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Ms Hewitt: As the hon. Member for Rutland and Melton (Mr. Duncan) said in moving his amendment, we had another very useful debate in Committee on subsection (2). As both he and the hon. Member for Sheffield, Hallam (Mr. Allan) have indicated, there was agreement across the Committee about the intention of the original clause. I said that I would reconsider the wording and have, as a result, come forward with amendments Nos. 13 and 14.
The hon. Member for Hallam asked why we cannot simply drop from the end of the subsection the words
I offer the House the helpful example that was provided for me by my officials--it relates to chocolates. If I were to say that references to the provision of chocolates do not include references to the supply of coffee creams, except where that is integral to the provision of the chocolates not consisting in such a supply, coffee creams would not be included unless they were supplied as part of a wider range. That is what we are doing in the measure, but if those crucial words at the end of subsection (2) were omitted, the lawyers would go round in circles.
The clause, as redrafted by the two Government amendments, achieves its purpose in the simplest and most elegant form and with the fewest possible words. In the light of that explanation, I am sure that the hon. Member for Rutland and Melton will want to withdraw his amendment.
Mr. Duncan:
I have been thinking about lots of things, but as the Minister has mentioned chocolates, perhaps, one day, I shall deliver her a box of chocolates by dramatically swinging through a window--as in the famous advert.
The Minister's support, in principle, for our proposals is right. We accept that the Government's amendments meet the requirements set out in our amendment, and we support the Government's amendments. I therefore beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 13, in page 6, line 2, after "service" insert "do not".
No. 14, in page 6, line 3, leave out from "hardware" to "of" in line 4 and insert--
Ms Hewitt:
I beg to move amendment No. 1, in page 6, line 34, leave out "certified either" and insert--
Mr. Deputy Speaker:
With this it will be convenient to discuss the following: Government amendments Nos. 2 and 3.
Ms Hewitt:
During the second sitting of the Standing Committee, on 14 December, I indicated to hon. Members that, with the help of parliamentary counsel, I would re-examine the drafting of subsection (3). I have done so and thus have pleasure in introducing amendments Nos. 1, 2 and 3.
In Committee, the debate on this subsection focused on the certification process, under which, in public key cryptography, the public key of an individual is certified as belonging to him or her. The debate also touched on the language that was used in the subsection, especially the use of the word "certified". The amendments will help to clarify both those matters.
Amendment No. 1 seeks to replace the words "certified either" with the phrase
Amendments Nos. 2 and 3 address the other issue raised in Committee in amendment No. 51--whether evidence of the certification of a public key was admissible under clause 7. The wording in the new amendments will put the matter beyond doubt. Amendment No. 2 specifically includes the verification of the signature in those matters deemed to be admissible under subsection (3)(b). That verification is, of course, performed by the public key.
Amendment No. 3 makes it clear that any one of those processes or procedures is admissible in its own right, as well as when it is combined with other facts. I hope that that explanation is entirely comprehensible to Opposition Members; I commend the amendments to the House.
Mr. Duncan:
Once again, the Government amendments support the amendments that we tabled in Committee, about which I wrote to the Minister on 5 January. As she rightly points out, the main concern arises from the fact that, as we confront new technology and try to embody in law provisions that relate to it, we run out of accurate words to describe what the legislation is supposed to mean. As the reports of the Standing Committee show, our concern is that the word "certified" became ambiguous as it was used through the Bill, and hence legally unclear.
We wanted an alternative phrase or verb to replace the word "certified" in the clause so that that ambiguity could be removed. At one point, I discussed with the Minister the use of the word "validated". However, I accept that the phrasing of the amendments covers what we meant by "validated", or the meaning that we wanted to be attributed to "certified". We support the amendment; it achieves what we asked the Minister for. I hope that it will receive the support of both sides of the House.
Amendment agreed to.
Amendments made: No. 2, in page 6, line 36, leave out
and insert--
No. 3, in page 6, line 38, leave out "as" and insert--
Mr. Duncan:
I beg to move amendment No. 12, in page 13, line 37, leave out--
and insert
Mr. Deputy Speaker:
With this it will be convenient to discuss Government amendment No. 4.
Mr. Duncan:
The amendments are crucial because of the debate that surrounded the origin of the Bill and the concerns of all those in the industry as to what the measure might entail. Those Members familiar with all the issues will know that, as people began to wrestle with the ramifications of e-trade and the revolution that is going on, they were anxious that the Government might demand that the key to the de-encryption of material be deposited with a third party.
The debate on key escrow raged for some time. Foremost among the original proponents of key escrow was my hon. Friend the Member for Esher and Walton (Mr. Taylor). However, the debate has moved on--as has my hon. Friend, who has changed his mind because we have learned much more about the matter. All credit is due to him for that.
It was thus crucial that key escrow should not be included in the Bill. There would be no power for the Government, or for some agency, to demand that the key--as between public and private--for the de-encryption of material could be deposited with a third party. However, we were concerned that key escrow might be introduced through the back door.
We can accept that if someone is transmitting data--for example, a taxpayer who is filling in his tax return and sending it to the Inland Revenue--there must be some provision, and a reasonable expectation, that the data he is sending should be intelligible to the recipient. In the case of private information, some of that data might be encrypted--for good reasons. It would not be acceptable for the sender of that information to say, "I have encrypted the information, but don't worry it's all there. It's tough if all you get on your screen is hieroglyphics that you can't read--it's up to you to work out how to turn it into proper data, which can be read by anyone in the normal way." Therefore I quite understand that this part of the Bill places an obligation on the sender of information to send it in a form that can be properly deciphered and understood by the recipient; otherwise, staff at the Inland Revenue will find that everyone sends them hieroglyphics and says, "I am sure you could decipher it, if only you tried."
However, the wording of clause 13(2)(b) looked a bit dodgy to us. It looked as though a power might suddenly be introduced, on the sly, enabling the Government to demand the deposit of a key. I accept that, if the information is intelligible to the recipient, they effectively have the key already. I also accept that, if they require, and can reasonably require, that information to be intelligible, if the key cannot be given they should be given a power to render that information intelligible. Therefore, I seek from the Minister an assurance that this
is not key escrow through the back door--that the powers are very limited, and are confined to a reasonable process by which the receiver of information can establish the means of reading or deciphering the information that is being sent.
"not consisting in such a supply".
I asked my officials the same question when I was considering the amendments. If we abandoned those words, the problem is that we would end up with a completely circular definition of cryptography support services.
"except where the supply is integral to the provision".--[Ms Hewitt.]
"made a statement confirming that".
"made a statement confirming that".
That phrase is slightly longer, but will make it clear that we are talking about what a person will want to establish, rather than about a specific technical process. By avoiding the use of the word "certified", we shall avoid the confusion, which we came across in Committee, between the IT industry's use of the words "certified" and "certificate", and the legal, or parliamentary draftsman's, use of the words.
"the means of producing or communicating"
"a means of producing, communicating or verifying".
"is (either alone or in combination with other factors)".--[Ms Hewitt.]
"deposit a key for electronic data with"
"render electronic data intelligible to the satisfaction of".
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