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Child Support, Pensions and Social Security Bill

Lord McIntosh of Haringey: My Lords, on behalf of my noble friend Lady Hollis of Heigham, I beg to move the Motion standing in her name on the Order Paper.

Moved, That the amendments for the Report stage be marshalled and considered in the following order:

Clause 1, Schedule 1, Clauses 2 to 6, Schedule 2, Clauses 7 to 15, Clauses 83 and 84, Schedule 8, Clauses 16 to 26, Schedule 3, Clauses 27 to 31, Schedule 4, Clauses 32 to 56, Schedule 5, Clauses 57 to 68, Schedule 6, Clause 69, Schedule 7, Clauses 70 to 82,

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Clauses 85 and 86, Schedule 9, Clauses 87 and 88.--(Lord McIntosh of Haringey.)

Lord Renton: My Lords, is the noble Lord aware that taking clauses and schedules out of their numerical order often causes great confusion? Can he explain why Clauses 83 and 84 and Schedule 8 are to be taken before Clauses 16 to 26?

Lord McIntosh of Haringey: My Lords, I understand that the decision has been reached in agreement with the usual channels. Presumably, therefore, it is for good reason.

On Question, Motion agreed to.

Regulation of Investigatory Powers Bill

11.38 a.m.

Lord Bassam of Brighton: My Lords, I beg to move that the Regulation of Investigatory Powers Bill be now read a second time. I commend the Bill to your Lordships and in doing so take the opportunity to explain the thinking of the Government in bring it forward and, more particularly, their thinking in relation to some of the considerations highlighted in another place.

First, I have seen it said that this is a complicated piece of legislation, the purpose and impact of which is not immediately clear on first reading. However, I can assure noble Lords that the concept behind the Bill is very simple. It regulates six investigatory powers. Five of the powers are used already and the Bill will ensure that that use is regulated in accordance with the requirements of the European Convention on Human Rights.

Although, strictly speaking, the sixth power is new, it arises only as a response to developments in technology. Technology has the potential to limit considerably the capabilities of law enforcement and other agencies in preventing crime. The sixth power in the Bill will go some way towards redressing the balance.

The first power relates to the interception of communications. The Interception of Communications Act 1985 is the current statute on the basis of which law enforcement and intelligence agencies currently are able to intercept communications. It will be apparent to your Lordships that technology has changed significantly since 1985. I believe that it is accepted in all quarters that the existing legislation needs to be updated in order to reflect the current communications technologies and to provide for further potential developments in the years ahead.

At the same time, the update to the legislation is necessary in order to ensure that interception of communications takes place under a regime which is fully compatible with the European Convention on Human Rights. A notable gap in the current provision relates to interception by the state on private networks.

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In the case of Halford, the European Court found our existing regime to be deficient. The Bill corrects that deficiency.

The second power regulated in the Bill provides for access to communications data. Law enforcement and other agencies routinely use communications data in a variety of investigations. At present, they are handed over voluntarily by service providers under the Data Protection Act. The Bill introduces a new regime which requires the requesting agency to go through a number of checks before it can make a request of a service provider. A subsequent audit of the requests will be carried out under the auspices of the Interception of Communications Commissioner, who will report annually to the Prime Minister.

Some people have said that the acquisition of communications data is as intrusive in nature as the interception of communications. I do not accept that. The vast bulk of communications data is of a routine and low level nature, such as who phoned who, when, where and for how long. As such, that is far less intrusive than listening to the contents of a phone call between two parties. There are safeguards in place for the accessing of communications data but they are not as stringent as those relating to interception because the invasion of privacy is not as great.

The third power regulated by the Bill is called "intrusive surveillance". This power is very similar to the existing arrangements for interference with property, covered in the Police Act 1997 and the Intelligence Services Act 1994. Under those Acts, where agencies wish to place a device in someone's home in order to listen to a conversation, they must seek authorisation from a Secretary of State or prior approval from a surveillance commissioner, as appropriate. However, the requirement for them to do so is based entirely on their need to interfere with property in order to place the device. We consider that in certain cases where there is no need to interfere with property, the intrusion into privacy will be as great; for example, where the Prison Service consents to the placing of a bug in a prisoner's cell. Another example may be where a device is used from outside which consistently provides the same quality and detail of product as could be obtained from inside. In those circumstances, we believe that stringent tests should apply before these techniques can be used. The Bill provides for that, and the tests are the same as those in the Police Act 1997 or Intelligence Services Act 1994.

The fourth power regulated by the Bill is called "directed surveillance". Whereas, typically, intrusive surveillance will involve placing a device in someone's house or car, directed surveillance will involve following an individual through the course of his daily life. In so far as much of this would not take place in private but in places where others have access, the invasion of privacy would seem less significant. None the less, it is still a significant intrusion and one that should be authorised where it is planned in advance. It should also be subject to oversight by a judicial figure. That is provided for by the Bill and we believe that it is required by the European Convention on Human Rights.

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These powers do not only affect law enforcement agencies in their pursuit of criminals; the Bill also regulates the use of covert surveillance by all public authorities. A beneficial side-effect of the Bill has been the public identification of all the agencies which use this technique in order to ensure that surveillance is regulated and controlled to the same standard across all public authorities.

The fifth power regulated by the Bill is the use of covert sources. More commonly, this technique is described as "the use of agents or informants". Tasking an informant to report back to a police officer on the intentions or habits of a particular individual represents an invasion into privacy. We recognise that fact. For that reason, the Bill provides strict regulation of this type of activity. It must be authorised in advance, records must be kept, and it must be subject to judicial oversight. As with directed surveillance, these activities happen now. Everyone expects them to happen in the interests of preventing crime, among other purposes, and the Bill simply ensures that they continue to happen in regulated circumstances after the Human Rights Act comes into force on 2nd October.

I have described five powers in the Bill, none of which is new but which nevertheless should be properly regulated to ensure compliance with the European Convention on Human Rights. That is what the Bill will achieve.

I described the sixth power as the only new power in the Bill. Even this--the power to demand that data be decrypted--is simply a necessary response to new technologies. In simple terms, a wide variety of situations exist under which at present law enforcement and other agencies can acquire data. That may be through the interception of communications; it may be through a production order under the Police and Criminal Evidence Act; or it may be because an individual has wandered into a police station and handed over a floppy disk. In all such cases, we would expect the person to whom the data were handed to be able to read them. In its various guises, the current law provides for that. However, the development and marketing of encryption technologies means that the recipients of those data may not be able to read them in future. The Bill provides them with a power to demand that the data be decrypted.

I have outlined the six powers which are regulated by the Bill. In so far as they are not new powers, and in so far as the main aims are to ensure that the powers are used in a way that is compatible with convention rights, I hope that the Bill will be entirely welcome to this House. Further, support for the second aim of ensuring that law enforcement powers are updated in respect of modern technology must also be shared across the Floor of the House. Those are the two objectives of the Bill: that the six powers in question should be used in a way that is compatible with the convention and that they should be available to cope with developments in modern technology.

I know that there are no disagreements in principle as to the desirability of providing laws which meet those twin objectives. However, questions have been

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raised about the particular route that we have chosen in the Bill, and I should like now to mention briefly one or two issues that have arisen in respect of the Bill as it has been brought forward from another place.

In the most recent debates in another place, three particular concerns were highlighted. I shall deal with each of them in turn. The first was that the Bill does not give law enforcement the powers that it needs. I cannot accept that suggestion. The reality is that the Bill updates the power of interception to take account of technological advancement; it puts other intrusive investigative techniques on a comprehensive statutory footing for the first time; and it gives law enforcement new powers to help to fight the threat posed by the criminal use of encryption.

We maintain that the powers must be properly regulated--the Bill does that--without unduly tying law enforcement agencies' hands. Without the measures, and even if the Bill is subject to delay, there will be a significant impact on the ability of law enforcement and other agencies to combat crime and other menaces.

Secondly, concerns were expressed in another place about the potential impact of the Bill on the development of e-commerce in the UK. Our goal is to make this country the best and safest place in the world in which to carry out e-commerce. I know that industry, too, wants a secure environment in which to operate. We are taking a lead in updating our laws for the digital age. The Electronic Communications Bill, which, it is hoped, is finishing its parliamentary stages in another place today, will help to create further trust in the use of new technologies. The Regulation of Investigatory Powers Bill complements that. We do not want to see the burgeoning e-commerce market overrun by criminals against whom law enforcement agencies find themselves effectively powerless. So, in driving forward the e-commerce revolution, we need to ensure that law enforcement powers are similarly updated. That is precisely what the Bill does.

I can state, unequivocally, that we have no intention of placing unreasonable burdens on industry. We recognise that some parts of industry have concerns about parts of the Bill; for example, Clause 12 and the Internet industry. There are significant questions of costs here which we recognise. My colleagues in another place were at pains to point out how the interception regime will simply not work without the co-operation of industry. But it is in no-one's interests to force businesses overseas; so there can be no point in imposing unreasonable requirements on industry. None the less, the desire to ensure that new communication networks can be intercepted is an important one and reflects policy that has been in existence for many years. We have offered a number of reassurances on the implementation of Clause 12. The Bill was amended in another place to ensure that the order under Clause 12 should be subject to affirmative resolution.

We have published a report, which is available on the Home Office website, discussing the details and potential costs involved in creating interception

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facilities on the Internet. We are consulting with the relevant industry players on these matters. These are detailed and sometimes technical matters which will change with time. They are properly the subject of subordinate legislation. This subordinate legislation will be subject to the approval of Parliament.

The final area of concern in another place focused on the offence at Clause 49 of the Bill. This is the offence of failing to comply with a decryption notice. There are suggestions, supported by an opinion obtained by Justice, that the offence may not be ECHR compatible. We take those concerns very seriously, and have considered them. At various stages in another place, we reiterated why we believe that the offence is satisfactory as expressed. In particular, we took issue with the suggestion that the offence reverses the burden of proof. It has also been suggested that individuals can be locked up for two years for forgetting a password. We do not believe that that is likely. We have set out in detail in another place the reasons why we do not believe that it will happen. None the less, we welcome continued debate on how the construction of the offence might be improved.

There will be other matters which no doubt your Lordships will want to question and probe, perhaps today and certainly when we consider the Bill in detail in Committee. In my remarks today, I have sought to set out what the Bill aims to do in terms of ensuring compliance with the European Convention on Human Rights and to ensure that the armoury of law enforcement is equipped to deal with modern and future technologies. I have also addressed some of the points which were of a more contentious nature in another place, particularly in respect of the Internet industry. Here, the Government are acutely aware of the need to minimise any potential impact of this Bill and to foster the prospects for e-commerce in this country. We have taken some steps in amending the Bill and in offering reassurances in another place. We remain willing to take further steps should they be identified and compatible with the overall objective. That said, I believe that the Bill, in its current state, represents the best balance that can be struck between the requirements of law enforcement, the requirements of the rights of the individual, and the requirements of industry.

It would be remiss of me, at this stage, not to thank the Select Committee on Delegated Powers and Deregulation for the rapid way in which it has come forward with a close reading of the text of our Bill. We are extremely grateful to that committee for considering the Bill so swiftly. We shall give our considered response in Committee.

That committee made two recommendations to date, both of which I welcome. The first recommendation asks that we tighten up the arrangements for adding to the purposes for which various investigatory powers can be used. It is worth putting on record today that there may be something we can do in response to that clear recommendation. Certainly, we have always thought that the powers

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would be limited in practice by the Human Rights Act. If it seems better to this House to reflect that limitation on the face of the Bill, I see little difficulty with that.

In its second recommendation, the committee admitted that that raises rather more complex issues. Our intention is to table a schedule listing public authorities which can conduct investigations under Part II of the Bill. I believe that that will go a long way towards meeting the concerns of the committee.

Having reflected briefly on the commentary of that committee, I commend the Bill to your Lordships' House--

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