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Viscount Goschen: I listened carefully to the Minister's explanation. In respect of my noble friend's Amendment No. 16, can the Minister clarify the point further? With the globalisation of telecommunications equipment, it is possible to envisage that someone may sit behind a desk in Singapore and intercept an e-mail sent from Milton Keynes to Portsmouth. Conceivably, they will have injected a virus into the ISP. However, I defy the Minister to tell me that that cannot be done. If it cannot be done now, I am sure that such an act will be possible next year.
Therefore, it is important to test how far the Bill can be taken with regard to the interception of communications. Clearly, we do not want to create a loophole where illegal activity could take place in havens. We want to ensure that the Bill tackles areas where criminal activity takes place and that proper sanctions can be taken against such criminals.
Lord Bassam of Brighton: I am not a technocrat nor a technophobe, but I am sure what the noble Viscount says is right. If the technology to do precisely as he wishes does not exist this year, it will exist next year. I am sure we are all familiar with the Internet and the systems that are accessible.
The problem with Amendment No. 16 is that, if it were accepted, it would criminalise interceptions carried out in another country which had an effect here in the United Kingdom. The Government are trying to ensure that the criminal law is as precise as it can possibly be, notwithstanding the important point that both the noble Viscount and the noble Lord, I suspect, are making; namely, that, obviously, communications systems are global.
As I said earlier, the Government have no evidence that extending the scope of the offence world-wide is necessary. Our criminal law must surely be limited to the conduct of our own jurisdiction. That seems to be sensible, right and proper on the basis on which we conduct our business.
Viscount Goschen: I suspect that technology moves faster than the draftsman's pen on this issue. This legislation has to be made as future-proof as it possibly can be. Is the Minister seeking to ignore that such a problem could occur?
Lord Bassam of Brighton: I am not saying that the problem could not or would not occur. The problem is very real. I am saying that the Government are trying to act within the limit of our own legal system, understanding that only those matters occurring within our own jurisdiction may be criminalised.
I appreciate the noble Viscount's point. I myself have had access to a K-World system which sends e-mails all around the world. I can quite see the problem that the noble Viscount described. The Government think that in terms of their own legislation that this is the best that can be done and that at this stage there is no need to seek to criminalise interceptions carried out in another country that might have an effect here.
I understand that we are limited within the jurisdiction of the United Kingdom. But perhaps further thought could be given to the definition of the conduct; that is, where the interception actually takes place. If one could not phrase it in terms of intercepting a transmission domestically, I would urge the Minister to look at that issue quite seriously.
Viscount Astor: Before the Minister rises, perhaps I may ask one simple question. If somebody was in France and using a system there that intercepted an e-mail which had derived from this country, had been sent within this country and had been received by someone in this countrytherefore, the interception was carried out abroadwould that be an offence under this Bill in this country? Would it be an offence in France? Is there an EU aspect to this? Have we consulted our European neighbours? One can dial up by telephone anywhere in the world and then plug into a computer. Therefore, it is where the person sits who is using the keyboard which is important. I realise that the Minister may not be able to answer this question immediately, so perhaps when he writes to my noble friend he will include an answer to my question also.
Lord Bassam of Brighton: I thought that the noble Viscount was going to ask me a simple question. It is believed that it would not be an offence because the conduct would have to be committed here. I understand that to be a general principle in criminal law. I am not a lawyer (although I live with one) but I believe that to be the case.
I am interested in what the noble Viscount, Lord Goschen, said on this. If what he said highlights something we have missed, I shall be very interested to know the noble Viscount's remedy. Perhaps there is some scope for further discussion on that point. But the Government must look at the criminal law in the light of our own jurisdiction where conduct is undertaken.
Of course, the noble Viscount is right and this legislation has to be made as future-proof as it can be. That is why the Bill is as complex as it is: the Government have tried to create a framework within which it can operate for a long period. As noble Lords will appreciate, the Interception of Communications Act 1985, though only 15 years old, has rapidly been overtaken by advances in communications. That is the problem we are attempting to tackle.
Lord McNally: I regard future-proofing as very important. But does the Minister regard international compatibility as an aim of this Bill? That is a concern. We may be inventing crimes that are purely national for a system that is obviously global.
Lord Bassam of Brighton: The noble Lord makes a very important point. Of course we have to operate in an international environment. We live in a global telecommunications/communications system. The noble Lord will have detected that I have referred to various articles relating to the European directives. We are advised by them and by the internationality of the nature of the beast with which we are dealing. Those things have been reflected on in drafting the legislation. I do entirely accept the point the noble Lord makes.
Lord Lucas: There is a point here that requires further consideration. To take the obvious parallel to that, an alleged action by two Libyan gentlemen in putting a bomb on board an aeroplane in North Africa is a crime in Scotland because that is where the consequences occurred. The fact that those gentlemen were not extracted for a long time from Libya to stand trial is surely beside the point. If an action is a criminal action, and the important part of the action takes place in this country, it should be something which is subject to prosecution in this country. The fact that people are difficult to get at is a matter for other aspects of international law.
I give an example of something that might occur under this clause. Someone in France, and without leaving France, through his own clever devices, plants a bug in the communications system of a merchant bank in London. He is thereby able to follow the course of takeover transactions and to extract valuable information which is then made use of. Under this Bill as it now stands, I believe that he is not committing an offence, but surely that should be the case. If we are faced with difficulties in getting hold of and extraditing him, that is a different question.
Lord Bassam of Brighton: I am not sure that the noble Lord has added anything new to the debate. I am not sure that the Lockerbie example is necessarily the right one. I shall think more about that, but ultimately the offence was conducted in the air space over Scotland. Although it has taken us a long time to get to the position we are presently in, I think that it was right that we followed the approach we did in seeking to try that particular case. I shall reflect further on the noble Lord's words, but I cannot promise to go any further than that.
Lord Grabiner: On that point, the conduct that we are concerned with is the interception of a communication. The concept of interception is defined in subsection (2). If the modification or interference with the system took place in the United Kingdom, which, on the noble Lord's example, it would have done because the bug would have been placed in a
Viscount Goschen: I suspect that that may be so, but deliberate online interference would not be caught. That is not physical interferencethat is, planting a bugbut rather someone sitting at a desk in Singapore sending a virus over the line to the RSB which, in turn, sends information on.
A clearer and more probable example is that provided by mobile telecommunications. For example, a man may travel from South Africa to England with a South African mobile phone. We could be standing two streets away. I could call his mobile phone and that call may be routed via South Africa although we are both in the United Kingdom. However, that transmission could be monitored in South Africa.