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Clause 12
Lords amendment: No. 12, in page 14, line 15, at end insert--
("(3A) A person shall not be liable to have an obligation imposed on him in accordance with an order under this section by reason only that he provides, or is proposing to provide, to members of the public a telecommunications service the provision of which is or, as the case may be, will be no more than--
(a) the means by which he provides a service which is not a telecommunications service; or
(b) necessarily incidental to the provision by him of a service which is not a telecommunications service.")
Mr. Charles Clarke: I beg to move, That this House agrees with the Lords in the said amendment.
Mr. Deputy Speaker: With this it will be convenient to discuss Lords amendments Nos. 13 to 19 and 125.
Mr. Clarke: I am afraid that I need to give slightly more time to this debate, as it reflected a very serious discussion in the other place. I need to explain why these amendments are before the House.
The purpose of amendment No. 12 is to clarify that commercial and other organisations that provide a telecommunications service as a means of accessing a further service of theirs will not be subject to any order under clause 12. For example, a bank may decide that it
will offer a telecommunications service to its customers as a means of providing access to its banking service. As a result, customers can communicate with that bank. Where such a service is provided, the amendment will exclude its provider from any obligations that might otherwise be imposed under clause 12 to develop or maintain an interception capability. That measure was in response to the submissions made to us as we considered the issue. The amendment also puts outside the scope of clause 12 a telecommunications service that is necessarily incidental to a different service.Amendment No. 15 is the outcome of our consideration of how best to ensure that the interception commissioner and his staff are able effectively to scrutinise any interception equipment designed and maintained in obedience to a notice served under clause 12. Amendment No. 15 will mean that notices served on an internet service provider will specify what should be done to provide the commissioner with reliable and verifiable technical means of fulfilling his duties. It also applies to any orders made under clause 12.
Amendments Nos. 13, 14, 16 and consequential amendment No. 125 deal with a technical advisory board. Whether to set up a statutory body such as a technical advisory or approvals board has been much discussed not only in both Houses of Parliament but within Government and between Government and industry. Opinions have differed as to whether such a body was necessary, whether it should be a statutory body, whether it should have an advisory role or be an approvals board as originally suggested, what its composition should be and what its remit should cover.
We consider that the amendments which have been accepted in another place and are before us for consideration are a sensible and reasoned compromise as a result of all the discussions and debates that this issue has engendered. I hope and believe that they will be welcomed by hon. Members on both sides of the House, particularly as they were jointly tabled by all parties in the other place.
The amendments achieve the following: first, they set up in statute a technical advisory board. Secondly, they introduce an element of flexibility as to the constitution and membership of that board. That is important, as we live in a rapidly changing environment. Thirdly, they clarify the function of the board when considering a notice that has been referred to it. Fourthly, they provide that a notice is effectively suspended pending consideration by the board. Finally, they make it clear what may happen when a reference is made.
I know that the membership of the board is an important issue. The current intention is that it will consist of representatives from industry and the agencies. There have been suggestions that membership of the board should extend beyond those of the communications industry and law enforcement. I am not entirely convinced that that would be appropriate. However, the order- making power proposed in amendment No. 16 allows for some flexibility in this area and thus allows us to look at the situation as it proceeds.
On costs and clause 13, which are dealt with by amendments Nos. 17, 18 and 19 relating to the drafting of clause 13, prior to these amendments, the obligation on
the Secretary of State under subsection (3) was stronger than the discretion under subsection (1). The effect of those amendments will be to introduce an obligation under subsection (1). Since both subsections now impose an obligation to pay contributions or to ensure that contributions are paid, it is right that they should now be wrapped up into a single duty.8.30 pm
Amendment No. 18 describes the "arrangements" to ensure that contributions will be paid, since that will allow other means of payment than direct payment from the Home Office. For example, contributions to the marginal costs for telephone interception may well come from the National Criminal Intelligence Service. However, the issues for which payments can be made, which are listed in subsection (2), remain unchanged. Amendment No. 19 removes subsection (3) to make way for amendment No. 18.
Amendment No. 17 specifies that considerations of "fairness", rather than "appropriateness" as previously drafted, should be taken into account when considering the particular circumstances of the case in question. In other words, particular notice should be taken of the circumstances of the service provider on whom the obligation is being imposed. I emphasise that point given that every service provider will have to deal with different circumstances. I would expect the particular notice to be taken of those circumstances to include consideration of a wide variety of factors, such as comparisons with international practice, the nature of any additional burden and the size of the company in so far as that may be related to the ability of the company to absorb the burden.
I should like to conclude by recognising the legitimacy of the debate during the past few months about the issue of costs, even if at times the figures bandied about in the press by opponents of the Bill bore little resemblance to reality. There were silly and seriously misleading and damaging figures in the media. That was not the Opposition's responsibility, nor even that of those who commissioned the reports that were published if one judges by what they say, but the fact is that those figures distorted the debate in a seriously damaging way, whereas the debate about costs is genuine, and we tried to take it seriously at every juncture in considering the Bill, in the Chamber, in Committee and in bilateral meetings and so on.
We have endeavoured to assuage the concerns of industry at every opportunity. It is not now, and has never been, our intention to impose unnecessary burdens on industry in particular or the economy in general. We have absolutely no motive whatever to do that. We believe that the worry that the Bill will cause financial crises for particular companies is unfounded. The Government have not only no intention, but no ability under the Bill, to create such burdens.
I am confident that the assurances that we have given in Parliament, together with those amendments, should provide sufficient reassurance that we wish to work with industry at all times--not just in considering the Bill, but during its implementation--to ensure that the regime that we implement enjoys the confidence of all parties concerned. I hope that the House will agree to these Lords amendments.
Mr. Heald: I shall start with amendment No. 12, as the Minister did. Amendment No. 12 is the result of concerns
that commercial organisation have raised about telecommunications services provided to their customers that are incidental to their business, rather than being telecommunications businesses themselves. The Government rightly tabled that necessary amendment in the other place, which supported it, and we support it now.The Minister will recall--as you may, Mr. Deputy Speaker, from the debates on Report--that there has been something of a battle royal about whether a technical board should exist. We thought it important to reassure business partly because of the procedures that have been adopted in the Bill, which pre-date the current Minister, but which have not been entirely satisfactory. For example, no technical specification of the equipment that could be used for interceptions was obtained at an early stage. It was only in January this year, when the Minister took the matter seriously in hand, that such a request was made to the Smith group.
I believe that many fears have been generated by the fact that business has not known what is expected of it. Therefore, we have tried to include confidence-building measures in the intercept capability provisions to make it clear to industry that it is negotiating with the authorities not from a position of entire weakness, but from one where it can have recourse to an independent body if it is dissatisfied with the measures it is asked to take. We are happy with the technical body that is proposed, although it is slightly different from the original proposal.
Internet service providers may be served with a notice that requires them to take detailed technical measures to provide an intercept capability. If they think that those measures are disproportionate or that the matter can be dealt with more easily, they can ask for the technical board's view on the matter and have an independent view taken. The Minister was very dismissive when we discussed that matter in Committee. He described such a board as an expensive
- quango to give technically sensitive information to competitors.--[Official Report, Standing Committee F, 28 March 2000; c. 206.]
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