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Mr. Heald: I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker: With this it will be convenient to discuss the following: New clause 7--Failure to comply with a notice to disclose a key to protected information--
'(1) A person is guilty of an offence if--
(a) with intent to impede access to protected information or the putting of that information into an intelligible form, he fails to comply in accordance with a section 46 notice with a requirement of that notice to disclose a key to protected information;
(b) there are reasonable grounds for believing that possession of the key is necessary to obtain access to the protected information or the putting of that information into an intelligible form; and
(c) he is a person who has, or who after the giving of the notice and before the time by which he was required to disclose the key, had possession of the key.
(2) A person is guilty of an offence if--
(a) he fails to comply in accordance with a section 46 notice with a requirement of that notice to disclose a key to protected information;
(b) there are reasonable grounds for believing that possession of the key is necessary to obtain access to the protected information or the putting of that information into an intelligible form;
(c) he a person--
(i) who has had possession of the key; and
(ii) who has, or who after the giving of the notice and before the time by which he was required to disclose the key had, possession of information which would (either on its own or in combination with other information) enable possession of the key to be obtained; and
(d) with intent to impede access to protected information or the putting of that information into an intelligible form, he did not before the time by which he was required to disclose the key, make a disclosure to the person to whom he was required to disclose the key of all such information in his possession which would (either on its own or in combination with other information) enable possession of the key to be obtained.
(3) In proceedings against any person for an offence under this section it shall be a defence for that person to show--
(a) in the case of an offence under subsection (1), that it was not reasonably practicable for him to make a disclosure of the key before the time by which he was required to do so;
(b) in the case of an offence under subsection (2), that it was not reasonably practicable for him, before the time by which he was required to disclose the key, to make such a disclosure as is mentioned in subsection 2(d); and
(c) where in either case it has since that time become reasonably practicable for him to make a disclosure of the key or of information which would (either on its own or in combination with other information) enable possession of the key to be obtained, he has made such a disclosure to the person to whom he was required to disclose the key.
(4) Except in a case where there is no authorisation for the purposes of section 47, in proceedings for an offence under this section a person shall have a defence under subsection (3) only if he also shows that it was not reasonably practicable for him to comply with the requirement in the manner allowed by that section.
(5) A person guilty of an offence under this section shall be liable--
(a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both;
(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.'.
Government amendments Nos. 39 and 67.
Amendment No. 18, in page 51, line 10, leave out Clause 49.
Amendment No. 20, in clause 51, page 53, line 42, at end add--
'(aa) that a key disclosed in pursuance of a section 46 notice is stored safely and kept safe at all times;'.
Government amendments Nos. 89 and 90.
Mr. Heald: This group of new clauses and amendments is at the heart of the Opposition's anxieties about the Bill. New clause 1 is an attempt to deal with the controversy about clause 49 that has raged since the first consultations on it.
Clause 49 makes it an offence punishable by two years' imprisonment to fail to comply with a notice that requires the production of a key to coded information--an encryption key. The criticisms are made from two perspectives, which are different but none the less valid, in the Opposition's view.
The first criticism involves the punishment for failing to provide a decryption key. I pause to mention that the Minister has said that a key will be required only in cases in which the most suspicion arises and the Government
are least satisfied with the bona fides of the person from whom the key is sought, and that plain text will be adequate in other cases. Requests for keys will be made of those who are suspected of money laundering, paedophilia or drug trafficking. They are the sort of people who would be prepared to accept the lesser offence and take the two-year sentence rather than give up their secrets and make available information that could lead, after further investigation, to their prosecution for the most serious offences, carrying sentences of imprisonment for life or a long determinate period. That point was made by my hon. Friend the Member for Mole Valley (Sir P. Beresford) on Second Reading and several times in Committee, but the Government are not prepared to tackle it.The first criticism is that to ask for a key but not to be given one would be of no use to the Government, but the serious criminals whom they want to target would be all too prepared to contest the lesser offence in the hope that they might be acquitted. They will think two years much better than 10. Through the new clause, we have attempted to tackle the problem of the inadequate sentence. The second criticism, which is entirely different, is that the defendant will be required to prove his innocence and explain why he was unable to provide the key. The burden will be entirely on him to prove his innocence if it is shown that he failed to comply with the notice.
Apart from the criticism that that may breach the European convention on human rights, it is repugnant at law to require someone to prove his innocence. It goes against the golden thread that runs through English justice. Neither we nor those who are concerned about the matter have taken that lightly. Justice and the Foundation for Information Policy Research asked a leading barrister to consider the issue and produce advice on which we could deliberate in Committee. Tim Eicke has done that.
In Committee, I asked whether it would be possible for a Law Officer to address such issues so that we could have a detailed legal exposition of how the Government justify the offence. That did not happen; I chided the Minister, but he said he was certain that the offence was perfectly normal, and that it was not a matter of huge concern that an innocent person would be required to prove his innocence. However, it is worth considering what Tim Eicke and others have said. In his advice, he describes the offence as "repugnant".
We all know the careful way in which lawyers phrase things. In fact, the Minister criticised it in Committee, and told us that he hated lawyers. A barrister may say that something is doubtful or difficult, or that there are legal difficulties, but the use of the word "repugnant" shows that the problem is pretty serious. Tim Eicke describes the offence as repugnant because no guilty intention is required as a ground for a conviction. He says that in most offences, the prosecution has to prove not only that particular events occurred, but that someone had a guilty intention. For example, for theft, one has to be dishonest; for murder, one has at least to intend to cause grievous bodily harm. However, in this offence, if it is shown that someone did not comply with the notice served on him, the duty is on him to prove that he lost or forgot the key, or that there is some other innocent explanation.
5.45 pm
In his advice, Tim Eicke points out:
- A defendant who chooses not to give or call evidence may be convicted without any mens rea--
- of the offence being proved against him.
- If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.
The Opposition are not satisfied that an offence that a leading human rights barrister describes as repugnant should go on the statute book without the Minister having met the challenge of the ideas that have been presented to him and explained why it is right in this case that a man can be found guilty when he has no guilty intention. Why should someone have the burden of proving his innocence?
It is important to note that it is not only the main Opposition party that has made that point. The Liberal Democrats have also made it, and their new clause 7 tries to import into the Bill the concept that there should be a guilty mind, and an intention, before a person can be found guilty. Although they do not go as far as we do, like us they include the intention to impede access to justice or to prevent the information from being put into an intelligible form.
The Minister should explain how this provision conforms with the European convention on human rights. A man should be innocent until proven guilty. How does the Minister deal with that argument?
New clause 1 deals with the issues that I have described. It would increase the penalty for this offence to 10 years, which the Liberal Democrat new clause would not. It would also allow evidence of previous convictions or of other material found at the scene of a police investigation to be used to prove guilty knowledge. That is not unprecedented; it has been done before in other areas of law. If the police or other authorities go to a house and during their investigations they find, for example, a computer that has paedophiliac images of children, that evidence should be allowed to be used to point to the vast mass of encrypted material on the computer and the fact that when the accused was asked to produce the key to the information he refused to do so. The court could draw an inference of guilty knowledge.
With new clause 1, we are trying to target the offence more on serious criminals, while respecting human rights and the right of an individual to the type of fair trial that we have had in this country for hundreds of years. We hope that the Minister's response will be fuller on this issue here than it was in Committee.
Amendment No. 20 deals with what happens to a key once it has been disclosed. It would require a key disclosed in pursuance of a section 46 notice to be stored
safely and kept safe at all times. That relates to a separate concern of the industry. Encryption was not invented to help the criminal. It was invented because commercial enterprises wanted to be able to keep commercial transactions secret. Banks and financial institutions--some of the most important commercial enterprises in the country--rely on encryption to do their business.One of the fears that those organisations have expressed to me, along with others--including all Opposition parties--is that if keys are not to be kept safe, or if the arrangements are not entirely satisfactory, there will be a fracturing of trust in the whole process of encryption. That could have a dramatic effect on business confidence in a new technology and a new industry--something that members of all parties profess to support, but that the Government endanger by failing to deal with the position fully. Both EURIM--the European Informatics Market--and the Foundation for Information Policy Research have made that point, and I look forward to what the Minister has to say about it.
In Committee, we said that the notices that the Bill requires to be served on companies and individuals should be obviously recognisable and verifiable, so that con merchants and others could not use the procedures while pretending to be the authorities. Under amendment No. 39, a notice under clause 46 will have to include the grounds for that notice, the office, rank or position of the notice giver, whether a plain text is sufficient, the time by which the notice must be complied with, and the manner of compliance. Both we and the Liberal Democrats suggested such measures in Committee, and we therefore welcome the amendment; but it does not go as far as we would have liked.
We wanted a system enabling all notices served under the Bill to be instantly recognisable, and to contain security information that could be checked through the use of ultra-violet light or other security methods. We wanted the establishment of a clear verification point where the industry could go to find out whether a notice was valid. Although reassurances have been given, it would be helpful if the Minister repeated them, and told us what point the deliberations have reached.
Government amendment No. 67 is also important, because it provides that the key will be required only in special circumstances. The Minister agreed to that in Committee. As I have said, that means that those who are asked for the key are far more likely to be those who are under suspicion, because plain text will be more readily satisfactory from those who are not under suspicion. However, I should be grateful if the Minister would explain a little more fully what he means by special circumstances. Has he a definition in mind, or is it important to use that term in order to provide a certain amount of flexibility?
Government amendments Nos. 89 and 90 exclude directors from liability under part III. They, too, meet concern expressed by Opposition Members in Committee, and show that on that occasion, the Minister was listening--but if he is prepared to listen in respect of little things, is it not time that he listened in respect of new clause 1?
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