful to the noble Viscount for raising this probing amendment but I now ask him to withdraw it.
Viscount Astor: My Lords, I am grateful to the Minister for his reply. The Delegated Powers and Deregulation Committee looked at this matter which is subject to the affirmative procedure. The committee looked at it from a powers point of view. I was asking the noble Lord to explain the Government's thinking as to why they might need that power. I have been given an explanation. The noble Lord explained that it will be limited by Article 8 and so on and why the Government need the power. That is extremely helpful and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 35. As the Bill stands, both authorisations and notices to access communications data may, subject to the other requirements placed by Clause 22, take such form and be granted in such a manner as the authorising officer thinks fit.
12 Jul 2000 : Column 337
Government Amendment No. 34 would remove that subsection relating to authorisations to access communications data, which we now believe is unnecessary. Although it would have provided extra flexibility to authorising officers, we believe it is better to provide central guidance, including standard forms where possible, in the code of practice. That will also be beneficial from an oversight point of view.
Amendment No. 35, tabled by the noble Lord, Lord Cope, would have precisely the same effect in relation to notices served upon holders of communications data, and for that reason I am happy to accept it. Although a specimen notice does not appear in the preliminary draft of the code which we have published, we have made it clear that following consultation regarding the precise form of the notice, a specimen will be included in the draft which goes out for public consultation.
I believe that the noble Viscount and I are as one. Our amendment will be helpful and effective and the amendment tabled by the noble Viscount adds to it. We are happy to accept his amendment. I beg to move.
Viscount Astor: My Lords, I am always delighted to be as one with the Minister. I am extremely pleased that he considers that Amendment No. 35 adds to his amendment. This is an important issue. In paragraph (f) we were concerned that there were wide powers that were not subject to the scrutiny that existed on the previous amendment that we discussed.
On Question, amendment agreed to.
Viscount Astor moved Amendment No. 35:
Clause 24 [Interpretation of Chapter II]:
Lord Grabiner moved Amendment No. 35A:
("( ) the Commissioners of Inland Revenue;").
The purpose of the amendment is to give effect to one of the recommendations that I made in my report on the informal economy to my right honourable friend the Chancellor of the Exchequer in March this year. The amendment would provide a primary statutory authorisation that would enable the Inland Revenue to conduct reverse searches of telephone
12 Jul 2000 : Column 338 number databases; in other words, the Inland Revenue would be able to obtain the name and address of a person holding a certain telephone number.
I should say something about the background. Currently the Inland Revenue has wide powers to access information from outside government, for example, details of payments (names, addresses and amounts) made by a business for the supply of services; names and addresses held on statutory registers, for example, vehicle registration details from the DVLA; and full particulars of interest credited to bank or building society accounts in the United Kingdom.
If Inland Revenue investigators were entitled to reverse search in the way that I have described, they would be able to follow up advertisements for goods and services that give contact telephone numbers but not personal details. We are all familiar with advertisements in local newsagents, local newspapers and, unfortunately, advertisements in telephone kiosks. It would be possible for the Inland Revenue to check whether the subscriber was registered for tax or perhaps claiming statutory benefits. It would be a quick and effective method of targeting investigations.
For noble Lords who know about such matters, it will come as no surprise to hear that telephone directory databases can already be purchased on the Internet and stored on CD-ROM in a format that can be searched and reverse searched using a standard desktop computer. That practice has raised some concern about data protection; that is, that reverse searching is interpreted as not constituting "fair" processing under data protection law on the footing that the personal information, absent specific informed consent, was not supplied for that purpose in the first place.
There are obviously circumstances where that concern must give way to an overriding public interest, which may be, for example, to contain fraud or to protect the public purse. Accordingly, the data protection legislation contains public interest exemptions; for example, the Data Protection Act 1998, Section 29. As a result, the emergency services are able to carry out reverse searches on all numbers which have been used to dial 999. It is also the case that Customs and Excise investigators have been making reverse searches of the telephone directory for many years, and all requests for a search are channelled through a single point of contact at the Customs and Excise National Co-ordination Unit.
It seems to me that it would be a desirable and valuable extension to the existing investigatory powers of the Inland Revenue to have the benefit of Amendment No. 35A. I believe that it is in the public interest that the Revenue should not be hamstrung in its endeavours to protect the public purse. In accordance with the procedures which have been adopted under the existing data protection legislation, it would be desirable to have suitable guidelines in the form of a code of practice. I beg to move.
Lord Cope of Berkeley: My Lords, the noble Lord, Lord Grabiner, is obviously particularly experienced in these matters because of the report he prepared, to which he referred, on the so-called "informal" economy--an odd way to describe the phenomenon, but we will not go into that at the moment. In particular, he made a clear case for the Revenue to be able to undertake reverse searches of telephone data.
But I am not sure that that is the effect of Amendment No. 35A. I am now becoming hesitant because the rules of Report stage mean that I am supposed to speak before the Minister, who will be much more authoritative than I on this matter and it is possible that, closet lawyer though I may be, I have misread the Bill. Amendment No. 35A seems to give the Inland Revenue access to all communications data and not just traffic data. I am not quite sure where reverse searches of the telephone directory fall, whether under traffic data or communications data. Now that we are rewriting the Bill to distinguish between those two, it becomes important.
One other aspect of this issue caught my eye; that is, the contrast between the Commissioners of Customs and Excise and the Commissioners of Inland Revenue. To those of us who have been involved in conventional types of business, Customs and Excise is seen mainly in terms of VAT and it may seem odd that the department which collects VAT, excise duty and so forth, is to be given these powers and, according to the Bill, the Inland Revenue is not. I fancy that, as much as anything, the reason is historic. Customs and Excise is a considerably older department and that is why Customs and Excise provisions appear first in finance Bills. Also it has a long history as an anti-smuggling agency, which at one time was an extremely rough business, and still can be. It was an armed service. Most of the older Customs Houses have a glass case somewhere with the odd musket or two and cutlass in it. The Inland Revenue never had powers of that character whereas Customs and Excise traditionally had.
The situation is partly historic but partly also has to do with the fact that those working for Customs and Excise spend a great deal of their time engaged in international matters--anti-smuggling matters--of a very important nature, which include drugs and all things relating to excise duty, and so on. Given that it is in part historical, it also partly reflects the international nature of many of the operations of the Customs and Excise by comparison with those of the Inland Revenue. However, when one considers the VAT/income tax comparison, it is still odd that the two departments should be treated differently. I am not sure that I can logically justify such treatment in those terms.
I spoke earlier about the difference of treatment as regards external and internal communications, which has continued into this Bill. That is perhaps another example of treating our own citizens within the country more softly, as it were, than those who are doing international business and who are, hence, potential smugglers, so to speak. Customs and Excise is not called the "Outward Revenue" or the "Overseas Revenue", but, in a sense, that would be the true
12 Jul 2000 : Column 340 contrast to the Inland Revenue. It would also express the historic role of the service, though not its current role.
Lord Phillips of Sudbury: My Lords, we should like to identify ourselves with the amendment. It is perhaps strange that the Commissioners for Inland Revenue were not placed within the definition of "relevant public authority" from the outset. As the noble Lord, Lord Grabiner, said, it is ludicrous for the Inland Revenue to be hamstrung in the proper collection of taxes at a time when there are already signs that tax is falling not so much on the well off as on the law abiding. Therefore, we are wholly supportive of this measure.
Lord Bassam of Brighton: My Lords, I am grateful to my noble friend for raising this matter. Like other Members of this House, I am familiar with his report on the black economy and with the great respect in which that report is held. From what I understand and from the eloquent way in which my noble friend set out the considerations this evening, there seems to be a strong case for the inclusion of the Inland Revenue among those public authorities which are able to access communications data.
For my part, I appreciate that this amendment would enable the Inland Revenue to track down those businesses that advertise a telephone number alone and have not told the Inland Revenue that they are liable to pay tax. This Government are encouraging people working in the informal economy to put their affairs in order. That encouragement needs to be balanced by powers which enable those who remain in the informal economy to be detected and brought to account. As such, that appears to me to be a sensible and proportionate suggestion.
Lord Bassam of Brighton: My Lords, I believe that I shall have to indulge in the familiar Home Office correspondence with the noble Lord on that point. However, I shall do so as swiftly as possible.
Lord Grabiner: My Lords, I believe that a reply may be forthcoming.
Lord Bassam of Brighton: My Lords, I struggle to read the writing that is in front of me. We agree that the Inland Revenue should be limited in the communications data that it can obtain. The Secretary of State will make an order under Clause 24(3) limiting the data that can be obtained by the Inland Revenue. I think that that answers the noble Lord's point.
Lord Cope of Berkeley: My Lords, I believe that it probably does. However, I shall study it carefully and no doubt the noble Lord will write to me if necessary.
Lord Grabiner: My Lords, I am grateful for the comments of all those who have participated in this short debate and for the approach adopted by my noble friend the Minister.
On Question, amendment agreed to.
However, Clause 21 contains all kinds of measures which are not undertaken by the distinguished public authorities that I have mentioned. For example, Clause 21 mentions "protecting public health" and,
Lord Lucas: My Lords, I entirely support my noble friend's amendment which points out the dissonance between the clause we are discussing and Clause 21. There are so many purposes in Clause 21 for which communications data can be obtained that there clearly have to be more authorities in the Government's mind now that they intend to add to the list in Clause 24(1)(f). Before we reach Third Reading we should be given a list of them.
Lord Bassam of Brighton: My Lords, this is altogether a more difficult issue than the question discussed earlier of whether we can add to the purposes for which communications data can be accessed. This issue addresses whether we can add to the list of public authorities which can access communications data.
I am aware of the views of noble Lords opposite who think that the power should be removed, and, of course, I have read the 21st report of the Delegated Powers and Deregulation Committee. But the simple fact is that we are entering uncharted territory as we approach the implementation of the Human Rights Act. One of the prime purposes of this Bill is to enact an ECHR compliant regime for the use of the six investigatory powers which are covered by the Bill.
But there are other regulators in the corporate and financial fields which may also be candidates for inclusion. Again, the position is not yet clear. This is not only because we are still finding out which techniques are used by which agency--although, as your Lordships know, there is some truth in that; it is one of the very instructive consequences of the Human Rights Act--but also because regulatory techniques change as patterns of business behaviour change. Communications data may well become more important to some agencies. If that happens, we do not believe that primary legislation should be the only means of responding.
Finally, there may be bodies which do not yet know that what they are doing interferes with Article 8 rights and needs to be regulated. We hope that convention awareness is fairly good across the public sector, but we cannot be 100 per cent certain. There may be bodies which do not yet know that they are likely to be "public authorities" for the purpose of the Human Rights Act.
For these reasons, we maintain that there is a strong argument for retaining the order-making power in Clause 24 and elsewhere in the Bill. Orders must be approved by each House, giving Parliament an opportunity to scrutinise any authorities that are added to the list. I ask noble Lords to reflect carefully on that matter. I would never disagree with the Committee lightly; I had intended to speak with Members of the Committee, but that has not been possible. After reflection, I ask noble Lords opposite to withdraw their amendment.
We require flexibility and, if this amendment were to be agreed to, effectively we would need Acts of Parliament to add new agencies. While that might be desirable in terms of the level of scrutiny, it would be unduly inflexible and add an unnecessary burden to the legislative programme. This could perhaps be much better dealt with through order making, where there will be an opportunity to scrutinise any further authorities which need to be added to the list. With that, I trust that noble Lords opposite will feel able to withdraw their amendment.
Lord Cope of Berkeley: My Lords, that was an astonishing response in several respects. Regarding the Home Office's careful concern for the legislative programme, given that we are awash with Bills from the Home Office at the moment--we have lists of Bills that are stuck somewhere in the parliamentary process--and given that we have another Bill to deal with in the next couple of weeks that the Home Office has just thought of, its tender concern for the legislative programme is touching.
There were other extraordinary features of the noble Lord's response. This problem will clearly be extended, mostly it seemed from what the Minister said, to public departments which do not realise that they fall under the relevant sections of the Human Rights Act. Considering all the publicity there has been about the Human Rights Act-- there have even been training sessions for lawyers on the Human Rights Act--there are still public departments which do not realise that within a few weeks they will come
It is not that we wish to deny the reverse telephone directory to public authorities that need it although, as I said earlier, I am still a little doubtful as to the exact amount of data to which a public authority in the list would be allowed to have access. However, in the light of the Minister's reply, startled as I am by it, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 [Conduct to which Part II applies]:
Lord Bach moved Amendment No. 37:
("( ) is carried out in relation to anything taking place on any residential premises or in any private vehicle; and").
These amendments remove that type of activity from the classification. Thus, intrusive surveillance is limited to the residential premises or private vehicle of the subject of the surveillance or to other premises or vehicle where the information obtained from a device is of the same quality and detail as might be expected to be obtained from a device actually on the premises or in the vehicle. I beg to move.
12 Jul 2000 : Column 345
Lord Lucas: My Lords, it is always a pleasure to find out that one has something right. It does not often happen on the Opposition Benches, but it has happened not only on the Opposition Benches today but also on the Government Benches, which is even rarer, as I remember from my years as a Back-Bencher when we were in government. I am delighted by the amendments. They are much better drafted than the ones I tabled. I am very pleased to see them in the Bill.
On Question, amendment agreed to.
On Question, amendment agreed to.
Lord Lucas moved Amendment No. 39:
However good the laser system, on the basic laws of physics it will never be "the same". It absolutely cannot be. It is no good the Minister hoping that law writing can go against the laws of physics. It cannot. Therefore, no such device will ever be intrusive surveillance if anyone chooses to push it to a court case. It is not "the same". That is why I propose in the amendment that we should have the word "similar", which would allow the physics to be accommodated in the law. One can say that a laser device provides a "similar" level of performance as one could achieve with a microphone in a room, but it definitely does not, and never will, provide the "same" level of performance. I beg to move.
Lord Phillips of Sudbury: My Lords, in Committee I spoke on this amendment in the same terms as the noble Lord, Lord Lucas. The logic seems to be as irresistible today as it did then. I cannot see why the amendment is not acceptable. I hope that it is.
Lord Cope of Berkeley: My Lords, I, too, hope that the amendment is acceptable, although it occurred to
me this morning when I was considering the issue that even "similar" may not be the correct word. What we mean is "as good as". The "same" means that it is neither better nor worse; "similar" means that it is not much better or not much worse; what we really mean is that it should be "as good as".
Lord Bach: My Lords, this amendment would bring a greater range of surveillance activity within the definition of "intrusive surveillance". We do not want to do that. In Committee an amendment was tabled around subsection (5) of this clause. The noble Lord, Lord Lucas, was somewhat sceptical that a device outside residential premises or a private vehicle could ever produce material of the same quality as if it were located in those premises. I know that that doubt is behind the amendment.
I begin by saying that we are assured that it is indeed possible to obtain material of the same quality and detail by remote means. Furthermore, given the rapid progress being made in all fields of technology, we consider this provision to be a wise piece of "future-proofing". It is therefore the Government's view that the test of the "same quality and detail" is the right one.
"merely watching something from outside",
12 Jul 2000 : Column 347
I ask the noble Lord to reconsider this and to withdraw his amendment.
Lord Lucas: My Lords, of course I shall withdraw the amendment, but I still argue the point that, according to the laws of physics, such surveillance never can be absolutely and exactly the "same". Imagine a microphone installed on a premises. The sensitivity of that microphone to a conversation will depend on a finely designed audio pick-up which will then be sent to a form of digital transmission which will, as I am sure the noble Lord knows, transmit back perfectly the information received. Error codes will be included so that any mistakes which occur in transmission can be traced and corrected. Thus, with a good quality, modern digital microphone, it is possible to achieve perfect transmission at a considerable distance from a premises.
However, when using a laser device, the well-designed and sensitive microphone is replaced by a three-millimetre sheet of plate glass manufactured by Pilkington to no high specification. It will contain within it all kinds of harmonics and vibrations. It must produce a lower level of reception because the level of hearing will be so much worse than that from a microphone placed inside a premises. Even though perfect transmission might be achieved from the glass back to the electronic reception, the fact of the sheet of glass standing in the way will inevitably degrade the transmission. If the requirement is that it should be the "same", then everything should be ruled out. There is no device in existence which operates outside that could not be bettered by a device placed inside a premises or a car. That is an absolute and 100 per cent unbreakable law of physics. It cannot be otherwise.
The noble Lord said: My Lords, on behalf of my noble friend I should like to move Amendment No. 40 and speak at the same time to Amendments Nos. 41, 42, 43 and 94. These amendments look substantial on the Marshalled List, but their purpose is simple. They seek to achieve four things. They will add the Food Standards Agency and the Intervention Board to the list of bodies whose surveillance activities can be regulated by an order made by the devolved administration. The new clause deals with the
12 Jul 2000 : Column 348 situation in Northern Ireland and will enable the devolved administration in Northern Ireland to make orders governing surveillance by bodies in the transferred, devolved field.
First, the amendments add the Food Standards Agency and the Intervention Board to the list of bodies. Secondly, they ensure that the same is true for new bodies which are added to the schedule by the Secretary of State. As long as those bodies are not within sole Westminster competence, it is right that the devolved administration should have the ability to regulate them. Thirdly, the amendments change the order-making authority from "First Minister and Deputy First Minister acting jointly" to "Office of the First Minister and Deputy First Minister". That refinement is made at the suggestion of the devolved administration. Lastly, the amendments split Clause 29 into two clauses, simply because the Northern Ireland material in Clause 29 has become substantial enough to merit a new clause. I beg to move.
Lord Cope of Berkeley: My Lords, some would not regard 12th July as a suitable day on which to make these changes in relation to Northern Ireland. However, I do not object to them.
On Question, amendment agreed to.
("(5A) Without prejudice to section (Orders under s. 29 for Northern Ireland), the power to make an order under this section shall be exercisable by the Secretary of State.").
12 Jul 2000 : Column 349
Lord Phillips of Sudbury moved Amendment No. 43A:
The noble Lord said: My Lords, Amendment No. 43A deals with the four conditions which must be satisfied if any person with the appropriate permission under the clause is to impose a disclosure requirement in respect of protected information. Therefore, this is very important. Clause 47, which prescribes how notices requiring disclosure are to be formulated, is central to the Bill. We on these Benches believe that the four conditions impose sensible requirements. One is that the person on whom the disclosure requirement is to be imposed is in possession of the protected information. The second condition is that the imposition of that requirement is proportionate. The third requirement is that it is not reasonably practicable to get the information otherwise.
The last condition, which is where the amendment comes in, is that the imposition of the disclosure requirement in respect of protected information is necessary on the grounds specified in subsection (3)--that it is in the interests of national security, that it is for the purpose of preventing or detecting crime or that it is in the interests of the economic well-being of the UK--or is,
12 Jul 2000 : Column 350 hole in the proper protection which citizens should have against a disclosure requirement, which is a very serious step, being placed upon them.
This amendment changes the wording of subsection (2)(b)(ii) so that it reads:
Lord Bassam of Brighton: My Lords, I am aware that the provision in Clause 47(2)(b)(ii) has caused concern. I stress that this is not the open door to allow access to keys as some have painted it. Encrypted data may conceivably be encountered in a number of circumstances by a wide range of public authorities other than simply the UK's law enforcement, security and intelligence agencies which have statutory powers to seize or require disclosure of information.
Our objective is to seek to maintain as best we can the effectiveness of all statutory powers and functions in the face of technological advancement. These are powers that Parliament has considered are necessary. Merely because advancements in technology now make it possible for data to be protected in some extra technical way through the use of strong encryption ought not of itself to undermine the effectiveness of these powers. That is the essential position.
Amendment, by leave, withdrawn.
Lord Phillips of Sudbury moved Amendment No. 44:
("( ) must provide arrangements for the protected information to be delivered to the recipient in the event that--
(i) it is not already in his possession, or
(ii) it is only likely to come into the possession of any person or service in accordance with some paragraph of subsection (1);").
12 Jul 2000 : Column 351 notice cannot comply with it because he does not have the protected information that he is supposed to decrypt or put into plain text. Perhaps I may make it easier to understand by giving a scenario.
Let us say that Steve sends an encrypted message to Willie and he decrypts it. He reads it and notes its contents. He does not keep it perhaps because it contains information which is too sensitive to keep. Two days later a legally entitled entity who has intercepted the message comes to Willie with a Section 47 notice and requests to be provided with the plain text. Willie cannot comply, however willing. He says, "Supply me with a copy of the protected information and I shall be happy to oblige". If, for whatever reason, the legally entitled authority does not then supply the protected information, poor Willie is in a serious situation, which we would not want. This innocent amendment is designed to put Willie in the clear in these unhappy circumstances. I beg to move.
Lord Cope of Berkeley: My Lords, this problem was also pointed out to me. It is important that we have a response to it and preferably that we put the Bill right.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord for being so concerned about communications between Steve and Willie. I shall do my best. As I understand it, this amendment seeks to plug what seems to be a flaw in the current construction of Clause 48. The proposed change would mean that in all cases where the recipient of the notice does not have the relevant protected information in his or her possession the person with permission to serve a Section 47 notice would be required to provide that information in its entirety to the recipient of the notice to allow him or her to decrypt it or to disclose any key of their choosing that does decode it.
We cannot accept this amendment. The Bill recognises that there may be cases where the recipient of a notice does not have the relevant protected information in their possession but has a relevant key. In such cases it may well be that providing the relevant protected information to a person will be sensible and practical in certain circumstances. We can see that.
The argument is starkest in cases involving interception. The amendment would be in conflict with the principle underlying Clause 14, which we think rightly imposes strict limits on who can see intercepted material. We think that the privacy argument prevails.
This is difficult. We do not believe it appropriate to put a blanket provision on the face of the Bill to say that a person serving a notice must in all cases provide the recipient of a notice with all the protected information where he himself does not possess it. That would be the effect of the noble Lord's amendment.
There will be cases where that is appropriate but others where it is not. It seems to us that this is a matter sensibly dealt with in the code of practice. I appreciate that the initial draft code does not cover this but we shall consider the noble Lord's comments on this point--they are relevant and no doubt we shall receive communications from other interested parties on the subject--in fleshing out the details of the code. I trust that, with that undertaking, the noble Lord will feel able to withdraw the amendment.
Lord Phillips of Sudbury: My Lords, I am grateful to the Minister for the reply. It merely illustrates the twists and turns which dog every part of the Bill. I should be happy to think that there were satisfactory provisions in the relevant code of practice.
Perhaps the Minister will assure me that in the scenario I suggested Willie could not find himself on the wrong side of the law because such a provision is not in the Bill. I do not expect that assurance today. However, there could be a category of cases where severe injustice could be done.
Lord Phillips of Sudbury: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Astor: My Lords, as my noble friend said, Clause 47 is a difficult and controversial part of the Bill. It is a reasonable amendment. The Government must either accept the amendment or explain why they regard it as unnecessary. The Bill provides that a notice imposing a disclosure "must specify the time". There is no reference to a reasonable period of time unless the issue is addressed in a code of practice that I have missed. I shall listen with interest to the Minister's response.
Lord Bassam of Brighton: My Lords, the noble Earl did himself an injustice by saying that his amendment was modest. It is a most helpful amendment. It appears to stem from a fear of unreasonable demands in respect of the time by which persons may be required to comply with Section 47 notices.
We discussed the matter in Committee, when I set out reasons why I did not believe that that would be the case. However, I am willing to accept the noble Earl's amendment in principle. We do not believe that the drafting is quite right and if he can accept that point I happily give an undertaking to come back at Third Reading with something that does the job. We need to consider the words in order to ensure that they are fit for the purpose and I hope that the noble Earl will feel able to withdraw his amendment.
Amendment, by leave, withdrawn.
Lord Bach moved Amendment No. 46:
Page 53, line 9, leave out from ("made") to end of line 11.
The noble Lord said: My Lords, this limiting amendment would delete the provision permitting a Section 47 notice to be given,
"in such form as the person giving it thinks fit".
The fear was that the present provision contained in Clause 47(4)(h) would somehow be misused, allowing notices to be served in whatever form a particular authority saw fit to use. I believe that those fears are very much unfounded. We have said all along that there needs to be consistency in the form of notices for the sake of the authority serving them and of those receiving them. But by way of offering comfort, we are proposing here to delete Clause 47(4)(h) from the Bill. Guidance on notices will be given in the code of practice. We need to consult on the form of a notice to achieve best practice. We have set out an idea of what a notice might look like in the initial draft code of practice on which we will welcome and require comments from all interested parties. I beg to move.
The Earl of Northesk: My Lords, as a matter of courtesy, I rise to thank the Minister for the Government's response.
On Question, amendment agreed to.
Lord Lucas moved Amendment No. 47:
Lord Bach: My Lords, the noble Lord says that he has never succeeded in arguing with the parliamentary draftsmen. Tonight is a first; he has succeeded beyond his wildest dreams. We spoke earlier of lawyers and closet lawyers and the incredible care with which the noble Lord has examined the Bill has paid off. We believe that he is right and we are happy to accept his amendment. We are always pleased to hear the noble Lord's drafting suggestions--perhaps not always so late at night--and on this occasion we are happy to accept his amendment.
Lord Lucas: My Lords, I have a small confession to make. The idea was not mine but that of a gentleman called Charles Lindsey from Manchester University. Clearly, academia is working at full speed on the Bill and I am delighted.
Lord Bach: My Lords, the noble Lord has just spoilt it all!
On Question, amendment agreed to.
("( ) A notice shall not be considered necessary on the ground falling within subsection (3)(c) unless the information protected by the key which is sought to be disclosed is information relating to the acts or intentions of persons outside the British Islands.").
Lord Bassam of Brighton: My Lords, I believe that the concerns which lie behind the amendment are unfounded. The limitation suggested is already present via other existing statutes. It is unnecessary because the underlying powers of the relevant agencies which may lawfully obtain material in the interests of the economic well-being of the UK are constrained by existing statutes which confine the agencies' functions to certain activities only. That is important and has been missed by a number of commentators outside your Lordships' House.
Section 47 notices authorised as being necessary in the interests of the economic well-being of the United Kingdom under Clause 47(3)(c) must be related to the acts or intentions of persons outside the British Islands. The reason is that the powers and functions of the relevant agencies are constrained by statute--in this case, the Intelligence Services Act 1994.
For example, the statutory function of the Secret Intelligence Service which may be exercisable in the interests of the economic well-being of the United Kingdom under Section 1(2)(b) of the ISA is constrained by Section 1(1)(a) of that Act only to where this relates to,
Section 5(2)(a) of the ISA explains that the Secretary of State may authorise a warrant only where it is necessary in carrying out the functions of the agencies, those functions being constrained as I have just described. As regards economic well-being, that must relate to the actions or intentions of persons outside the United Kingdom. It is unlawful for the agencies to act outside their statutory functions as described in the ISA.
The important point to reiterate is that the power to serve a decryption notice is simply ancillary to existing, limited powers. Therefore, to a large extent the restriction which noble Lords seek is already there, attached to the relevant underlying statutory power.
Clause 47(3)(c) is worded,
I trust that that explanation will enable the noble Lord to withdraw his amendment.
Lord Phillips of Sudbury: My Lords, I am grateful for that full explanation. I believe that it is a pity that in a Bill of this nature that cannot be put on the face of the Bill rather than leaving the poor reader of the statute to chase around among a hoard of other Acts. I do not see why, as a matter of practical draftsmanship and utility of the measure, that should not appear here.
My second point is: what would be the situation if the intelligence agencies came into possession of protected information other than by a statutory power? Could not the Secretary of State for Trade and Industry authorise a decryption notice in the interests of economic well-being, thus escaping the defences mentioned by the Minister? I do not expect him to answer that point at five past 11 on a Wednesday night, but I ask him to dwell on the first practical issue and perhaps review his opinion before Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas moved Amendment No. 49:
("( ) A notice under this section shall not require the disclosure of any key where an application under the Police and Criminal Evidence Act 1984 may be used to require the production of data in a legible and usable form.").
The police have the power under the Police and Criminal Evidence Act 1984 to require that the information be put into a form in which they can read it. The Bill addresses that problem in a different way, by requiring me, against all the copyright agreements that I have presumably entered into with Microsoft, to provide the police with a copy of whichever version of Word I have used to write the document that is unintelligible to them. PACE is a better way of dealing with encryption caused by commercial programs storing data in their own format. The amendment is a suggestion, but I shall be happy to accept that there are better ways of doing it. I beg to move.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord, Lord Lucas. He has touched on an issue that we had considered. We looked carefully at whether PACE might be sufficient to do the job, but we do not believe that it is. It is interesting that we were working in the same direction.
PACE was enacted before the growth of the Internet as a mass communications medium and the wider availability of strong encryption. PACE does not do what the authorities need on protected information. The important point is contained in Section 20 of PACE, which the noble Lord hints at in the amendment. It requires computerised material to be produced in a visible and legible form that can be taken away. The important question is whether that also means that the information should be comprehensible. We believe that there is doubt about that. The issue has already caused problems for the police.
There is no explicit power in UK law to require someone to disclose protected information in an intelligible form; neither is there a clear power to require the disclosure of an encryption key. We are trying to remedy that with Part III. Tweaking PACE would not do that.
We recognise that any number of other statutory powers and functions may potentially be undermined by the rising use of encryption technology by criminals. That is why we have opted for a self-standing disclosure power to be properly authorised that contains its own safeguards.
If the relevant PACE provisions were sufficient, I assure your Lordships that we would not be legislating in Part III. It is because they are not that I invite the noble Lord to withdraw his amendment.
Lord Lucas: My Lords, I am grateful to the Minister for that reply. I hope that he will be able to tell me, in correspondence or otherwise, how I get round the fact that I am not authorised to provide anybody with a copy of a commercial program. I shall get into all sorts of trouble if I start copying Microsoft Word to provide it to other people. That is effectively what I should have to do if the police required me to produce the key because the program itself is the key.
All I need is some comfort that I am protected from any consequences from the author of the program for providing the police or whoever with a copy of it so that they can use it on the files which they need to understand. But I do not need an answer now and I beg leave to withdraw the amendment.
(a) it is intended to be used for the purpose only of generating electronic signatures and has not in fact been used for any other purpose; or
(b) the protected information to which that key relates is itself a further key whose disclosure could not be required by virtue of this subsection.").
This matter is beyond my ken but we have informed about it by those assisting us--Caspar Bowden in particular. The problem is that under the Bill as drafted the encrypted private signature-only key is itself protected information. That is under Clause 54(1) and (4). However, if that were to come into the possession of an officer--for example, by
12 Jul 2000 : Column 358 seizure of a computer--the officer may by notice under Clause 47(9)(a) demand the owner's pass phrase, notwithstanding that he would then hold the owner's signature-only key.
The officer would not be in breach of Clause 47(9)(a) in asking for that and he is asking for the pass phrase which is undoubtedly an encryption key and for which he is thus entitled to ask. So the purpose of this wording is to close that loophole. I beg to move.
Lord Lucas: My Lords, perhaps I may point out an oddity in the groupings list. We are now discussing Amendment No. 50 which should be grouped with Amendment No. 52 and then Amendments Nos. 51 and 53 go together. The noble Lord, Lord Phillips, has not spoken to Amendments Nos. 51 and 53, which go together conveniently as the next grouping because they deal with the word "recently". Amendments Nos. 50 and 52 deal with the problem of how keys are held by people and they go together.
I entirely support what the noble Lord, Lord Phillips, said. Nobody keeps his private key in his head or anywhere. It is a long succession of digits or symbols, 128 of them, and they are not memorable. They are protected with a pass phrase. So people will carry around their digital signature in their head as a pass phrase. But, as the Bill is written at the moment, that pass phrase can be demanded and received by the police, even though it only protects one's digital signature to which the police have no right. As the noble Lord, Lord Phillips, said, Caspar Bowden has spotted a technical but important error which should be put right, if not by this amendment then by something similar.
Lord Phillips of Sudbury: My Lords, I should have dealt with Amendments Nos. 51 and 53. There is no pride at this hour of night and if the drafting of the noble Lord, Lord Lucas, appeals to the Government, I do not care so long as the problem is resolved. Amendments Nos. 51 and 53 are designed to ensure the protection of subsection (9), which states that a notice,
Lord Bassam of Brighton: My Lords, I shall deal with Amendments Nos. 50, 51, 52 and 53. In Committee there was discussion of electronic signature keys and I said then, as I say now, that we recognise the importance of maintaining the security
of electronic signature keys. The whole point about electronic signatures is to ensure the integrity and authenticity of data, but the reality of the technology is that it is possible for signature keys to be used for confidentiality purposes to protect or to encrypt the content of data or messages. After all, Part III of the Bill is all about that.Where keys have been used for both purposes, it seems right that the Bill should provide for power to require disclosure in certain circumstances. That is the reality of the technology. As before, your Lordships' amendment recognises that in paragraph (a) of Amendment No. 50. If paragraph (b) is intended to allay the fear of cases where persons may have stored their electronic signature on their computer and, to protect it, encrypted it with a password or passphrase, the rationale is that that becomes protected information which, if the computer is seized, a law enforcement officer could demand to be disclosed under the Part III powers.
I see what this tries to achieve, but I do not believe that it is necessary. I recognise the concern and I shall try to address it. First, law enforcement will be able to serve a notice only if the tests in Clause 47 are met. Trying to obtain a key by describing it as protected information would have to be necessary. I cannot predict all future circumstances in which keys may be sought but those tests look pretty high in the example that we are discussing here.
Secondly, we are interested to ensure that these provisions are not abused or avoided by practitioners. For the record, if law enforcement officers want to gain access to decrypted information, they should do so by following the procedure set out in the Bill. They should not do so by treating the key as protected information. I am grateful to noble Lords who have raised this issue. We shall address it as a matter of good practice in the code of practice. There is a similar concern in Part II where it would theoretically be possible for someone to achieve what amounts to telephone interception by planting a bug and avoiding Part I of the Bill. Already the code of practice under the Police Act 1997 effectively prevents that and we shall repeat the inhibition in our code under Part III of this piece of legislation. What I have said probably covers Amendment No. 52, referred to by the noble Lord, Lord Lucas.
Turning to Amendments Nos. 51 and 53, they seek to insert a cut-off point for access to keys used for both electronic signature and confidentiality purposes. I understand the concern about it being asked for keys to be disclosed that were last used for confidentiality purposes some time ago. I understand what these amendments seek to achieve, but we believe that they would cause difficulties.
It is important to remember that permission for Section 47 notices to be served may be given only in respect of information that has been or is likely to be obtained under some lawful authority. The combined effect of Amendments Nos. 51 and 53 causes a difficulty. Suppose permission to serve a Section 47 notice is given, following only a week-long
12 Jul 2000 : Column 360 investigation, and although there are not sufficient grounds to justify it, protected information is lawfully seized, including material last encrypted with a key, say, some six months ago, are we saying that that key should not come under the ambit of the Part III power? Under the terms of this amendment, that would be damaging. There are difficulties in setting down timescales as envisaged by the amendments.
Indeed, general difficulties have been raised by noble Lords. Many are thrown up by the nature of the technology itself, ever-evolving as it does. We tried to provide protection against the set of keys used only for electronic signature purposes in Clause 49, and it is right that we do so. Safeguards are in place, but the reality is that the Bill needs to cater for occasions when signature keys are also being used for confidentiality purposes. That, too, we believe to be right in the circumstances.
I accept that that is a lengthy explanation. But I hope it helps the noble Lord to feel able to withdraw his amendment.
Lord Phillips of Sudbury: My Lords, I listened to the Minister's explanation with less than a perfect understanding of all its working parts. I shall look at Hansard carefully. It may be that I shall have to come back to this later. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The noble Lord said: My Lords, most of what I wanted to say in relation to Amendment No. 52 was covered by the Minister. I merely wish to record, for purposes to which we shall come tomorrow rather than today, that on this basis most of the people in the world--there are a large number of them--using PGP or similar signature systems, will find those signatures open under this Bill because they are used as dual-purpose keys. That is widespread in that and other signature systems. So when we are looking at separating signatures from other keys, we are not doing it to any great extent as regards the ordinary use of current commercial systems by ordinary people. We probably are when we come to commercial organisations, but not for individual people.
We discussed the question of legally privileged material in the context of our discussion of interception under Part I of the Bill. This Bill does not rewrite the rules of evidence. If something is inadmissible because it is legally privileged, that remains the case under the Bill. That is true for all parts of the Bill.
Amendment, by leave, withdrawn.
(c) protects only a further key the disclosure of which could not be required by virtue of this subsection").
Page 54, line 1, at end insert--
("( ) A notice under this section shall not confer any right to production of, or access to, items subject to legal privilege.").
Page 54, line 7, at end insert-
("( ) Notwithstanding the generality of this section, for the purpose of requiring any person to provide assistance in relation to a notice issued under this section the person to whom it is addressed may
(a) serve a copy of the notice on such persons as he considers may be able to provide such assistance; or
(b) make arrangements under which a copy of it is to be or may be so served.")
As I am sure that many of your Lordships know, the Post Office has nowadays a ViaCode service, which is the UK's first secure electronic commerce service and was launched by the Royal Mail last year. It therefore expects to be in a position of having to respond to notices under Part III of the Bill. Under Clause 47, the notices would normally be served on a member of the board of directors, but there are no provisions for passing on the notice to others to enable compliance. There are such provisions under Part I but not in this part of the Bill.
If the notice contains, as it presumably will, a non-disclosure provision, the director may find himself in the dilemma of facing penalties either for failing to comply or for failing to keep the notice secret if he is not in a personal position to be able to comply with the notice. It seems to me and to the Post Office that if all reasonable efforts have been made to deal with such a notice--and, where appropriate, to keep it secret within the organisation--the director should not be faced with this particular Morton's Fork. The punishment for the offence can be imprisonment. To be imprisoned either way round seems to be a peculiar difficulty in which we might place directors, not just of the Post Office but also of many other companies. I believe that the Post Office has a good point. I beg to move.
Lord Bach: My Lords, we understand the intent of the amendment and know that there is continuing concern about the extent to which a tipping-off will come into play. Indeed, we shall address that matter in a little more detail in tomorrow's proceedings. We believe that this amendment stems from the draft codes of practice, as published on Monday. The preliminary draft code recognises at paragraph 6.9 on page 16 that a senior person in an organisation served with a notice may need assistance, either technical or otherwise, from within that organisation, or another, in order to comply with the terms of the notice.
The code goes on to say that those serving the notice should be aware of that fact and, in so far as is practicable, should ascertain in advance to whom it is "reasonable" to permit a disclosure to be made. We should always bear in mind that this issue comes into prominence only once the conditions for the imposition of a secrecy requirement have been met. The conditions, which are considerable, are set out in Clause 52.
At this stage we resist the notion that the recipient of the notice may himself determine without any reference to the person who served the notice who it will be reasonable for him to copy the notice on to. The imposition of a secrecy requirement will not be a trivial matter. Certain significant thresholds will have to be met. In the event that these thresholds are met, it will be important to keep an element of control over onward disclosure of these notices. It will be perfectly possible for the recipient of the notice to come back to the person who served it upon him to clarify that he can disclose the matter further to effect the notice. That is provided for in Clause 52(9).
However, we cannot go that one step further to permit the person who is in receipt of a notice to take it into his own hands to organise disclosure. That would
12 Jul 2000 : Column 364 seem to eat away at the very heart of the secrecy requirement. I hope that noble Lords appreciate the importance of the secrecy requirement in certain instances. I invite the noble Lord to withdraw the amendment.
Lord Cope of Berkeley: My Lords, I certainly appreciate the importance of the secrecy requirement. I shall ponder that instructive reply. I hope that I shall have the opportunity to ponder it before we reach the later amendments to which the noble Lord referred. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.