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The Liberal Democrats believe that new clause 1 is a move in the right direction, but, because it differs from our new clause 7 in certain particulars touched on by the hon. Member for North-East Hertfordshire, we naturally commend new clause 7 rather than new clause 1. I shall say more about that later. We consider Government amendments Nos. 39 and 67 to be improvements: I shall say more about those later as well. Amendment No. 18, tabled by Liberal Democrats and Conservatives, would delete the current offences provision--clause 49--because we feel that the clause gets the balance wrong. We support Conservative amendment No. 20, because it is geared to give additional protection. We hope that the Government's response will be positive. Government amendments Nos. 89 and 90 themselves constitute a positive response to concerns expressed in Committee, and we welcome them.
We consider all four Government amendments to be improvements, and feel that the additional single protection mechanism proposed by the Conservatives in amendment No. 20 should commend itself to the Government. However, we agree with the hon. Member for North-East Hertfordshire that the Government have still not dealt with the major concerns--concerns that are felt not just by buffs and hacks who live entirely in the world of information technology for reasons of work or interest, but by others who use e-commerce, e-mail and the rest.
Like other hon. Members, I have received representations not just from organisations but from individual constituents, who have expressed anxiety about potential criminal liability on the basis of their inability to disprove a negative. As the Minister knows, we have been over that ground recently. As I made clear on Second Reading and as my party has made clear throughout, we differ with the Conservatives on this part of the Bill, although not to a great extent. We agree with the Government that a Bill is needed to make this area of activity comply with the European convention on human rights. Because of the development of technology, certain activities take place that have not yet been brought under the umbrella of the convention, and it is important for us to have legislation for that purpose before 2 October this year, when the convention will become law in England and Wales, Scotland and Northern Ireland.
We think it desirable to have a Bill, even one with flaws. The paradox is that, if the hon. Member for North-East Hertfordshire and I are right, there may well be an immediate failure to comply with the convention. It is, I think, no secret--indeed, it is an obvious, self-evident truth to me--that before long someone will test the Act's compatibility with the convention. It may not be some big corporate enterprise; it may be an individual who, having been served with a notice, finds that he cannot reasonably comply and is therefore liable to be punished as a criminal for failing to prove that he does not have information, has lost his password, cannot remember the code or cannot assist in decryption. That may happen regardless of innocence or guilt in relation to the substantive material; indeed, no offence may have been committed.
The hon. Member for North-East Hertfordshire cited pornographic material that might be used for purposes of paedophilia, an example that I gather was given often in Committee. The concern is understandable, but nothing of that nature might be involved. The person in question might have been falsely accused of having possessed material and subsequently got rid of it; he would then be served with a notice and, under the law as drafted, would be unable to get himself out of that hole. That is an important criminal line to cross.
Let me again make the point that I made in Committee and elsewhere; I made it to the Minister during our consideration of the Terrorism Bill, on which we had a similar debate. The Government are duty bound--I accept that they do it in the proper manner--to certify in the Bill that they are European convention-compliant. They have done it in this Bill as they have elsewhere. They take advice. Clearly, they must act on that advice because, if they do not, they will be in default and, if taken to court and so on, they may be in difficulty.
There is a constitutional failure in the system, however. I understand that, if the Government seek legal advice and that advice says, "Don't do it. You would be acting illegally," they will pray in aid the exemption from the freedom of information legislation, saying, "This is not a matter of fact or statistics; it is not even an evaluation of facts or statistics. It is advice to Ministers, so we don't want to disclose it," but I have never understood why the Government are so reluctant to disclose the advice, which, by definition, they must claim supports their case.
If the Government--as they must have done and as they say they have done--have gone to those who advise them, whether in government or outside, and have said, "This is ECHR compliant," there may be a difference of view. The advice that the hon. Member for North-East Hertfordshire and I have seen and the advice commissioned from elsewhere could at least be intelligently pitted against and put into a discussion with that other advice.
The problem is that, when we proceed in that way, with the Government being so secretive, the lay people, in a sense--because even those of us here who are qualified as lawyers are lay people--argue on the basis of advice given without expert guidance. That is exactly why the Special Standing Committee procedure is often useful: people can look at the implications and give their own legal advice.
Government--not necessarily only the present Government--do Parliament a disservice when they pray in aid advice that supports them while letting no one see it so that their argument cannot be tested by cross-examination and questioning.
Mr. Heald: Does the hon. Gentleman share my concern? The Attorney-General has said--I quoted the details in Committee--that the proper occasion for a justification of the issue of compatibility is a debate in the House. If Ministers are not prepared to go beyond the bald statement in the Bill and into the real detail, and to give
Mr. Hughes: I agree. Like the hon. Gentleman, I am conscious of the two concerns; it is not new ground for those who served on the Committee or, indeed, who were here for the Second Reading debate. One is for the individual civil liberty of the individual citizen against the state that is seeking to interfere with his or her activities. The other is that business could potentially be harmed. Business will think, when deciding where to carry out its activity, that the regime in Britain will be less helpful and more dangerous and threatening to it than a regime elsewhere, so it will say, "Thank you very much, but we will take our business elsewhere."
There are those two concerns--not always, as it were, coming together on the same side. The problem as I see it--I come to it, as I have said, as a lay person--is that some people, to try to avoid being caught, will be pushed into taking measures that do not help the normal activity of the business. If the United Kingdom is much more draconian in that area than many other countries, and I understand that it is, that cannot be helpful for our position.
Again in passing, may I say that that is exactly the sort of area where the logical thing to do would be to have provisions that are as similar as possible to those in other countries--at least those throughout the European Union--so that we are not commercially disadvantaged in relation to countries with codes of rights, Bills of Rights or constitutions, such as those in Scandinavia or elsewhere.
Again, we had a similar debate when we considered the Terrorism Bill. The Minister says that what is being referred to is not a reverse burden of proof but a statutory defence. I understand that argument. In the case of the Regulation of Investigatory Powers Bill, the statutory defence will not be rarely used, as it will be in the case of the Terrorism Bill, under which on the widest definition it is likely to be pretty exceptional for someone to pray in aid that defence. In this case, it could apply at any time to any Tom, Dick or Harry, or to his female equivalent--big player or small player. Showing that he has legitimately forgotten something is much more likely to be difficult for the individual citizen than for the corporate enterprise.
My advice is that the power will be ineffective and that the real criminal will find ways round it. The Government are building in a great power and getting the balance wrong between the state and the individual, but they will not catch the real villains they want to catch because those people will be clever enough to work out ways to escape. They are the people who will refuse to give the keys, and who may escape.
I understand that that is the reason why the hon. Member for North-East Hertfordshire seeks to make the penalty bigger. He wants to make less aggressive the provision of the state, but he none the less wants to ensure that people who are caught are penalised. I understand that, although I disagree with it, as he knows. We think that that is far too great a penalty for what may be--although the courts will have discretion in the matter-- a pretty minimal offence.
Let me make one last general point. Those who know about these technical matters argue that, rather than having a heavy offence provision and draconian powers whereby the state and the prosecution authorities can effectively seek information from people who, if they cannot satisfy them, are liable to be found guilty, it would have been better to have facilitated the better technical use of the means of getting information--what I understand in the jargon is called forensic hacking, a concept which I understand and which might afford us a better approach. Those who are interested in and who know about these things argue that the current approach may be wrong. We can always concoct criminal procedures, structures and balances between the state and individual, but we might also have gone down that road.
I am conscious that the Data Protection Commissioner has expressed concerns about those things. Those have not changed, I understand, since they were expressed before the Bill went into Committee. I remind the Minister of that.
Government amendment No. 39 is a response to the amendment that was moved in Committee by my hon. Friend the Member for Sheffield, Hallam (Mr. Allan), which specifically sought to address the issue. We are grateful that the Government have responded to that and effectively given the exact response that we sought in Committee.
The same applies to Government amendment No. 67, applying to the additional test, which should be about the disclosure of data, not about the disclosure of keys. When the matter is looked at simply, it seems that it is far better to ask people to provide the data; only if the data are not or cannot be provided should we seek to get the key. Many people will find it much easier to provide just the hard copy, to put it crudely--to provide the print-off. The commercial world will be much more comfortable if it is asked to provide the data, rather than the key.
As I said, the Liberal Democrats support amendment No. 20. Although the amendment is simplistic in some ways, it is valid. Keys must be looked after properly, and, in theory, they will be. We have to ensure, however, that a delegated person--who may be third down in the chain of command--is not given responsibility for key security if he or she cannot do the job properly. The issue generally is important, but, commercially, it is potentially very important. We really have to ensure that, once keys are recovered by the authorities, they are properly looked after.
Government amendments Nos. 89 and 90 deal with company directors' liability--the key escrow by intimidation provisions--and address issues raised by my colleagues in Committee. We not only welcome but are grateful for those amendments.
Our new clause 7 seeks to address the keys issue. We still think--there is common ground among Opposition Members on this--that the prosecution should have to show intent to impede. We also still think that, using the usual test of beyond reasonable doubt, mens rea--guilty
Liberal Democrats believe that a defence should be available to defendants who provide the key or information after the notice's initial date requirement if it has been become reasonably practicable to provide it. We also argue that the offence should be split into two parts, to cover cases in which a person does not have the key, but could get it. Although such a provision may sound technical, people should know the charge they face and the procedure they should follow.
The danger of Conservative Members' new clause 1 is that, in the interests of advancing human rights in one sector--to protect people against, as I said on Second Reading, the overmighty powers of the state--we shall be removing defendants' usual human right not to reveal previous convictions. I argue that such a trade-off would be an excessive loss of human rights.
In Committee and elsewhere, the Minister has been very definite in saying that there would be no concessions on the issues addressed in this group of amendments. We are grateful, however, to note that Ministers have made a little movement around the edges of the central provision. Nevertheless, I should be troubled if Ministers were still unwilling to move on the main issue.
If the Government do not move on the main issue, if we cannot dislodge them in a Division on this group of new clauses and amendments and if Labour Back Benchers are not willing to acknowledge the civil liberties and balance of defence points, I am fairly confident that this is precisely the type of issue on which the paradox of this Parliament allows us to rely on the other place to make the case for civil liberties and for defendants and to reduce the state's power. If that happens and the other place amends part III, particularly clauses 46 to 49, I hope that the Government will think again and not seek to reinsert in the Bill that which we believe should not have been in it initially. Although we welcome the Government's movement on the issue, the key movement has not yet occurred. We hope that we can persuade them to make it.