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Mr. Rogers: I wish to correct one point made by my hon. Friend. There will be only one extra commissioner under the Bill, because there is already an interception commissioner.
Mr. Cohen: That was not the point made by the right hon. Member for Maidstone and The Weald (Miss Widdecombe), who referred directly to two commissioners. Perhaps the Minister will also clear up that point. In any case, there is still a proliferation of such commissioners and my point is whether any of them will perform a proper scrutiny role.
Mr. Campbell-Savours: I am sure that my hon. Friend has great confidence in Lord Nolan.
Mr. Cohen: It is not a matter of the individuals, but the powers that they have and the systems that are in place. I have much confidence in the members of the Intelligence and Security Committee--my hon. Friend is one--but I am still not especially happy with the outcome of their reports, which have not had the level of scrutiny that I would have liked to have seen from such a committee.
Mr. Heald: Is the hon. Gentleman's memory the same as mine--that the Intelligence and Security Committee has recently employed staff so that it can be more proactive? Does he agree that something along those lines for the commissioner would also be a good idea?
Mr. Cohen: That would be welcome.
I would like to see the whole system streamlined and given teeth and a degree of independence, so that it can give proper scrutiny. Does the system see only what the security services want it to see? Judging by the lack of critical reports, the security services seem to be perfect model organisations. We all know that that is not so. Until we get the scrutiny arrangements right, more legal powers for the security services to do what they like do not seem to be appropriate. Will any of the commissioners be given teeth for their powers of scrutiny?
The public want reassurance that the agencies that are given wide-ranging powers--which, I readily acknowledge, are often necessary--will not abuse those powers. However, the responsibilities of those who act as public watchdogs are spread thinly across an increasing number of organisations. Although the various commissioners probably try their hardest to wield their limited powers, the diverse regulatory structure weakens the protection afforded to individuals.
Mr. Ian Taylor (Esher and Walton):
I am grateful for the chance to speak in a Home Office debate. It is not something that I have done often, but it is obviously an enlivening experience that I shall wish to repeat. My reason for doing so is that there has been a deft transfer of parts of the Bill from the Department of Trade and Industry, in which I was once a Minister, to the Home Office. In fact, the transfer is probably appropriate.
In March 1997, I issued a consultation document on some of the issues relating to the problems of encryption, and how the security services and the police would get access to decrypted plain text. That created a furore which, at the time, I disputed, but--as I said in debate on the Electronic Communications Bill--I have since recanted. It was clearly not appropriate to adopt a statutory trusted third-party system, with a key escrow structure. The Government have been right to listen to industry's demands and introduce this Bill.
The difficulty acknowledged by several hon. Members so far is that the matter is hugely complicated. Although I do not agree with everything that he said, the hon. Member for Leyton and Wanstead (Mr. Cohen) dealt perceptively with the human rights and individual liberty aspects of the Bill. I shall therefore focus on matters that I used to understand when I was a Minister.
The technology has progressed apace. There is now a proliferation of communications service providers, and they can communicate in a wide variety of ways. The old way used to be by fixed-link telephony. I hope that the Minister will tell the House whether some of the restrictions placed on the old BT-Mercury duopoly that operated until 1991 still apply. Is it still a requirement that the relevant companies' chairmen or chief executives must be British? I remember having to deal with the consequences of that requirement when there was a prospect of an American coming to take charge of Cable and Wireless. I had to ensure that the chairman remained British.
Those idiosyncrasies had a purpose at the time. The House understood that they were important, as my right hon. Friend the Member for Bridgwater (Mr. King), who chairs the Intelligence and Security Committee, will confirm. However, they have been well and truly bypassed. I recall signing 150 licences for international telecommunications, and hundreds of others for resale purposes. A multiplicity of companies have entered the sector. Some are small, some large, and some are subsidiaries of other companies. The result is that the old way of doing things, by gentleman's agreement almost, has long since gone.
I mentioned the wide variety of service delivery methods. As well as fixed-link telephony, wireless and mobile communications are also commonplace now. There will soon be fixed-link wireless telephony systems, and cable is increasingly taking over telephone and television transmission. It shows how long it takes to realise a good idea that today just happens to be the day of the auctions for the third-generation universal mobile telephone system, as I structured and devised that auction system in 1996. It is good to see one's baby born, but the process is elephantine.
Mr. White:
Is the hon. Gentleman aware that the former Conservative Front-Bench spokesman on trade and
Mr. Taylor:
I cannot claim always to have given birth to beautiful babies, but the parliamentary draftsman must have got in the way of a brilliant idea.
The process is exciting, but it has taken time because of the need to achieve international standards. I do not want to get sidetracked by the specifics of the technology, but the important point is that full multi-media access will be available to users of mobile phones. That will cause problems for the services that are required to carry out interception.
The industry is international. The Bill contains provisions to determine where telecommunications services are located, and whether a service is known to be delivered from outside this country. However, those technical points can be revisited in Committee if necessary, and I believe that some points at least are worthy of clarification.
The state has an interest in protecting its citizens from criminals and transactions that are designed to undermine the legal framework. These matters can also be extended to terrorism, where it is important that the Government have powers to intercept on clearly stated grounds. The Bill will need to be evaluated carefully in Committee, but the process of stating clearly the terms on which a particular interception can be made should be set out. That is right and proper.
Part III of the Bill deals with the investigation of electronic data protected by encryption. Bearing in mind that the companies involved in the industry are very varied, my concern is that the proportionality of the burden placed on them is openly discussed and understood. Unless it is, there will be considerable industry opposition. There is no doubt that companies that have moved into this sector have not taken this into account. They may not have budgeted for it, or understood some of the technological changes that must be taken on board if they are to conform to these provisions.
It will be important to deal in Committee with matters on which I am sure the Home Office has consulted, but to which I have heard reactions from the industry. With regard to previous drafts of the Electronic Communications Bill, there were concerns in the banking and financial communities, which operate in the global market, about who was being given the powers to request the disclosure of keys. This Bill refers to any person with appropriate permission. I am not a lawyer, and I am sure that lawyers will have a field day in considering these matters. It is essential that the companies that are subject to these laws understand who they will be giving their private keys to because of the need to protect their confidentiality and commercial-in-confidence criteria. Are those fully understood by the people who will be asking to have private keys and decryption provided? I would be happier if the Home Office were more explicit in expressing its understanding of these matters. Perhaps someone in the Department of Trade and Industry, as I was, understands the importance of subjects such as commercial-in-confidence. I would be grateful if the Minister were more open about it.
The Home Secretary had an interesting exchange earlier about whether he could tell anyone that his telephone was being tapped. I quite understand his answer. Nevertheless, when it comes to confidence in the world of global commerce, it is important to know whether encryption has been entered into and looked at, and whether the private key has been sourced. The inability to tamper with a system is vital, as is confidence that, once encrypted, it is safe and not likely to lead to any commercial loss of security. The integrity of private keys must not be unreasonably jeopardised. If they are, companies will have to consider factors such as the need for global key revocation and change, which will be costly. Those factors are in addition to the existing cost element.
The Home Office stated that it might contribute to the costs of interception, heavily underlining the word "might". I am not quoting exactly from the Bill, but I am sure that the Minister knows what I am saying. There is no obligation for the Government to pay up. If those matters are left unclear during further discussions on the Bill, some companies will decide to locate offshore under regimes with less intrusive security measures.
Other hon. Members have put questions about definitions. In clause 52, a definition of "key" is provided that may be a little too vague for comfort. It states that
There are other problems of definition in the clause--for example, in subsection (4) reference is made to "intelligible" and to something
At the beginning of my speech, I should have mentioned that I have various technology interests outside the House, and they are declared in the Register of Members' Interests. Although I do not think that they are relevant to the debate, I should have taken the precaution of declaring them at the beginning. However, my interests do enable me to understand that Bills such as this need wide public discussion. We have visited the human rights difficulties on several occasions, in respect of terrorism legislation and many other matters. Such debates are in the normal realm of our proceedings in the Chamber. However, some of the technological problems will be difficult to grasp--for example, because of the way in which companies increasingly sift their own data through test marketing or the use of cookies in a system to find out which data are being used and how.
We must keep such matters separate from the Bill. The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) made it clear that there are large distinctions between a private and a public telephone system. However, private telephone systems can now be global; they do not exist merely inside an organisation but within a building, where new technological breakthroughs such as Bluetooth mean that almost everything connects with everything else. Currently, it is virtually possible not only to communicate between one system and another within a building, but to do so globally through intranets and private network systems.
There will be problems if the Bill catches people who are doing things in a corporate environment that they had not realised would be subject to the scrutiny proposed by the Government. Industry needs to understand fully what the Government intend. As one would expect, the Government's intentions are fairly openly declared in the Bill. Nevertheless, the purpose behind them sometimes needs better explanation.
It is vital that the cost elements and the burdens on individuals are properly understood. When I intervened during the speech of my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe), my purpose was to obtain reassurance from the Minister that the attempt to make the penalties as draconian as possible would not mean that almost every company would want to ensure that it placed its private keys with some trusted third party, so that are forced back to a key escrow system. I do not think that the Minister intends to do that, but I should like clarification on that point.
Such matters should be properly scrutinised in Committee. I wish the Bill well on Second Reading.
"key", in relation to any electronic data, means any key, code, password, algorithm or other data the use of which--
and so on. That seems to be a pretty general definition, and unless it is tightened up it will cause considerable problems.
being put into an intelligible form.
That provision needs to be examined closely--although not necessarily redrafted--to test the full meaning so that people who may be subject to it know what they are being asked to do.
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