Standing Committee F
Tuesday 4 April 2000
(Morning)
[Mrs. Ray Michie in the Chair]
10.30 am
Clause 46
Notices requiring disclosure of key
Mr. Oliver Heald (North-East Hertfordshire): I beg to move amendment No. 36, in page 47, line 11, leave out `, or is likely to do so'.
The Chairman: With this we may take the following amendments:
No. 37, in page 47, line 13, leave out `, or is likely to do so'.
No. 38, in page 47, line 18, leave out `, or is likely to do so'.
No. 39, in page 47, line 21, leave out `, or is likely to do so'.
No. 40, in page 47, line 25, leave out from `excise' to end of line 27.
No. 45, in Clause 50, page 50, line 14, leave out from `, or' to end of line 16.
Mr. Heald: These amendments deal with the provision allowing an application for permission for a section 46 notice to be served when material has come into the possession of the prosecutor or authority or is likely to do so. The amendments probe the circumstances in which a prospective application can be made. We wish to discover from the Minister why that may be appropriate and give him an opportunity to explain the provision's inclusion to those critical of it.
Our main concern is that fishing expeditions may take place. Clearly, it is necessary to show that such information is likely to come into the authorities' possession. Will the Minister outline the circumstances in which that would be so? Will he also explain more fully whether the purpose of combining a section 46 notice with other warrants or powers is to provide the authorities with power to intercept and serve a section 46 notice at the same time? On the other hand, is the intention to give the authorities power to enter, search and seize and serve a section 46 notice in one operation?
Are the circumstances in which the information is obtained relevant to the granting of permission under schedule 1? How will the judge or Secretary of State go about that?
Amendments Nos. 36 to 40 would delete from clause 46 the words `or is likely to do so.'
Amendment No. 45 is consequential and would delete the provision allowing a secrecy notice in a section 46 notice concerning prospective protected material. It would be helpful if the Minister would respond to that.
Mr. David Ruffley (Bury St. Edmunds): If the deletions proposed in the amendments are not accepted, would that not enable the authorities to go on colossal fishing expeditions in the course of their investigations? What protections are there to prevent such expeditions if the clause is not amended?
The Minister of State, Home Office (Mr. Charles Clarke): The amendments would remove the futuristic element from the power to authorise the service of a section 46 notice—a decryption notice—in all instances in which it may be used. As a result, use of the power could be authorised only after protected material had been obtained. Similarly, amendment No. 45 would prevent a secrecy provision—or tipping-off provision—being included in a decryption notice until protected material had been obtained. Such matters relate to the future circumstances mentioned by the hon. Member for North-East Hertfordshire (Mr. Heald).
The amendments would limit the effectiveness of the decryption power. I have dealt with that in correspondence to Committee members, the main points of which I shall reiterate.
The futuristic element in the phrase
is needed for cases in which there are reasonable grounds for anticipating that a target is using encryption to protect communications or stored data that are likely shortly to be obtained, and reasonable grounds for believing that the location of the key is known. In such circumstances, the clause allows an agency to apply for the power to serve a section 46 notice at the same time as an application is made to use the underlying power, that is, before the encrypted material is in its possession.
It may assist the hon. Member for North-East Hertfordshire to know that we anticipate that it will be possible to apply for a section 46 notice and a search warrant, for example, simultaneously. I give as a hypothetical example the case of a suspected drug trafficker against whom there are sufficient grounds to enable the police to apply for a warrant to intercept his or her communications. There are also reasonable grounds for believing that he is using encryption. There may be a public key in his name posted on the internet, interception of one of his other means of communication may have revealed the use of encryption, or he may have used the technology previously. An informant may have provided intelligence that encryption is being used. Let us suppose that there is such reasonable suspicion that encryption is being used and reasonable grounds for the police to believe that they know where the relevant key is held.
The amendments would remove the ability of the law enforcement agency to act in the circumstances that I have described because the application for the power to serve a decryption notice could be made only after the encrypted material had been obtained under the interception warrant. That could lead to damaging delays in a potentially fast-moving investigation. In the hypothetical case that I mentioned, it could, for example, mean failing to seize a consignment of drugs as it entered the country.
Mr. Heald: At one time, a court order could be obtained only during court hours; in the summer holidays it was difficult to get hold of a judge at any time, but those days are gone. For example, when a child is being taken out of the country or an order is needed for other, urgent reasons, judges are available round the clock. Is the proposal as necessary as the Minister claims?
Mr. Clarke: I agree that the warm beer days of the past have gone, but events move much faster than they used to, for a variety of reasons. People take decisions much more quickly and the speed of communications—it is the very issue that the proposal tackles—means that information on which to intercept a drugs shipment may be obtained very late. Some of our targets—people who are smuggling drugs, for example—are well aware of the regime and of the speed with which it operates and they, too, conduct themselves accordingly. There would be a tangible inhibition of the law enforcement agency in dealing with such matters if the hon. Gentleman's futuristic suggestion were included in the clause.
In response to the hon. Member for Bury St. Edmunds (Mr. Ruffley), I said it before and I will say it again: fishing is not part of the Bill. The ambitions of law enforcement in the matter exclude the fishing expeditions to which the hon. Gentleman referred. There are safeguards in the Bill to guard against them. I hope that the hon. Member for North-„East Hertfordshire will ask leave to withdraw the amendment.
Mr. Heald: We are anxious about the breadth of applications that may be made, and the thought occurs that the Home Office is slightly behind the times in respect of the judicial system. Nowadays, judges are prepared to use the telephone. Even the patent courts, about which I know little, use teleconferencing. Perhaps, with good will on both sides it will be possible for judges to take these decisions. It would satisfy many who worry about fishing expeditions. I shall think about the points that the Minister made. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Richard Allan (Sheffield, Hallam): I beg to move amendment No. 178, in page 47, line 33, leave out from `(3)' to end of line 36.
The Chairman: With this it will be convenient to take the following amendments:
No. 179, in page 47, line 38, after `imposition', insert
`having regard to the purposes for which the key is used'.
No. 41, page 48, line 1, after `detecting', insert `serious'.
No. 180, in page 48, line 1, leave out from `crime' to end of line 2.
No. 177, in page 48, line 2, leave out `in the interests of' and insert
`for the purpose of safeguarding',
Mr. Allan: This is a group of amendments to a clause with which we are unhappy generally. I will try to keep to the amendments, although I know that a range of issues arises. Perhaps we can talk about the general principles during the debate on clause stand part. Amendment No, 178 would remove subsection (2)(b), which is the type of catch-all clause that we do not like. There is a general power to require disclosure of a key that we think could have serious practical and human rights implications. Steganography, a word to which I have just been introduced, is defined as the art of hiding information. We think that the powers in general will lead to it. The breadth of the powers is a cause of concern to us and it will be for the public generally. Amendment No. 178 would rectify one problem—the restrictive definitions in subsection (3) in relation to the interests of national security, the prevention or detection of crime and the economic interests of the United Kingdom. Those are mentioned throughout the Bill, but we shall debate the specifics in our discussion of the amendments.
We are defining a clear set of criteria. Subsection 2(b) relates to where the imposition of a requirement to disclose a key is likely to be of value for purposes connected with the exercise or performance by any public authority of any statutory power or statutory duty.
So, having defined clearly a legislative proposal that we like, the Minister has taken to himself a power simply to expand that criterion to any aspect of Government activity. In our view, that is most unsatisfactory. The Government seem to come up with things that fall outside certain categories, which, I remind the Committee, are quite broad. I can imagine the Minister saying that something may affect new areas of tax law, or fraud, or that the Government do not know what will happen in the future in terms of the way in which people might use communications for drug dealing and so on. All those things would surely fall within the terms of
`the purposes of preventing or detecting crime'.
It is not serious crime at the moment, although I am aware that it is mentioned in one of our amendments. It is a broad category. I find it hard to imagine categories of new activity that fall outside it.
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