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Mr. Clarke: I shall consider the points that have been raised. I understand the force of the right hon. Gentleman's comments. As we have said, there is a balance of judgment to be made between the various issues. I was trying to suggest--although I realise that it is not palatable to Members on the Opposition Front Bench--that when it comes to the use of that extremely important, powerful and intrusive interception technique, it should not simply be given to the Department of Social Security or the Inland Revenue as the hon. Member for Lichfield (Mr. Fabricant) proposed. The power would take effect only in cases of serious crime, which would thus involve police co-operation. The right hon. Member for Bridgwater asks whether we should not rule it out altogether and, in effect, delete clause 6(1)(k)--the element that widens the measure beyond current powers. I understand that point; no doubt we shall consider it in Committee. However, I thought that it was important to set out our thinking on the matter.
The right hon. Member for Berwick-upon-Tweed (Mr. Beith) asked why the Ministry of Defence was listed as an intercepting agency. The reason is so that an interception that is carried out to protect UK troops serving abroad, and which might involve an intrusion into a person's privacy, can be undertaken in accordance with the law.
The hon. Member for Lichfield asked why clause 25 does not cover tracking devices. It was a legitimate question--I was listening at the time. The reason is that interference with property to install a tracking device--when that is necessary--needs authorisation under part III of the Police Act 1997, or a property warrant. That authorisation is needed at present; that is why it is not mentioned in clause 25.
My hon. Friend the Member for Ilford, South asked about subsection (2)(j) of clause 6. The reason for that provision, which deals with mutual legal assistance, is that it allows an application for an interception warrant to be made in accordance with an international mutual assistance agreement. The request would have to satisfy the law of the requesting country as well as UK interception law.
I have tried to deal with the practical points that were made about interception. In response to my hon. Friend the Member for Leyton and Wanstead, there will be a public consultation exercise on the proposed codes of practice, but it will be the interception commissioner who oversees that, not the data protection commissioner.
The right hon. Member for Maidstone and The Weald (Miss Widdecombe) asked about the number of extra commissioners. I want to put her straight on that point, as perhaps it was not clear in the Bill. She asked if there would be two extra commissioners. There will be only one. The interception commissioner named in the Bill replaces the existing one. I hope that clarifies that matter.
Several Members have made powerful points about the overall number of commissioners--not merely in relation to the Bill. The reason why we did not reduce the range of commissioners so that there was a single one for this process--although we did establish a single tribunal--was that we felt that it was important not to throw the existing processes in different institutions too much into the air. I have taken note of the views expressed in the debate; we shall discuss the matter in Committee and we are prepared directly to consider the position.
I emphasise that the commissioners are not merely rubber stamps, as my hon. Friend the Member for Leyton and Wanstead suggested. They take their duties extremely seriously. The Government acknowledge the seriousness with which they do their work; there is no suggestion that they take it lightly.
I had intended to cover the general question of intrusive techniques in some detail, but, because of the hour, I shall not do so. We are considering the listing by order of other authorities to carry out direct surveillance and the use of covert human intelligence sources. The Department of Health is one such; the Medical Devices Agency observes business premises suspected of being involved in supplying counterfeit devices. MOT certificates set out when there can be intrusive investigation by the vehicle inspectorate of the Department of the Environment, Transport and the Regions.
The Department of Trade and Industry has powers in such matters--as does the Health and Safety Executive. The Inland Revenue has important powers, which have been mentioned. We have already referred to the immigration service of the Home Office and to the DSS. Extraordinarily, the sea fisheries inspectorate of the Ministry of Agriculture, Fisheries and Food uses surveillance to determine whether vessels are keeping to their quotas and are using the correct size of nets.
We are addressing the powers of many bodies. It is an important step forward for democracy that we are introducing a Bill that puts all those forms of surveillance under a regulated system. That has not been so in the past. Most Members will welcome that change--it takes us in the right direction.
Many points were made about the role of the judiciary versus that of the Executive. I shall not repeat the familiar comments on that matter, except to say that it is right for the Executive to take such key decisions. My right hon. Friend has signed the certificate on the front of the Bill, stating that we believe that it complies with the European convention on human rights--he did that advisedly.
We take seriously the points made about penalties in relation to clause 49--especially those made by the hon. Members for Mole Valley and for North-East Hertfordshire. They are good points and we shall consider them. I realise that they are an attempt to improve the legislation and we shall examine them in Committee as positively as we can.
The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) asked about information on whether a person had been bugged. It is difficult to imagine circumstances in which we could ever say to someone, "You have been bugged. These techniques have been used against you." The reasons were set out by my right hon. Friend earlier. It is critical that we have knowledge of the situation if we are to beat major criminals and to counter threats to national security. We must maintain the powers to investigate that are set out in the measure.
Mr. Beith:
Surely, there is now a circumstance in which somebody is in effect told that he has been bugged, because although that has never happened, the commissioner could say that something unlawful took place.
Mr. Clarke:
That is true. It has not happened, but it could happen.
Serious points were made about encryption. Several misconceptions have arisen, both in comments when the Bill was published and in the debate. First, there have been accusations that the decryption provisions reverse the burden of proof to such an extent that it is incompatible with the presumption of innocence enshrined in article 6 of the European convention. There must be reasonable grounds for believing that a person served with a decryption notice has a key in their possession before use of the decryption power can be authorised in the first place. That is set out in clause 46.
The offence of not complying with the notice is set out in clause 49. In that case, the burden falls on the prosecution to prove beyond reasonable doubt that the accused is, or has been, in possession of a key and that he or she failed to comply with the notice. The Bill outlines several statutory defences.
Clause 49(2) creates a defence for an individual who has forgotten or mislaid a key or password. It is true that he or she must prove the defence, but they need to do that only on the balance of probabilities. In other words, he or she must explain what has happened. It will be for the court to decide whether, on balance, the person is telling the truth. That seems to be an entirely reasonable burden to impose on an accused person. There are comparable provisions in plenty of other statutes.
The Crown Prosecution Service would, of course, need to be satisfied that it was in the public interest to pursue a prosecution in a particular case. Innocent people will not suffer under the provisions. As I pointed out, we believe that the Bill is ECHR compatible. My right hon. Friend signed a statement to that effect. It is not a frivolous undertaking.
Mr. Ian Bruce:
The hon. Gentleman assured me that he would deal with my question as to when a police officer would have to get in touch with a more senior officer to obtain a special warrant simply to undertake plain-clothes activities.
Mr. Clarke:
As I pointed out, the code of practice will set that out clearly. I shall consider seriously all the hon. Gentleman's points. However, I think that in his fears about the Bill he is tilting at windmills--those fears were expressed in his interventions throughout the debate.
The second concern that has been expressed about the Bill relates to key escrow through intimidation. That matter was also raised in the debate. I make it clear to hon. Members and to people outside the House that we shall not force anyone to use a particular technology. Individuals and businesses remain free to utilise any type of encryption, provided they choose the one that best suits their needs.
The third point raised was about the secure handling of keys. It was suggested that the Bill will leave seized keys vulnerable. I assure the House that the Government are sensitive to the need to protect material obtained under all the powers in the Bill. The level of security to be deployed is not largely a matter for primary legislation. As the House knows, we have already announced the establishment of a dedicated resource--the Government technical assistance centre--to help law enforcement on encryption. The centre will handle the keys that are obtained. Deploying the highest level of protection for such keys and other sensitive information will be a specific objective of the technical project to establish the centre. Work on that is going on at the moment.
I wish to emphasise one important point. We envisage that the disclosure of the plain text of protected material, rather than a key, will be sufficient in almost all cases responding to a decryption notice and I expect there to be very few cases where disclosure of the keys themselves will be required. We hope that plain text will be offered, but we believe that the security for the keys that we will offer through the Government technical assistance centre will provide the assurances that hon. Members seek.
I come to the more general concerns that have been raised. I accept that technology is moving very fast. That makes it much more difficult to decide how we operate, and future legislation may be necessary. However, I do not accept the philosophy of despair that has been suggested by some Members. Crime is damaging society in a wide variety of ways. Therefore, we believe strongly that we need such powers as we can achieve to contest drug, terrorist, paedophilia and money-laundering crimes. We intend to do what we can to combat them.
We also acknowledge that international co-operation is necessary. It is exceptionally important and that is one reason why my right hon. Friend the Home Secretary played such a leading role at the Tampere summit in trying to secure such co-operation. The idea that there is
nothing we can do as events move forward is wrong. We are determined to do what we can. I commend the Bill to the House.
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