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5.39 pm
Mr. Tom King (Bridgwater): The House is familiar with the considerable technical and ministerial experience that my hon. Friend the Member for Esher and Walton (Mr. Taylor) has in this subject. He raised serious issues that our consideration of the Bill will need to address.
I am the Chairman of the Intelligence and Security Committee, which the House charges with responsibility for the intelligence agencies. The Bill is of direct interest to the agencies and to the Committee because it deals with several matters that go to the heart of their activities. Other hon. Members, including the hon. Member for Southwark, North and Bermondsey (Mr. Hughes), referred to the knowledge that I and members of my Committee have in this subject and the Committee suggested that I should intervene in the debate to make certain comments about the Bill. In doing that, I do not wish to frustrate other members of the Committee who wish to take part in it.
The Committee is familiar with the challenges that the intelligence agencies face with issues of national security. We are aware of the threats that we face from different terrorist organisations and the technological skills that are available to them. Some of those skills enable them to avoid more conventional methods of surveillance and interception, so the issues raised by the Bill are important.
The Committee would be the first to say that our familiarity with the gravity of the threats to our national security and from serious organised crime does not in any way breed contempt for the need to strike a proper balance. Human rights and the proper protection of the privacy of the individual are important considerations. It is a particular duty of members of the Committee to take account of that balance because we are privy to information on activities and threats that cannot be made available to hon. Members and to the wider public. Sometimes those threats are referred to in lurid and anecdotal terms by those who seek to justify legislation in one form or another, so the Committee has a particular responsibility to be sensitive to the need to protect human rights. We must examine seriously whether the balance is being maintained, how great the threats are and how far the Government and Parliament should go to ensure that proper protections exist.
The word "balance" has been used in every speech in the debate. We must take account of that in the procedures that are adapted to the new and major challenges that we face. It is a time of massive technological change and questions have been asked whether interception, in its traditional form, is possible for the new means of communication that are available.
Private networks are often referred to as though they are head office or internal telephone systems. However, my hon. Friend the Member for Esher and Walton made the interesting point that such networks can operate globally. The development of so many systems and providers presents a major challenge in how we approach interception.
My hon. Friend pointed out--I did not know this--that the chairmen of British Telecommunications and of Cable and Wireless once had to be British citizens. I doubt whether anyone, even the Minister, knows the nationality of the chairmen of the various companies that now provide communications networks in this country. Perhaps between now and the wind-up speeches we should try to establish all their different nationalities.
If we are to have different providers, all of whom have to provide an intercept capability, there is not only a question about the cost of that provision, but a great sensitivity about the fact that interception is even taking place. From my experience in previous incarnations, I know of the serious concerns about the security of information, and from my time in Northern Ireland, I know of the sensitivity that exists about what interceptions are taking place.
We are to have a host of different providers of different nationalities. It is difficult to identify where some companies are based, where their head office is or what legislation they are covered by. Those issues will need to be examined carefully in Committee and we shall have to consider how workable the legislation is. We are no longer dealing only with good old BT. The establishment of Mercury seemed, at the time, a radical innovation, but now we have a host of other providers.
The second issue, which the Intelligence and Security Committee has considered and which the Home Secretary referred to, is whether we should have judicial or executive authority for warrants. The issue by a Secretary of State of warrants for interception or covert intrusion legalises illegal acts, because without a warrant such interception is illegal, as the Bill makes clear. This country has been under fire for a considerable time for not placing the issue of such warrants on a judicial basis.
I hope that this remark will not seem too offensive to some people, but I am conscious that in some countries it would be extremely difficult to operate the system for issuing warrants on a political basis. I can think of a number of countries, including even fellow members of our great union, in which certain members of the Government have been accused of organising the interception of communications to other members of the Government. I remember a Government that fell over that issue, when it was found that the Prime Minister had arranged with the Attorney-General to intercept communications to members of the Opposition. It is understandable that public sentiment in several countries is that there must be a judicial system for the issue of warrants.
I agree with the Home Secretary, however, that a judicial system is not always the best protection for the rights of the individual. I recall that in Northern Ireland we were attacked because we held people without charge for as long as seven days. That was considered a major breach of their human and legal rights, and we have reduced the maximum period to five days.
I have mentioned before in the House the Eksund, a ship that had come from Libya loaded with arms on their way to the IRA, which was intercepted by the French authorities. That was a very fortunate interception, as the armaments in the shipment would have caused huge suffering. The people who were arrested and held in France under the order of an examining magistrate--that made the order judicial--were held for two years without charge. That would be absolutely unthinkable under the British system, where we were criticised for holding people for seven days. We need to think more carefully before we move to a judicial system, which people say is bound to be fairer and to provide better protection for the rights of the individual.
I certainly endorse the present system, although doing so is, in a sense, special pleading because I had responsibility for such warrants. They were very carefully examined, and one was extremely conscious of the need to ensure that scrupulous attention was paid to them and of the fact that they would be examined--as they were by the predecessor to Lord Nolan, whose name I forget. The hon. Member for Southwark, North and Bermondsey said that the tribunal never found in favour of a complainant, but I certainly rejected certain applications for warrants because I knew that I had a duty and could be held to account for their issue.
Mr. Simon Hughes:
I am following what the right hon. Gentleman is saying. Does either he or his Committee have a view on whether there would be a case for treating differently interception on the grounds of national security and of crime? The data protection commissioner argues that we could reasonably justify judicial control over crime and security matters while retaining administrative ministerial control over national security matters.
Mr. King:
I can answer that very quickly: the Committee has not discussed that matter. I would need to reflect on it, but I am not instinctively attracted to such a suggestion. However, we have a problem; there is no doubt that the system is under fire. I happen to believe that our system of Executive action is absolutely justifiable and defensible. As an Opposition Member, I have confidence that the present Home Secretary will discharge such responsibilities fairly. Although the system is a perfectly good one, it will be very hard to sustain.
Mr. Rogers:
Would it not be true to say that the three aspects with which the Committee is concerned--terrorism and criminal activity, national security and economic well being--often overlap and that we cannot separate terrorism from, for example, drug activity? In fact, one often funds the other, so it would not be easy to split up warranting in the simplistic way suggested by the hon. Member for Southwark, North and Bermondsey (Mr. Hughes).
Mr. King:
I am grateful to the hon. Gentleman, who is a very experienced member of the Intelligence and Security Committee. His point is valid and an important consideration.
Mr. Campbell-Savours:
In simple language, is not the reality that we can remove politicians and Ministers, but we cannot really remove judges?
Mr. King:
There is an obvious and initial attraction in referring to a judicial authority as apparently quite separate from Executive political action, but the tradition in this country of a non-political civil service serving Ministers who have statutory duties has stood the test of time. I am not aware of any allegation at any time of political motivation in the signing of a warrant, but I am afraid that the same cannot be said for certain other countries where different systems operate.
The Committee sees the merit in the unification of tribunals. The establishment of a single tribunal seems to be a sensible step. The effectiveness of tribunals is certainly not helped by there being different ones or by adding to confusion. A single one should be more helpful to people who are trying to identify their point of reference when making a complaint.
The Committee has not commented on--and has discussed only briefly--what might be seen as a proliferation of commissioners and whether it is necessary to have so many. On the point about their effectiveness, I am grateful for the alertness of my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) in respect of having an investigative arm in support of commissioners. On the concern of the hon. Member for Leyton and Wanstead (Mr. Cohen), we have indeed appointed an investigator. We have enhanced our capacity in that sense, which the Committee believes to be important. It will add to the effectiveness of the Committee's work.
I turn to encryption--a matter on which the Committee has taken evidence and has considered. The House will be familiar with its most recent report, in which it says in paragraph 73:
I have seen outside comment on these matters, to which my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) referred. The report of the Foundation for Information Policy Research was written by an extremely experienced civil servant who--I think--worked in the Ministry of Defence for 30 years and held a very senior position before recently leaving to become a consultant. He made three points.
First, is there really a need for such provision? I speak on behalf of the Committee when I say that there is a need for some such facility. Secondly, the foundation
recommended that access and provision of keys should not at all times be required but that at least a transcript should be made available. In that connection--the point seems to be extremely relevant to the question of the key--how many people are we talking about? How many companies, providers and encryption service providers will have to be approached at one time or another? Who will be doing the transcribing of what might be extremely secret or sensitive information? What control will there be over that? Thirdly, if keys are to be provided, there must be proper protection of them, as they are extremely sensitive.
The author of the report said that, if we went by the cost to the Ministry of Defence and GCHQ, ensuring the security of such keys for some companies could cost hundreds of millions of pounds. That may be special pleading, although the figure is substantial regardless of whether we divide it by two, 10 or whatever. The Minister might like to comment on that, and hon. Members may want to discuss it in Committee.
The Home Office stated that 'It is, however, the potential use of encryption rather than its current application which gives rise to the greatest concern. Communications technologies are converging around common digital protocols in a way which will soon allow new encryption methods to be applied equally to voice as to internet data traffic. When that happens, if nothing were done, the valuable interception capability would be progressively lost to the law enforcement services and to the Agencies'.
Being mindful, and having some knowledge, of the importance of some of the interception that has taken place, the Committee concludes:
We therefore welcome the Government's proposals under the Electronic Commerce Bill to include powers to issue orders for the production of keys held by any person where they are required in order to decrypt material which has been, or is being, lawfully acquired. We understand that this will include interceptions under the Interception of Communications Act 1985 which is currently also under review.
That comment was in anticipation of the production of this Bill.
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