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Mr. Oliver Heald (North-East Hertfordshire): The Federation of the Electronics Industry tells me that, at the moment, no one knows how to provide a reasonable intercept capability for the internet, and that it could be incredibly expensive. Has the Home Office found a way of permitting that to happen technically?
Mr. Straw: I accept that there are complications in the techniques, but it is not impossible and a great deal of work is going on. Some parts of internet communications can be intercepted at the moment. The problem is that, under existing legislation, responsibilities apply only to public telecommunications operators. We are trying to relieve the burden which has fallen, by chance, on the large public telecommunications operators and ensure that it is properly spread.
Mr. Bercow: Some of what the Home Secretary has said has been reassuring, but is he aware that businesses have complained frequently over the past three years that there is too little consultation and, too frequently, too little
notice of their requirement to implement new regulations? If the Home Secretary is serious about reassuring business, as I hope he is, will he guarantee that businesses will be consulted for at least three months on any proposed new regulations, and that they will be granted at least three months' notice of any legal requirement to implement new regulations?
Mr. Straw: The concerns of business about the burden of Government regulation go back beyond May 1997--they are timeless. I happen to believe that it is almost certain that a similar regime to that proposed by the Bill would have been put in place had the Conservative party been in power now. We have consulted widely on this Bill, and I published a consultation document last year. Discussions are continuing. I will not be pinned down to a specific time frame but, so far as possible, we want to reach a consensus--it is in our interest to do so.
What we have achieved until now in terms of making this country a safer one has been achieved significantly through the voluntary co-operation of the public telecommunications operators. We cannot sing about this too often--for obvious reasons--but the operators have performed a significant public service. On communications data--to which I shall refer in a moment--what we are doing will relieve a burden on telecommunications operators, and not increase it.
Clauses 16 and 17 replace section 9 of the 1985 Act. The provision rules out from legal proceedings the use of intercept material. The consultation exercise last summer asked for responses on this point, and more individual comments were received about it than any other. Of those who responded--this is never conclusive, but I give the information to the House--two thirds were in favour of retaining the provision. I have considered the matter long and hard, and our provision is unusual internationally. However, I believe that we should follow the balance of opinion. It is significant that section 9--which will become clauses 16 and 17--was recently approved by the European Court of Human Rights in the case of UK v. Jasper.
Chapter II of part I deals with the acquisition of communications data, which are normally provided to investigating bodies under a voluntary regime set up by the Telecommunications Act 1984 and the Data Protection Act 1998. This existing and loosely regulated regime is unacceptable in terms of human rights and because, in certain cases, it has led to unacceptably high demands on the public telecommunications operators.
The Bill sets out in statute precisely what hurdles law enforcement and other agencies must overcome before they can require the data from service providers. The Bill then puts an onus on service providers to provide the information, and allows for them to be compensated--a proper statutory regime which is much to their benefit. The House will recall that, in opposition, I undertook to make this change in a response to my hon. Friend the Member for Cynon Valley (Ann Clwyd) during proceedings on the Police Act 1997.
Part II of the Bill covers the use of intrusive surveillance, directed surveillance and covert human intelligence sources. Those are not new powers, but the provisions in this part of the Bill will put their use on a statutory basis. Part II does not create any illegality in the use of part II techniques, but it will ensure that the use of
the powers is properly regulated. Where such actions are authorised properly under the provisions of the Bill, that will be an answer to any subsequent assertion based on article 8 of the European convention that a person's privacy has been invaded without justification.
Mr. Graham Brady (Altrincham and Sale, West):
I thank the Home Secretary for giving way on that point, because a constituent has raised it with me. Will there be any way after an interception, however long ago it was, for the person whose communication was intercepted to be informed of that fact, so that they could raise the issue and make a complaint if appropriate?
Mr. Straw:
The short answer is no. I am sorry to disappoint the hon. Gentleman's constituent, but I regularly have to write to individuals who face no prospect whatever of being the subject of interception laboriously to explain that fact. I also explain to constituents at my surgeries that, given the weight of the threat from international crime and terrorism, the prospect is remote that we would devote resources to intercepting their telephone calls. However, I then provide no reassurance when I say that I cannot tell them whether their telephone is the subject of intercept because otherwise others who might be the subject of intercept could come along on fishing expeditions. It is logically a difficult position to explain to individuals, and it is difficult for people to understand that they may make a complaint to the tribunal--I shall come on to the changes we shall make in respect of the tribunal--that they may be being intercepted even though it is not possible to tell them whether they are being intercepted. Because it is secret, people are bound to be suspicious, but--to repeat the point made by my hon. Friend the Member for Workington (Mr. Campbell-Savours) and as I believed before I became Home Secretary, and have fully understood since--the powers are operated in a strong ethical and legal framework. That is as it should be.
Dr. Julian Lewis:
Will the Home Secretary clear up the concerns of serious investigative journalists and researchers that some of those regulations might hamper their ability to cover themselves when they are talking on the telephone with people whom they are investigating and wish to keep a record of the conversation? I do not mean the interception by a third party of conversations between two other parties, but the ability of researchers to cover their backs in the course of investigations.
Mr. Straw:
I am not entirely clear what the hon. Gentleman is asking. If he is asking whether journalists are routinely the subject of intercept, the answer is no. The only people subject to intercept are those who come within the terms of the Interception of Communications Act or the Bill. If he is talking about a journalist routinely recording his own telephone conversations, that is not remotely covered by the Bill, although it is a courtesy--to say the least--that if a journalist, or anybody else, is recording a telephone conversation, they should tell the person at the other end.
Mr. Michael Fabricant (Lichfield):
They are obliged to tell.
Mr. Straw:
I believe that that is the case.
Decryption has aroused much interest. Part III of the Bill deals with demands to decrypt data. We consulted on similar provisions published as part of the draft Electronic Communications Bill last July. Encryption itself is vital to the success of the e-commerce revolution, and helps to prevent certain types of crime, such as fraud on the internet. However, encryption can also be used by criminals to frustrate law enforcement. That is happening already, and the problems will increase as the technology becomes more available.
The new decryption power is needed to maintain the effectiveness of existing statutory powers. The limit of what we propose is assisting law enforcement agencies in reading the contents of material they have already lawfully obtained. Where an investigating agency has reasonable grounds for believing that a key exists to decrypt lawfully acquired data, the Bill will introduce a power, with proper authorisation procedures and stringent safeguards, to allow them to require the decryption of that data.
The introduction of a new power was specifically recommended in last year's report on encryption and law enforcement by the performance and innovation unit of the Cabinet Office. The Select Committee on Trade and Industry report concluded that the power would be a useful addition to the law enforcement armoury.
Mr. Brian White (Milton Keynes, North-East):
My right hon. Friend will know that several businesses expressed unease when the Electronic Communications Bill was published that the measure would deter inward investment and e-commerce in this country. How has he tackled that problem?
Mr. Straw:
My hon. Friend will know that before the Bill was published, there was a suggestion, in this and other Governments, that the measure should make provision for key escrow, so that keys could be vested with safe third parties and could therefore be available.
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