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Clause 46
Lords amendment: No. 52, in page 50, line 10, leave out ("requirement to disclose the key") and insert
("disclosure requirement in respect of the protected information")
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. 53 to 76, 79 to 85, 102, 105, 107, 109, 110 and 154.
Mr. Clarke: As hon. Members know, part III has continued to be a subject of great debate both in another place and more generally. We have proposed a number of significant changes, in response to representations from and discussions with industry and other interested parties. We have also had constructive discussions with the Opposition in the other place.
I do not want to go into all the details of this substantial issue. The thrust of what we seek to do is this: we want to reassure all concerned that, in cases in which appropriate authorisation has been established under the Bill for reasons given in it, we seek to obtain a copy of the plain text--that is, the actual message that is exchanged, rather than the key. The amendment is designed to provide in the Bill the reassurance that I have given orally, in Committee and here, that we do not seek keys for a general purpose, that we do not seek a back-door route for mandatory key escrow, and that what we want is the plain text.
I am aware that Members on both sides of the House--in Committee, here, in the other place--and those outside it--have been worried about that, and have wanted
reassurance in the Bill that we seek plain text. That is the main point of the amendments. We believe that the requirement is proportionate to what is sought. The amendments propose to recast part III in terms of our preference for plain text rather than keys, and to leave it to the recipient of a notice to decide how to comply with a disclosure requirement.9.30 pm
As I say, the specific amendments are complicated and detailed. I shall not go through the detail further now, although I will be happy to respond as appropriate to points that are made in the debate, but the reassurance that I offer to the House and to all who are watching our proceedings in the industry is that it is our desire lawfully to get access to communications as appropriately authorised. It is not our desire to behave in a way that could make the communication systems of corporations vulnerable, or to give a power to demand a key that could be used irresponsibly to damage the security of organisations.
Contrary to what may have been thought--not in the House, where people have understood the issue but more generally--the representations that we have received have not come only from that industry, the internet service providers and so on. They have been from investment bankers and the financial community, on which the economic health of the nation depends. They have been concerned that inadvertently, by clumsiness or some other means, the Government might undermine their confidentiality requirements, which are a precondition for the operation of their businesses.
We are keen to reassure. We have done so verbally, and we think that, through the amendments, we have done so in the Bill. For those reasons, I commend the string of amendments to the House.
Mr. Heald: Before turning to the issue of keys in general terms, may I deal with Lords amendments Nos. 58 and 59? One of the points that I and others made regularly in Committee was that there was a danger, which had been highlighted by some in industry, that criminals would serve completely bogus notices on financial institutions and other companies seeking keys, or intelligible information on communications that they had obtained--protected information--and that the companies would find it difficult to verify the genuineness of the documents.
Amendments Nos. 58 and 59 are important because they require that the office, rank or position of the person who granted permission for the giving of a notice under schedule 1 be on the face of the notice. That gives extra reassurance to those who have received notices that they are genuine. Such measures are welcome. I know that the codes of practice, when they are before the House, will deal with those issues to a considerable extent, but I am glad that that theme, which has run throughout our deliberations, has been recognised in that way.
I turn to the general proposition about keys and the obligation to provide plain text. The original drafting of the Bill carries some of the blame. It was drafted on the basis that the notice would be to provide a key--that the requirement was for the key--so I do not think that we can blame those outside this place for thinking, "Look. It is all about the Government or authorities obtaining keys."
Of course, the Minister has given assurances at various times during our proceedings that that is not the case, but the way in which the measure was originally drafted was rather odd--I hope that the hon. Gentleman agrees. I welcome the fact that that whole section of the Bill has been turned the right way round, so that the requirement is for the plain text and the key is provided only in special circumstances. Those changes are welcome.
We still have a certain concern that the provision of the key is on the say-so of the chief constable. As the Minister will know, in the other place we fought hard for that approval to be given by the Home Secretary. We feel that it should be the person who is giving the assurances--the Home Secretary--who makes those decisions, rather than the chief constable.
Giving up the key is seen as quite a high security risk by financial institutions, companies, banks and the like. After all, many of them have international agreements not to disclose the key in any circumstances. They have sophisticated computer equipment that tries to avoid the same key existing for long. One can understand their reticence. We therefore proposed in the other place--where we lost the vote by one--that the Home Secretary should make those decisions.
I accept that since that defeat, the Government have held further discussions with all the parties and come up with the solution that the commissioner will immediately be notified that the chief constable has given approval, and that the commissioner will be able to make special reports to the Prime Minister about such instances at any time rather than only annually. However, although we are pleased about the extra protections, we shall be watching how the provision operates in practice. We still have that slight reservation about whether there should not be approval at a higher level.
As for the offence itself, the Minister will recall that one of the points made in the Opposition's reasoned amendment on Third Reading was that the offence created in clause 49 was repugnant to justice. Creating an offence in which a person must prove his or her innocence is not in line with what is often called the golden thread of British justice. We were strongly opposed to the creation of such an offence. We said that the offence should contain an intent element, and that it was not satisfactory to establish defences whereby people had to prove their innocence.
We very much welcome the fact that in the other place, it has been possible to add a mental element to the offence--the word "knowingly"--and that the defence has been amended so that it is no longer necessary to prove one's innocence on a balance of probability. It will be enough to raise the issue, which the prosecution will have to disprove.
Therefore, looking at the issue in the round, we accept that the original bad drafting caused considerable concern to industry, and not--as the Minister said--only to internet service providers. We think that recasting and rewriting part III has moved the Bill very much in the right direction, and that it is much improved. Nevertheless, I think that it is also possible to lay the charge of, "new Labour, new clause". The first 22 pages of amendments have certainly transformed the Bill from a rather ugly beast into something that may eventually even attain beauty. [Interruption.]
Mr. Beith: I shall keep off the subject of beauty, in the light of the Minister's sotto voce comments about his own
appearance. There is no doubt that their lordships have rewritten part III--it is a substantial, almost total rewrite--or that it was necessary to do so not least to allay the considerable fears that had arisen in industry. I think that sometimes, in some of the press reports, those fears were not accompanied by any recognition of the purpose of the provisions. In an age in which electronic communications will be the norm, it would be a very serious omission to have no means of intercepting and reading encrypted communications between dangerous criminals embarking on a very serious crime, or between people attempting to threaten the lives of the people of this country.Such powers are of course very dangerous, and therefore have to be the subject of very strict regulation. Liberal Democrat Members have said at various points in the Bill's passage that we would prefer a judicial basis for that type of approval in the various spheres in which it will operate, rather than the basis provided in part III and elsewhere in the Bill. Nevertheless, the fact remains that there are circumstances in which such powers have to be used. It was wrong that the Government were sometimes characterised as engaged in a wholly unjustified snooping exercise, intent on destroying all electronic commerce in the process.
The evolution from our original consideration of the Electronic Communications Act 2000, in which these provisions were first encapsulated, to the closing stages of our consideration of the rewritten version of this Bill, has been long and remarkable. As the hon. Member for North-East Hertfordshire (Mr. Heald) said, the overall cast of the Bill's provisions has been reversed, so that the intention is much clearer. I welcome those changes. I also welcome the Government's willingness to accept the advice that they received about how those changes could be made and the way in which that process was conducted.
It would be foolish to imagine that even now, we have got it all right. Clearly, lawyers will find scope to explore the provision pretty intensively, and we may have to return to some aspects of it. Some people might make quite a bit of money out of doing so, but we must ensure that serious threats to the physical safety of the people of this country, whether from criminals, hostile powers or terrorists, can be countered by the judicious and regulated use of such powers. We must do so in a way that does not disrupt an industry that has great earning power for the country and potential for the future. I hope that that has been achieved. If it has not been achieved fully, we might have to return to some of the details another time.
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