Standing Committee F
Tuesday 28 March 2000
[Mrs Ray Michie in the Chair]
Maintenance of interception capability
Amendment moved [this day]: No. 98, in page 14, line 31, at end insert-
`( ) A person on whom a notice under subsection (2) is served may, within seven days from the date on which the notice is served, appeal to the Court.
( ) An appeal may be brought on any of the following grounds-
(a) that such steps as may be specified or described in the notice are not technically competent for the purpose set out in subsection (1);
(b) that such steps are not proportionate to the purpose set out in subsection (1); or
(c) that such steps exceed what is necessary to achieve the purpose set out in subsection (1).
( ) On an appeal under this section, the Court may either cancel or affirm the notice, and, if it affirms it, may do so either in its original form or with such modifications as the Court may in the circumstances think fit.
( ) The Court to which an appeal may be made under this section shall be-
(a) in England and Wales or Northern Ireland, the High Court, and
(b) in Scotland, the Court of Session.'.-[Mr. Heald.]
Mr. Oliver Heald (North-East Hertfordshire): The right of appeal proposed by the amendment would enable communications service providers to negotiate with the Government to achieve a satisfactory solution not just as humble petitioners but as companies or individuals with rights. I commend it to the Committee on that basis.
Mr. Richard Allan (Sheffield, Hallam): I agree with the hon. Member for North-East Hertfordshire (Mr. Heald) that an appeal mechanism is needed. The Minister said that individuals or companies could pursue civil proceedings if they were unhappy with notices, but I believe that that procedure is unsatisfactory. It has been repeatedly pointed out that there is now a large range of telecommunications companies, many of which will not have sufficient resources to pursue such proceedings. In spite of recent rumours about stock market prices, many such companies are not beneficiaries of the enormous wealth that seems to be available in the internet world and are small or are just starting up. The sort of company that decides to resist the application of a notice because of the cost involved will not have sufficient resources to pursue civil proceedings.
The amendment is helpful as it would introduce a formal right of appeal. In addition, it might be another strengthening of the case for a technical approvals board, which was discussed in relation to a group of amendments considered previously. The Minister tried to improve the proposals that were made with suggestions of ways in which the board could be made more impartial and be seen to be impartial by the industry. A company or business that wanted to challenge a notice could go to such a body and find out whether it could mount a challenge on technical grounds. If that failed, the case could be moved into the court arena. It is always best to deal with technical issues that involve many technical questions in such forums. It is easy to imagine the expense that will be incurred in the courts. The hon. Member for North-East Hertfordshire referred to judicial review as a possible route, but the procedure is already expensive and will require lawyers who are expert in the technical issues involved. The pursuit of such cases would involve the use of an expensive and select group of lawyers. One cannot go to any high street solicitor or barrister and ask him or her to deal with such matters; the proceedings will be very expensive because the points at issue will be at the forefront of technological developments. Such points should not be argued in courts if another mechanism can be used.
I fully support the right of appeal proposed by Opposition Members, but I further suggest that that right should initially involve a technical board and that cases should enter the court arena only when that procedure fails. Such an arrangement would help the Secretary of State, who would spend less money on judicial review and court proceedings. It would also provide particular help for small companies, most of which want to go about their business and try to do whatever is reasonable to co-operate, but which could experience genuine technical difficulties in trying to comply with an order issued by the Secretary of State.
The Minister of State, Home Office (Mr. Charles Clarke): The amendment would allow communication service providers served with notices requiring them to provide a reasonable intercept capability to appeal to a court if they thought that the requirement was disproportionate or technically unsound before the notice took effect. In effect, this avenue is already open, through judicial review of the actions of the Executive. I shall address those specific points in a moment, but I hope that the hon. Gentleman will consider asking leave to withdraw the amendment in the light of my remarks.
In response to the hon. Member for Sheffield, Hallam (Mr. Allan), I should point out that it is profound belief and intention-I know that I was accused of using warm words earlier-that the question of legal costs will not arise. I have tried to describe the process, which we believe will be fulfilled, of an order being served only on an agreed basis. Aside from the issue of a judicial review, there are good reasons why it is in the Government's interests to have the order determined in that way. If we fail to get agreement, even on a specific order and certainly on the whole framework, it would be a serious matter because it would imply that force majeure was being wrongly applied.
I agree with the intention of any amendment that is based on the principle of ensuring that the requirements that part I places on industry are properly considered and reasonable. That was the essence of our earlier debate. The provisions will achieve that, and I explained the consultation process.
There will continue to be a great deal of technical discussion and consultation between the communications service provider, the Home Office and the intercepting agencies before notice is served. It will not come out of the blue. Instead, it will follow a substantial process of discussion. I am talking not about the general consultation framework, but about the content of a particular order.
I want to reinforce that point lest I give the impression that no one who works for the Government is likely to understand the technical issues. The Government and the agencies employ excellent technical specialists, as the hon. Member for North-East Hertfordshire would concede. They undertake detailed technical discussions with public telecommunications operators. I have outlined a process in which those discussions will continue and develop, especially in relation to the internet sector. Companies will not suddenly find themselves faced with a technically impossible or inappropriate requirement. That is not feasible. They will have a chance to discuss concerns well before notice is is served.
I emphasise the point that I made to the hon. Member for Hallam: it would be counterproductive to serve a notice with which a provider was unable to comply. Enforcement action would have to be taken, which could bring the discussion of intercept capabilities into the public arena. The Government are keen to avoid that for the obvious reasons that it is not in the interest of the intercepting agencies or the vast majority of communications service providers.
The many representations that we received from public telecommunications organisations made it clear what priority they placed on technical discussions with the Government remaining confidential. We accept and honour that. The same would be true for internet service providers. Given our commitment to develop co-operation, we have a strong motive not to allow matters to come to such a pass that legal action is considered.
In the unlikely event of the Secretary of State serving a notice that is unreasonable or disproportionate-both words can be tested in law-the communications service provider will be able to apply for a judicial review of the notice. The hon. Gentleman, with his legal background, knows that there are three limbs to a judicial review: the Wednesbury test, which is constantly being developed by the courts; procedural impropriety and subsequent unfairness; and unlawfulness. That is a rounded base on which to test a case in the unlikely event of the Secretary of State serving a notice that is unreasonable or disproportionate. If the remedy of judicial review fails, the onus would still be on the Secretary of State to enforce the notice through civil proceedings. He would have to convince the court of its lawfulness and reasonableness.
There are substantial tests if there is a failure to agree on a notice, but the Secretary of State would have to consider the appropriateness of court action. He would have to weigh up the need for secrecy, which surrounds such activity, with the need to enforce a notice in a particular case. Other options may be available to him, perhaps including further consultation if an impasse is reached, although the hon. Gentleman did not suggest that that would be a routine occurrence.
The amendment would raise the stakes by taking the matter straight to court without any possibility of further dialogue and would risk placing sensitive discussions in the public arena. Further, for the reasons that I have set out, I do not believe that the amendment would add anything to the judicial review avenue, which will automatically be available. For three reasons, I hope that the hon. Gentleman will withdraw the amendment, and if he will not, I urge hon. Members to resist it.
First, the amendment addresses a situation that we believe will not happen. The Government have technical experts, and it is a fundamental principle of our approach that notices should be served by agreement.
Secondly, in the unlikely event that it did happen, the service provider would not be forced to comply without a hearing before a court. The service provider would be able to apply for judicial review or wait for the Secretary of State to bring enforcement proceedings; either or both routes could be pursued.
Thirdly, the extra legal process would add further risk of public dissemination of the techniques and capabilities under discussion, with a consequent threat to security, which is the Government's concern, and commercial confidences, which are the ISP's concern. I hope that I have given some assurance about the process that will permit the hon. Gentleman to withdraw the amendment.