House of Commons Hansard Debates for 4 May 1990

Mr. John Marshall (Hendon, South) : Does my hon. Friend agree that it might be useful to hack into the computers that so inaccurately forecast the local election results in London, particularly for the constituency of my right hon. Friend the Member for Finchley (Mrs. Thatcher), where the Conservative party gained seats, rather than lost them, as forecast by the Labour party's computer, and for the London borough of Ealing, where the Leader of the Opposition now has a good right-wing Conservative council that will reduce his community charge?

Mr. Deputy Speaker : I am sure that the hon. Member for Romsey and Waterside (Mr. Colvin) will not be tempted by that intervention.

Mr. Colvin : I am most tempted, but in the interests of progress I will resist the temptation.

Mr. Ian Bruce : It is possible that hacking has occurred. The computer predictions of the BBC or ITV yesterday that if there were a general election there would be a 186 majority for the Labour party suggest that somebody had already hacked into the computer. When the results came in, we saw how inaccurate those predictions were.

Mr. Deputy Speaker : The hon. Member for Romsey and Waterside had been as good as gold until those interventions were made.

Mr. Colvin : I have been thrown. I was trying to explain the effects of section 9(2) of PACE. I shall try to get back into my stride after those irrelevant but welcome interventions, which prove that yesterday people voted on the performance of local authorities rather than the policies of the Government.

Miss Emma Nicholson : Does my hon. Friend know that the Data Protection Registrar has determined that 21 local councils have overstepped the mark in obtaining information on the community charge? Is he aware that the bulk of those councils are Labour, or certainly were?

12.30 pm

Mr. Colvin : That is an interesting point to put on the record. I am sure that the appropriate authorities will take action as a result of that news.

The purpose of section 9(2) of PACE is not to prevent the police from searching a room or building if it is thought that, inter alia, excluded material might be in it

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but to stipulate that such material must not be the subject of the warrant. The subject of a warrant to investigate clause 1 offences would be material that would prove who had committed the offence. It is conceivable that the police, when executing a warrant, might happen upon excluded material. That would not nullify the validity of the warrant but would simply mean that such material should either not be seized or, if it inadvertently was, that it could not be used as evidence. Were that not the case, any warrant could be opposed on the pretext that excluded material was contained in the premises for which it was issued.

I hope that I have reassured my hon. Friend the Member for Torridge and Devon, West and that if she catches your eye, Mr. Deputy Speaker, and obtains permission to reply she will withdraw new clause 2. The hon. Member for Leyton has made the case well for accepting amendments Nos. 3 and 16, which substitute circuit judges for justices of the peace in respect of issuing warrants under clause 14. Those amendments will be moved formally later when we consider clauses 14 and 16 and I look forward to hearing the Government's view on them.

I cannot accept new clause 3 or any of the remaining amendments, on which we have had a good and constructive debate, for reasons that will be known to hon. Members. I hope that they will not feel compelled to press them.

Mr. Douglas Hogg : My hon. Friend the Member for Romsey and Waterside (Mr. Colvin) accurately expressed the views that I have formed about the amendments and new clauses. Therefore, it would be to the convenience of the House if I expressed my views briefly and in summary form.

Like my hon. Friend the Member for Romsey and Waterside, I commend to the House amendments Nos. 3 and 16, which were tabled by the hon. Member for Leyton (Mr. Cohen) and to which my hon. Friend the Member for Walthamstow (Mr. Summerson) put his name. For the reasons given by my hon. Friend the Member for Romsey and Waterside, I am unable to accept the remainder of the new clauses and amendments in this group. However, it is right that I, on the Government's behalf, should express to my hon. Friend the Member for Romsey and Waterside our gratitude not merely for carrying the Bill forward but for doing so with considerable distinction and for expressing his views with considerable lucidity and elegance.

My hon. Friend the Member for Torridge and Devon, West (Miss Nicholson) deserves considerable credit for bringing this matter to public attention. She was, rightly, the first to speak in this morning's proceedings, so it would perhaps be appropriate if I dealt first with the two new clauses and one amendment in her name. As she well knows, I am sorry to disappoint her by not being able to accept them. The arguments of my hon. Friend the Member for Romsey and Waterside are persuasive.

On new clause 2, I start from the presumption that one should not extend powers of search unless it is essential to have those powers of search to prove that a criminal offence has been committed. I have been persuaded that it is necessary to increase the rights of search in respect of clause 1 offences. I know that--the hon. Member for Leyton reminded me of this--I expressed scepticism about that fact when the matter was considered by the House on

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Second Reading. I have concluded that, partly because of the arguments advanced by my hon. Friend the Member for Torridge and Devon, West, in connection with clause 1 offences it is essential to have an extended right of search. The justification for that was touched on by my hon. Friend the Member for Romsey and Waterside when he said that, in respect of clause 1 offences, often the only evidence one can obtain is to determine the identity of the person occupying the premises from which it is possible to establish that the relevant communication was transmitted is that which is obtainable following a search. I do not feel that the same applies to clause 3 offences.

Many clause 3 offences are also clause 1 offences--they are subsumed within the clause 1 acts. Consequently, a right of search also arises under clause 14 in respect of a large number of clause 3 offences, because they involve clause 1 acts. Moreover, all clause 3 offences are also arrestable offences. The ordinary rights of search that arise upon an arrest for a clause 3 offence will automatically arise. Some clause 3 offences will also be serious, arrestable offences, therefore, the pre-emptive rights of search provided for in PACE will apply to them.

I accept that a small minority of cases will not fall under one of the heads which I have itemised. In the great majority, where the police could properly exercise a right of arrest, they will also be able to obtain a clause 14 search warrant. To put it another way, I find it difficult to believe that there are many cases in which it would be possible to obtain a warrant for search under clause 14 where the police could not properly effect an arrest under ordinary powers.

A small minority of cases may not be covered by what I have said. However, we need to be extremely careful about extending the rights of search. In the vast majority of those residual cases the police, by proceeding with the ordinary process of investigation, would be able to establish sufficient evidence to bring the charge home. However, nothing in this place or elsewhere is written in concrete and the matter must be kept under constant review. Relevant statutes will be enacted in future and there is bound to be a Criminal Justice Bill from time to time. If my hon. Friend the Member for Torridge and Devon, West is correct, I anticipate that the Government of the day may want to address the problem subsequently.

New clause 3 was moved eloquently by my hon. Friend the Member for Torridge and Devon, West. I agreed entirely with what my hon. Friend the Member for Wanstead and Woodford (Mr. Arbuthnot) said on the point. The new clause refers delicately to "surveillance", but my hon. Friend the Member for Wanstead and Woodford was right when he characterised it as telephone tapping. I agreed with my hon. Friend the Member for Romsey and Waterside when he pointed out that, without obtaining additional powers, it is already possible to mount many relevant surveillances, partly because under the Interception of Communications Act 1985 that can be done with the consent of the recipient and partly because, without the necessity for additional powers, the fact of the transmission, the duration and date can already be obtained by surveillance methods.

The House has long been cautious about giving to any authority the right to maintain telephone tapping of a communication. That is why the warrant of the Home

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Secretary is required under the 1985 legislation. Any hon. Member would be slow to ask the House to make an exception in this case. We may come back to the matter in future, but I am confident that we should not do so today.

I agreed with the view of my hon. Friend the Member for Romsey and Waterside that amendment No. 18 is unnecessary. The fact that a computer may contain excluded material is not a reason for refusing a clause 14 warrant, although, of course, if the police wanted to make use of the excluded material that they found, they might have to use the special procedure set out in the Police and Criminal Evidence Act 1984.

The effect of amendments Nos. 3 and 16 is to provide that the clause 14 warrant should be issued only on the authority of a circuit judge. I understand the arguments in favour of that. There are precedents for doing that, and to carry the maximum consent for the Bill I commend the two amendments to the House.

I find the argument in favour of change advanced by my hon. Friend the Member for Wanstead and Woodford the most persuasive. It is not a matter of the qualifications of the justice of the peace or of the judge. The two could be equally well qualified, and I make no differentiation between the two. My hon. Friend the Member for Wanstead and Woodford was correct in saying that by entrusting that responsibility to a circuit judge we are marking the importance that we attach to the process. That is a persuasive argument. For that reason alone, I am content to accept the advice of my hon. Friend the Member for Romsey and Waterside.

Let me refer briefly to amendments Nos. 5 and 6, which were spoken to so eloquently by the hon. Member for Leyton. I agree with my hon. Friend the Member for Romsey and Waterside : it is entirely right that the police should have a right of search when a circuit judge has been persuaded that an offence is likely to be committed. There are many circumstances in which the House would require the police to have a pre-emptive right of search, arising on sufficient and credible grounds. This is such a case, and I hope that the hon. Member for Leyton will not consider it necessary to press the Amendments to a Division.

12.45 pm

Amendment No. 10 was also tabled by the hon. Member for Leyton, and again I agree with what was said by my hon. Friend the Member for Romsey and Waterside. It would not be right to exclude relevant, credible and admissible evidence--perhaps in the form of documents--from the scrutiny of the courts, but that would be the effect of the hon. Gentleman's amendment. In many cases, it would be difficult to determine how many people were residing in the premises for the purposes of the amendment. The concept of residence is not easy. For instance, my daughter--I am happy to say--is at university, but frequently returns to my house. Is she residing in my house for the purposes of the hon. Gentleman's amendment? That is a difficult question, and I am not sure of the answer. I raise it not to give the answer but merely to illustrate the type of problems that will arise when an application is made to the court.

Amendment No. 7 is also in the name of the hon. Member for Leyton. It seeks to exclude the Security Service from the scope of the Bill. Again, I am persuaded by what was said by my hon. Friend the Member for Romsey and Waterside. We all remember the attention that was given to the Security Service last year when the

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Security Services Act 1989 was debated. I don't believe that the time is right for us to disturb the extremely delicate balance that was achieved by that Act, or that this is the appropriate legislation. Although I congratulate the hon. Member for Leyton on taking the opportunity to raise the matter, I hope that he will not press his amendment to a Division.

My hon. Friend the Member for Havant (Sir I. Lloyd) made an interesting intervention, which had me worried for a moment, about whether the word "output" was appropriate. I have some sympathy with the hon. Member for Kirkcaldy (Dr. Moonie), who suggested that it was a horrible word. He is probably right, but it is a relief to see a definition section in the Bill. That precisely answers the question asked by my hon. Friend the Member for Havant. Although it is in an unusual place, the definition section is there --in clause 17(4)(a) and (b).

I have tried to deal with the various points that have been raised, especially those of my hon. Friends. In substance, I strongly commend amendments Nos. 3 and 16 to the House. I hope that the House will accept them, and that it will not be necessary to put any other new clause or amendment to a Division.

Miss Emma Nicholson : My hon. Friend the Member for Romsey and Waterside (Mr. Colvin) described me as loosely representing the views of Scotland Yard. I should like to put it on record that my interest in this matter is that United Kingdom business and industry should flourish in the electronic era, and to do so it will need a little protection. I am also especially interested in the health and growth prospects of the software industry, and concerned that they, too, should burgeon. The industry already has a European value of £32 billion. Perhaps my hon. Friend the Member for Romsey and Waterside should know that Italy already has extensive anti-hacking laws, which it enforces thoroughly, although alas, the same cannot be said of milk quotas.

Through the good offices, energy and wisdom of my hon. Friend the Member for Romsey and Waterside, we are now moving rapidly towards the criminalisation of hacking and the planting of viruses. That is why, to me, the matters remaining to be dealt with centre on police effectiveness in enforcing the provisions of the Bill. Both my hon. Friend the Member for Romsey and Waterside and my hon. and learned Friend the Minister of State suggested that only a relatively small proportion of the legislation would be "running free", to use the same phrase as my hon. Friend the Member for Romsey and Waterside--that only a small minority of cases would not be touched by the Bill as drafted.

My hon. Friends agree that the Bill is not comprehensive enough to catch all the criminals who will commit the offences defined in it. We differ only on the size of the category for which it will not work. I believe that it will include by far the larger proportion of potential cases--perhaps nearly all of them. Time will prove the Bill to be unenforceable in its present form, and the police will have a catalogue of crimes to bring to justice. In 18 months' time, the worth of new clause 2 will become apparent and its purport will be adopted, perhaps in a new criminal justice Bill or by means of solid and substantial amendments to the present Bill. New clause 3 and amendment No. 18 might also properly be discussed then, although I recognise and wholly accept the intellectual and

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emotional difficulty of giving transmission lines different legislative treatment according to the material that they carry. My hon. Friend the Member for Romsey and Waterside was persuasive. He has succeeded in convincing me that, if I press my new clause to a vote, the consequential loss of time--and perhaps a lack of numbers--may extinguish the Bill. My hon. and learned Friend the Minister led me to the same conclusion. I cannot take such a course because, however defective the Bill may be in terms of enabling the police to catch criminals, it will allow the police co-operative powers internationally and thus it will start to bring the United Kingdom into the crucial business of protecting the information marketplace. I believe that we will go further later but, for the time being, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Clause 1

Unauthorised access to computer material

Mr. Cohen : I beg to move amendment No. 1, in page 1, line 19, at end add--

(4) No offence under this section is committed by any person if the computer that performs the function is the computer to which access is secured or intended to be secured, and

(a) the computer controls equipment used only for personal, domestic or recreational purposes, or

(b) the computer has been lost and the access in question is secured, or intended to be secured, in order to establish ownership of the computer, or

(c) the place where the computer is located can be used by unauthorised persons, and the access in question is secured at a time when that place is authorised for use by unauthorised persons.'. Mr. Deputy Speaker (Sir Paul Dean) : With this, we may take amendment No. 2, in page 1, line 19, at end add--

(4) For the purpose of this section, it shall be a defence to prove that the access in question was in the public interest.'.

Mr. Cohen : I shall try not to delay our proceedings. Amendment No. 1 would introduce into the Bill a definition of a "computer". I made several attempts in Committee to get a definition included, or at least to restrict the extent of the problems that will arise because no definition is included. As I said on Second Reading, that is a flaw in the Bill.

In Committee and on Second Reading, I said that there was a danger that a section 1 offence could apply to a variety of consumer electronics and domestic appliances that have some computing functions. At the moment, that could apply to a long list of appliances which I have listed in amendment No. 8. My opinion is shared by the well-respected barrister, Alistair Kelman, who is an expert on computer law and an occasional adviser to the police on computer-related crime. In an article in Connexion on 21 February, he wrote :

"The Bill may throw up some unlikely hackers if it survives unamended. These could include those who fax other people's letters to third parties without the author's permission and neighbours who use washing machines and microprocessors without prior consent." That is the point I have been making : it would be absurd for that to happen.

The definition will be a problem in future, but we should try to narrow it down now, and that is the purpose of my amendments.

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According to amendment No. 1, only one computer would be involved and if that was used

"for personal, domestic and recreational purposes",

no section 1 offence would be committed. Similarly, if a computer had been lost and access to it was obtained to establish ownership, that would not be an offence. If there is no proper definition, many problems will arise. I am sure that it is not the sponsor's intention that the Bill should apply to washing machines and microprocessors, but there is a danger of that occurring in future.

Amendment No. 2 provides that

"it shall be a defence to prove that the access in question was in the public interest."

Amendment No. 2 is important, because it follows the line adopted by the Law Commission report in 1981 on breach of confidence. That report recommended the need for a public interest defence. That would be a useful addition to the Bill.

In that regard, we must bear in mind the case of the journalist, Mr. William Goodwin, aged 24, who is a trainee reporter with a trade magazine called The Engineer. He received a telephone call that divulged confidential company information. On checking the facts with the company, he received an injunction. Despite appeals to the House of Lords, on 10 April he was fined for refusing to disclose his sources.

That decision by the Law Lords has been severely criticised. A Guardian editorial on 11 April stated :

"Only the English judiciary with their narrow and restrictive approach to free speech could have ruled in favour of commerce. British courts have a tawdry record in defending a free press. They have already been reversed in the Distillers and Harman cases, and Spycatcher will shortly follow. Once the Goodwin case reaches Strasbourg, it will be judged in accordance with article 10 of the European Convention on Human Rights which recognises the importance of a free press in a democratic society. Though it has never ruled on disclosure of sources, its record leaves no doubt that the English courts will once again be found in breach of the convention." That view is supported by The Economist which stated in that same week :

"Under the common law of confidentiality, a company can stop a paper publishing news improperly leaked (for example, by an employee or from a stolen file), unless the paper can demonstrate an overriding public interest (for example, the revelation of wrongdoing). The company will insist that publication would do it dire harm. The judge must weigh the rival interest."

That is my view, as shown in amendment No. 2. It is important to try to defend whistleblowers who are acting in the public interest and who are performing a public service.

That has happened in three cases. One was that of an employee of a drugs company which was dumping drugs, banned in the west, in the Third world. An employee informed the Inland Revenue that his employer, a major insurance company, was defrauding the taxpayer. Another employee informed the Ministry of Defence that his employer, a contractor, had been grossly overcharging. In those three cases, the public interest should be a defence that the courts could weigh. 1 pm

I shall give the House two examples. A journalist might receive a phone call during which the caller says, "I am taking a risk in telling you this. However, if you use this number and a password, dial into the computer and read

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the file, you will find evidence of a disgraceful event that should be made public." Let us suppose that the journalist does that, and a story is printed about the wrongdoing. By doing that, he is condemning himself to what will be a section 1 offence, even though he is acting in the public interest.

Let us suppose also that a journalist receives a smart card--not a piece of paper--containing certain data, and that he puts it into his computer to discover the information that it contains. As soon as he does that, he commits what will be a section 1 offence, even though he is acting in the public interest. What will be a section 1 offence could become the equivalent of the old and discredited section 2 offence under the Official Secrets Act 1911. Surely we do not want to go down that road.

The public interest defence should be included in the Bill, and the courts could then decide whether that defence outweighed the offence that had been committed. As The Economist observed, the whistleblower still has to establish that a wrongdoing was involved in leaking information. I have introduced a reasonable amendment so that we do not drift into replacing section 2 offences under the 1911 Act with what will become section 1 offences.

Mr. Colvin : I listened carefully to the hon. Member for Leyton (Mr. Cohen). He talked about the three different categories of exemption, the first being gaining unauthorised access to "computer controls equipment used only for personal, domestic or recreational purposes."

Let us suppose that the "equipment" is the radar or navigation equipment of a small aeroplane. Unauthorised access to that equipment could be extremely serious. Secondly, some computers may be used for dual purposes, for both personal and non-personal use. As drafted, the amendment would provide that those who access the computer for whatever purpose would not be guilty of an offence under clause 1. The second exemption of lost computers for which the amendment provides is surely not necessary. Unless there were a clear instruction to the contrary, an individual--someone in authority, or the police, for example--would reasonably assume that the owner of the computer would want it to be traced. Accordingly, I do not think that the second exemption is required.

The hon. Gentleman's third exemption would mean that an offence would not be committed if the place where the computer was located could be used

"by unauthorised persons at a time when that place is authorised for use by unauthorised persons."

That exemption would surely create a legal loophole that we would not wish to enshrine in an Act. It would allow those who have authority to be in a room--for example, office cleaners late at night--to be able to gain access to a computer that is in the room without committing an offence. It would go even further. Anyone who entered the room when the cleaners were allowed in would be able to access the computer with impunity. A dishonest employee could stay behind for that purpose. The exemption would create a most undesirable loophole. On the basis of those points, I hope that the hon. Gentleman will withdraw his amendment.

Amendment No. 2 makes provision for those who commit clause 1 offences to escape conviction if they can prove that they were acting in the public interest. It is most undesirable to introduce a general and vague public interest defence. The result would be to create a criminal

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offence that was so weak and uncertain as to call into question its very existence. The Bill must state clearly and precisely what would be the predictable consequences of committing the offences it creates.

The hon. Gentleman suggests that, even though the mischief identified in clause 1 has been done, there is some differently perceived and wider interest that, in effect, means that the mischief does not matter. Surely it always matters. Such an exemption would mean that anyone--he mentioned journalists--could hack into a computer if, in his personal judgment, however misplaced, he thought that he was assisting some general public good. That undermines the offence and runs counter to the whole purpose of the Bill.

I remind hon. Members that we are not talking about competing or balancing interests, as under civil law. Still less are we trying to reopen the 1989 debate on the Official Secrets Act. We are talking about outlawing and deterring unauthorised access to computers, and in particular what should be the predictable consequences of that activity. A public interest defence had no place in such a scheme. I hope that the hon. Gentleman will not feel compelled to press his amendment.

Mr. Douglas Hogg : I profoundly agree with my hon. Friend the Member for Romsey and Waterside (Mr. Colvin). I understand the argument of the hon. Member for Leyton (Mr. Cohen), but I hope that he will feel that the case put by my hon. Friend is sufficient to persuade him not to press the amendment to a Division.

Mr. Cohen : I take the point, and I shall not press my amendment. However, I hope that my point about the public interest will be picked up at some future date. We may well have to return to it in relation to this Bill. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn.

Clause 8

Relevance of external law

Mr. Douglas Hogg : I beg to move amendment No. 13, in page 6, line 16, leave out

in their opinion the condition is not satisfied'

and insert

, on the facts as alleged with respect to the relevant conduct, the condition is not in their opinion satisfied'.

Mr. Deputy Speaker (Mr. Harold Walker) : With this we will discuss Government amendments Nos. 14 and 15.

Mr. Hogg : These are splendidly technical and wonderfully complicated amendments. I shall summarise the effects of amendments Nos. 13 and 14. Clause 8 provides that offences are triable under clause 4(4) provided that the act complained of would involve the commission of an offence under the law where it was intended to take place. Clause 8(5) provides for a presumption that the act complained of is unlawful unless the defendant serves a counter notice requiring the prosecution to prove illegality.

On further consideration of the Bill, it was felt that it might have the effect of compelling a defendant who did not service a counter notice to accept both the acts complained of and the criminal intention attributed to

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him. That was not the purpose of the Bill, and out of an abundance of caution this group of amendments has been introduced.

Amendment No. 15 deals only with Scotland. It would enable the prosecution to present oral or documentary evidence during the hearing, which would otherwise be inadmissible because the defence had not given the prescribed notice in advance. As I said, the amendments are technical and complicated, but I hope that the House will accept them.

Amendment agreed to.

Amendments made : No. 14, in page 6, line 18, at end insert-- (5A) In subsection (5) above "the relevant conduct" means-- (

(a) where the condition in subsection (1) above is in question, what the accused intended to do or facilitate ;

(b) where the condition in subsection (2) above is in question, the agreed course of conduct ; and

No. 15, in page 6, line 21, at end insert--

( ) If by virtue of subsection (6) above a court of solemn jurisdiction in Scotland permits the defence to require the prosecution to show that the condition is satisfied, it shall be competent for the prosecution for that purpose to examine any witness or to put in evidence any production not included in the lists lodged by it.'.-- [Mr. Douglas Hogg.]

Clause 14

Search warrants for offences under section 1

Amendments made : No. 3, in page 8, line 36, leave out justice of the peace'

and insert circuit judge'.

No. 16, in clause 16, page 11, line 4, leave out The reference in section 14(2)' and insert--

In section 14--

(a) the reference in subsection (1) to a circuit judge shall be read as a reference to a county court judge ; and

(b) the reference in subsection (2).'. --[Mr Cohen.]

Clause 17

Interpretation

Miss Emma Nicholson : I beg to move amendment No. 12, in page 11, line 44, after computer', insert

or by any other means.'

I have suggested to my hon. and learned Friend the Minister outside the Chamber that as clause 3 creates the offence of the unauthorised modification of computer material, clauses 3(6) and 17(6) may create a loophole that my hon. and learned Friend and my hon. Friend the Member for Romsey and Waterside may care to consider.

The question is of the back-up of computer data, normally in a secure location separate from the main system. I wonder whether the fact that the material is held at a separate location, away from the main computer, may mean that it will not be covered by the legislation--so that if someone physically attacks the back-up data, by exposing it to magnetism, for example, that action will not constitute an offence.

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