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Lord Cope of Berkeley: I believe that Amendment No. 48A would be more powerful than my noble friend

19 Jun 2000 : Column 13

suggests. Removing the words "it appears to him" and substituting the objective test places any court before which such an issue appears in a stronger position. Instead of the Home Secretary and his representatives having only to suggest that "it appears" to the Secretary of State, they would have to justify the case objectively. That puts more muscle behind the provision, and desirably so. As we shall no doubt discuss in a few minutes, the potential burden being placed on industry is extremely heavy.

Amendments Nos. 48B and 49A appear eminently reasonable--and that is the word they seek to insert. While my noble friend moved them in a modest way, they are important in reassuring those in the industry and others outside about what is happening as regards the legislation.

Amendment No. 50A stands in the names of noble Lords on the Liberal Democrat Benches. I do not want to pre-empt what they may say, but I believe that its object is to bring the interception of communications commissioner into the decision-making process. It is a way of ensuring that the commissioner can do this part of his job, and it is important that he should. If the Secretary of State alone, on the basis of what appears to him to be best, makes the arrangements, the commissioner may have difficulty fulfilling his responsibilities. None of us wants that.

Lord McNally: The noble Lord, Lord Cope, elegantly expressed the purpose of our amendment. We are not sure what the complete powers of the commissioner should be, but it is our plea that he should be given the technology and equipment to do his job properly.

At the start of our proceedings, perhaps I may take note of two press comments which might provide encouragement for the long hours ahead. I am afraid that we have not impressed Mr John Norton of the Observer, who believes that our work is sometime a cross between Gilbert and Sullivan and Kafka. All I can say to Mr Norton is that he is not alone in that belief. However, encouragement is to be found is Saturday's Guardian. According to an NOP poll, computer geeks are now considered the coolest kids in the class. Therefore, as we set off on another marathon sitting, I hope that some of that aura of computer geeks will rub off on some of us involved in the Bill.

3.15 p.m.

Lord Bassam of Brighton: Famously, I am not yet a computer geek. However, I am trying and practising and my son is giving me good advice.

Amendments Nos. 48A, 48B and 49A have the effect of introducing reasonability requirements as additional factors or replacements to existing terminology in subsections (1), (2) and (3). Clause 12(1), as drafted, imposes a duty on the Secretary of State to ensure that any obligations placed on communications service providers (CSPs) to maintain an intercept capability are reasonable. In our view, the three amendments do not take the requirement any further.

19 Jun 2000 : Column 14

The Government have no interest in imposing unreasonable requirements on CSPs. Initially, it is properly for the Secretary of State, after the consultation process, to come to a decision on what is a reasonable intercept capability.

Looking at the amendments, we take the view that there is not much between us. The Bill provides that the reasonableness is a matter for the Secretary of State's judgment. The amendment appears to try to make that into a form of objective test. But the concept of reasonableness implies a matter of judgment. Because it is the Secretary of State who must make the order and give the notices, it is inevitable and proper that he must decide what is reasonable in a particular set of circumstances. I suspect that that would be the case even under the noble Earl's amendment. As I said, I do not believe that there is a great deal between us. Of course, the "reasonable" requirement in Clause 12(1) is judicially reviewable and therefore the Secretary of State's judgment can be challenged as to whether it is reasonable in the circumstances.

Amendment No. 50A aims to respond to concerns that some people have expressed relating to the practical difficulty for the interception commissioner in carrying out his duties in the face of what we would all agree are considerable technical complexities relating to interception systems. The commissioner's role in that regard is clearly important and any difficulties he encountered in checking the use made of the system would be of tremendous concern to us all.

It would therefore seem sensible to include in the Bill provision for notices to specify or describe a requirement along the lines of the amendment. I trust that noble Lords will be patient with us while we consider how best to word it. We take the point made in the amendment and I can give an assurance and a commitment today that we shall give the issue careful consideration and return to it at Report stage.

I hope that in view of my comments and the commitment I have given, the noble Earl will consider withdrawing the amendment so that we can better consider Amendment No. 50A in particular.

The Earl of Northesk: I thank the Minister for that reply. I take the point made by my noble friend Lord Cope. At the back of my mind was the thought that the courts, and thereby the general public and e-commerce, should have more clout in this area. The Government have consistently said that the Bill is about striking the right balance between the needs of law enforcement and the rights of the citizen. To my mind, the amendments are a modest attempt in that direction.

I cannot speak for the Liberal Democrat Front Bench, but I am not wholly convinced by the Minister's response to my amendments. If, as he says, there is little between us, that implies some empathy with my purpose. I have no wish to bring the matter back at a later stage and therefore would like to seek the opinion of the Committee.

Lord Harris of Greenwich: I believe that that is most unreasonable. As the noble Earl will be aware, we are

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seriously disturbed about a number of aspects of the Bill. However, the noble Lord indicated that the Government are prepared to consider the issue between now and Report. I do not believe that at this stage it is sensible to seek to divide the Committee on such a matter.

The Earl of Northesk: My reason for wanting to divide the Committee is that, although the Minister was very charitable with the Liberal Democrat Front Bench amendment, I felt that he was less than charitable with my own. I have no wish to pursue this matter at a later stage in our proceedings and, therefore, I still wish to seek the opinion of the Committee.

3.20 p.m.

On Question, Whether the said amendment (No. 48A) shall be agreed to?

Their Lordships divided: Contents, 64; Not-Contents, 121.

Division No. 1


Aberdare, L.
Anelay of St Johns, B.
Astor of Hever, L.
Astor, V.
Attlee, E.
Beaumont of Whitley, L.
Blackwell, L.
Brabazon of Tara, L.
Bridgeman, V.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Byford, B.
Campbell of Alloway, L.
Carnegy of Lour, B.
Coe, L.
Cope of Berkeley, L.
Cox, B.
Dean of Harptree, L.
Dixon-Smith, L.
Elles, B.
Elliott of Morpeth, L.
Fookes, B.
Glentoran, L.
Goschen, V.
Hanham, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Howe, E.
Howell of Guildford, L.
Jenkin of Roding, L.
Jopling, L.
Lawson of Blaby, L.
Lucas, L. [Teller]
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Masham of Ilton, B.
Miller of Hendon, B.
Mowbray and Stourton, L.
Naseby, L.
Northesk, E. [Teller]
O'Cathain, B.
Oppenheim-Barnes, B.
Peel, E.
Perry of Southwark, B.
Peyton of Yeovil, L.
Rees, L.
Rees-Mogg, L.
Renton, L.
Roberts of Conwy, L.
Saltoun of Abernethy, Ly.
Seccombe, B.
Selborne, E.
Selsdon, L.
Sharples, B.
Shaw of Northstead, L.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Swinfen, L.
Trumpington, B.
Vivian, L.
Young, B.


Acton, L.
Addington, L.
Ahmed, L.
Alli, L.
Amos, B.
Ampthill, L.
Andrews, B.
Archer of Sandwell, L.
Avebury, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Blease, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Bruce of Donington, L.
Burlison, L.
Carter, L. [Teller]
Christopher, L.
Clarke of Hampstead, L.
Cledwyn of Penrhos, L.
Clement-Jones, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Cohen of Pimlico, B.
Darcy de Knayth, B.
David, B.
Davies of Coity, L.
Desai, L.
Dixon, L.
Dormand of Easington, L.
Dubs, L.
Evans of Temple Guiting, L.
Ezra, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fitt, L.
Gavron, L.
Gibson of Market Rasen, B.
Goodhart, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grabiner, L.
Grenfell, L.
Hardy of Wath, L.
Harris of Greenwich, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Hylton-Foster, B.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jeger, B.
Jenkins of Putney, L.
Judd, L.
Lea of Crondall, L.
Lester of Herne Hill, L.
Levy, L.
Lipsey, L.
Lofthouse of Pontefract, L.
Lovell-Davis, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
Mackenzie of Framwellgate, L.
McNally, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Mitchell, L.
Morris of Castle Morris, L.
Nicol, B.
Palmer, L.
Parekh, L.
Patel of Blackburn, L.
Paul, L.
Peston, L.
Phillips of Sudbury, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prashar, B.
Ramsay of Cartvale, B.
Redesdale, L.
Rendell of Babergh, B.
Richard, L.
Rodgers of Quarry Bank, L.
Roper, L.
Scotland of Asthal, B.
Serota, B.
Sewel, L.
Shepherd, L.
Shore of Stepney, L.
Simon, V.
Steel of Aikwood, L.
Stoddart of Swindon, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thornton, B.
Tomlinson, L.
Tordoff, L.
Turner of Camden, B.
Warner, L.
Warwick of Undercliffe, B.
Weatherill, L.
Whitaker, B.
Wigoder, L.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

19 Jun 2000 : Column 16

[Amendment No. 48B not moved.]

3.30 p.m.

Lord Cope of Berkeley moved Amendment No. 49:

    Page 14, line 13, after ("State") insert ("and the Technical Approvals Board").

The noble Lord said: These amendments address one of the most important issues in this very controversial Bill: the huge potential burden to be placed on industry, commerce and finance.

The burden does not just fall on Internet service providers and those in the middle of dealing with such services, but rebounds on every company that uses the Internet for business, which means every significant company in our economy. This is not just a technical

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point that concerns only a few clever companies; it concerns everybody. The Bill provides that every service company providing Internet services can be made to install a so-called black box so that all the Internet traffic that it is responsible for can be monitored.

The Home Secretary and others who support the Government keep telling us not to worry because such fears are over the top. They tell us that nobody thinks that all Internet service providers should be covered by the provisions. On the contrary, they think that the Bill will be very selective and that far fewer people will be affected than is being made out. They say that there is a lot of scaremongering going on, but in the Bill the Home Office asks Parliament for an all-embracing power to get at every e-mail that passes through this country.

The Home Office goes on to say that the United Kingdom is ahead of practically every other nation and that we are tightening up more strongly and more quickly than others, as if that were something to boast about. It is very important to look at the issue in the international context, because there is nothing more international than the Internet. It is worldwide and instantaneous and enables people to move their businesses and take their transactions and communications elsewhere very easily.

It is important that every country does its best to find a way of catching criminals who use the Internet--both those who use it in a specific, electronic way, with what one might call new types of e-crime, and those who use it for crimes that we are perfectly used to. The Internet is capable not only of making business more efficient, but of making crime more efficient. It is important to address the problem and move forward alongside other nations, but we should not make our companies--not just our e-companies but all our companies--uneconomic and uncompetitive.

The central problem is the indiscriminate nature of the power. It is a bit like a problem that someone once suggested to me involving strawberries. A government inspector might come along to a farm and say "There are grubs in some of your strawberries, but don't worry because we have found a spray that opens up the strawberries and allows us to see where the grubs are, so we propose to spray all your fields of strawberries". Of course, that will ruin the whole crop if they are not careful, and it is no good saying "Ah, but there is a fence round the field and we are not going to let other people in to look at your strawberries". If people think that all the Internet is going to be opened up, they will not do business in this country. Plenty of evidence has emerged in the past few weeks of people already making such plans in connection with the Bill.

There is also some doubt about how it will be technically possible to have a reasonable interception capability for communications over the Internet. I am a humble user of the Internet, e-mails and the web, not a technical expert, but I have talked--electronically and more conventionally--with those who know a lot more about the subject than I do. It is clear that the technical difficulties are very large. However, it is also

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clear that today's technical difficulties are not the same as those that will be around in 12 months, two years or five years.

We have seen in the past few years that technology changes very rapidly. We all know of the huge changes that have taken place, and they are speeding up rather than slowing down. That means that the technical capability to intercept communications reasonably, as we would all wish, will have to change rapidly in a short time. In those circumstances, the balance that the Home Office keeps talking about can best be kept by closely involving the Internet community--those who are on the receiving end of the controls--together with what I can loosely call the security community, which includes the police, the security agencies, Customs and Excise and others who need the interception capability.

The Bill refers to consultation. Various bodies have met to look into how the interception is to be achieved. That is fine--indeed, it is desirable--but it does not go far enough. We are dealing with a serious issue: the need to find a balance between the efficiency and competitiveness of all our industry, commerce and finance, the reasonable protection of citizens and the ability to fight crime. Parliament should consider establishing a statutory board to continue looking at these matters. The board should not just be a one-off but should continue to work as technology changes to achieve the desirable end of fighting crime without the undesirable consequences of stopping business or interfering with privacy.

The immediate proposal in this set of amendments is for a technical approvals board. I am not particularly fussed about the name nor, indeed, about the other details of the board. It is the principle behind it which I am anxious to press this afternoon.

The particular proposal which is in Amendment No. 54, in the form of a new clause, is that there shall be six members appointed by the Secretary of State as representative of persons likely to be subject to and affected by the technical obligations of the Act. So, the board will comprise not only those persons who are subject to these obligations--the Internet service providers--but also those affected by them--the companies which use the Internet. Six members of that character should be appointed to the board and six members appointed by the Secretary of State who, as the amendment provides, are representative of persons specified in Clause 6; that is, the police, security services, Customs and so on. The amendment provides also that the interception of communications commissioner, or someone appointed by him, should preside over the board which should have the power to commission such expert advice as it deems necessary. That is important too.

That is the board as it is set out in the new clause. But, as I say, I am not absolutely sold on every detail. It is important that there should be a statutory body of that kind which can bring together on a continuing basis in the future those difficult considerations which need to be brought together.

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Once the initial order under which the Secretary of State would issue notices to individual Internet service providers has been made, the technical approvals board would, under Amendment No. 53, report to the Secretary of State its conclusions as to whether the obligations imposed in the suggested order will achieve their proper purpose; are proportionate to that purpose; and will achieve that purpose also without compromising the security of communications not covered by an interception warrant.

That last point is important because one of the difficulties, as I hope my analogy with the strawberries indicated, is that quite apart from the communications of criminals or suspected criminals, which are to be targeted by all this, many innocent communications will also be opened up. That is not so with telephone tapping, for the most part. Under the present law, a warrant can be issued by the Home Secretary and the telephone of an individual suspected criminal can be tapped and his outgoing and ingoing communications can be listened to in accordance with the warrant and for the purpose for which that is necessary.

However, that is not the position with the Internet. All sorts of other communications are likely to be exposed too. Their security is of the first importance. That is why that provision is suggested in Amendment No. 53.

As I said, we can argue further about the details of this matter. But it is important that a statutory body should exist which is in a position to make recommendations to the Secretary of State. Ultimately, the amendments still leave the responsibility with the Secretary of State; for the Secretary of State to lay an order before Parliament; and for Parliament to approve it. But better regulations and orders would be put before Parliament and before the Secretary of State if the amendments were accepted and such a board were established.

The amendment does not solve the whole problem. It does not get away from the technical difficulties. But it attempts to set up a means by which the technical difficulties can be measured by the experts who must operate the system against the desirable aims of the police and other security authorities. I beg to move.

3.45 p.m.

The Chairman of Committees : As Amendment No. 53 is also being spoken to, I should point out to the Committee that there is a mistake in that amendment as printed. In line 3, "subsection (1)" should read "subsection (7)".

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