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Lord McIntosh of Haringey: My Lords, it is not possible for me to say when Royal Assent will be given. However, if we were to assume for the sake of argument that Royal Assent were given by Thursday of next week, the orders could be laid immediately and would come into force at midnight on 28th October. That would be somewhat late for the ice cream trade but in good time for the hot dog trade!

Lord Brougham and Vaux: My Lords, I am grateful to the noble Lord.

On Question, Bill passed.

Television Licences (Disclosure of Information) Bill

Report received.

Regulation of Investigatory Powers Bill

3.56 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.--(Lord Bassam of Brighton.)

On Question, Motion agreed to.

Clause 48 [Effect of notice imposing disclosure requirement]:

Lord Lucas moved Amendment No. 55:

The noble Lord said: My Lords, I am very much fortified by my success last night on a similar amendment similarly inspired by the notable Dr Charles Lindsey of Manchester University. I am trying yet again to convince the parliamentary draftsmen that they have their grammar wrong.

Clause 48(1) states,

    "both the protected information and a means of obtaining access to the information and of putting it into an intelligible form".

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"Both" qualifies two subjects, not three. In any event, the two latter points,

    "a means of obtaining access to the information and of putting it into an intelligible form";

are not both necessary for the purposes of this clause. You need one or the other. I hope that this redrafting will appeal to the Government as it did last night. I beg to move.

Lord Bassam of Brighton: My Lords, I am, as ever, grateful to the noble Lord, Lord Lucas, for his tremendous concern for the English language and linguistic correctness, if I may so describe it. However, I am extremely puzzled by the amendment. My brief states:

    "Resist ... Purpose of amendment unclear. Imposes requirement to disclose plain text on persons who have no means of obtaining access to the information; or no means of putting it into intelligible form".

I almost expected to see a reference to "intelligible life form".

Unfortunately, in attempting to correct the parliamentary draftsmen--as the noble Lord did so expertly yesterday--he has fallen into the trap of perhaps causing more problems than he has sought to solve. Subsection (1) of Clause 48 is the basic disclosure requirement. It requires persons to disclose a plain text version of the protected information. It also makes it clear that there is no legal obstacle to their using their own key to decrypt the information so that they are able to deliver the plain text. According to subsection (1), this requirement works only if three conditions are met. Effectively, by his amendment the noble Lord is asking whether we need all three conditions, and so it falls to me to explain them.

The first condition is that the person is in possession of the protected information--there is no argument between us on that. The second condition is that the person must have a means of obtaining access to that information. I think it is pretty obvious that the purpose is to make clear that a notice does not entitle the recipient to obtain access to the information. Noble Lords will recall that on Amendment No. 44 we explained precisely why we do not agree that there should be such a right. The third condition, in plain and simple terms, is that the person has the means of putting the information into intelligible form. I should be very surprised if the noble Lord intended that condition to be at all optional. A requirement to deliver plain text cannot properly work without all of these conditions being fully satisfied.

The noble Lord has rightly sought to correct an inadequacy in the drafting, but in so doing he has undermined the working principles behind the way in which we see the clause operating. Obviously I take the point about the drafting--perhaps we should look at that again--but I ask the noble Lord, having scored his instant hit yesterday after many years of trying, to withdraw his amendment.

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4 p.m.

Lord Lucas: My Lords, I am not surprised. There are a couple of points that I still do not understand. If a person is in possession of the information, how can they be lacking a means of obtaining access to it in the way described by the noble Lord? Having listened to the noble Lord, would not it be sensible if the word "both" was left out?

I remain puzzled by the wording of the clause and the way it will work. But I shall not detain the House now; I shall study in Hansard what the noble Lord said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cope of Berkeley moved Amendment No. 56:

    Page 54, line 17, at end insert--

("( ) Where a person who has been given notice under section 47 believes that compliance with the notice will involve breaching a legal duty of confidentiality to another person, he may, within 24 hours of receipt of the notice, refer the notice to the Interception of Communications Commissioner who shall rule whether that person shall breach that other legal duty or whether the notice shall be withdrawn as disproportionate, having regard to the effects of the notice in either case.").

The noble Lord said: My Lords, this amendment has been brought forward because of the concerns of bankers and others in London that a conflict may arise in their obligations as a result of the Bill. The concern has been expressed to me by a number of organisations and companies that the provisions of the Bill may conflict with both their ordinary legitimate business arrangements so far as concerns commercial confidentiality and with the legal obligations they owe to their customers world-wide. After all, a key--which is what this clause is all about--that can be used to decrypt one message may also be capable of decrypting other messages which are nothing to do with the crime or possible terrorism--whatever it is that is being investigated--for which the key has been requested.

In these circumstances, they are extremely concerned, first, that they may face enormous legal challenges and, secondly, that their business will emigrate overseas. Any perception--and perception matters here quite as much as the reality--by customers and financial institutions that doing business in this country, in London or elsewhere, would be less secure because the confidentiality of encrypted messages was not protected as thoroughly as elsewhere could have a significant adverse impact on this country as a place to do business, particularly e-business, and on London's attractiveness as a financial centre.

Of course, to some degree it is a question of comparison of perceptions; that is one of the disadvantages of the Government's proud boast that they are in the lead in taking powers to tap the Internet in this way. That is why we have attempted in Amendment No. 56 to suggest what might happen when an organisation, a company or a person has been given a notice under Clause 47. If they believe that to comply with the notice will be to breach a legal duty of confidentiality to someone else, they should have

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somewhere to go--in the amendment we suggest the commissioner--to decide which of the legal obligations they should honour.

Where they are placed in the dilemma of whether to dishonour the legal obligations they have entered into with their customers or to disobey the legal notice with which they have been served, it seems to us that the commissioner--the judicial figure--would be the right person to decide which of those legal obligations should be carried out having regard to the importance of the case, the importance of the investigation, the importance of the key and so on, on the one hand, and the effects on the business of giving way and obeying the notice on the other.

We have suggested 24 hours as the time within which the recipients of the notice should be allowed to appeal. The danger will be immediately obvious to them, but while an appeal was running it would hold up the authorities--the police or whoever wanted the key--and they should not be allowed an infinite time for that. We think that 24 hours is a fairly minimal time but that is the suggestion in the amendment. We have not necessarily found a perfect solution but the amendment draws attention to a very real and potentially very damaging problem. I beg to move.

Viscount Goschen: My Lords, my noble friend's amendment is a welcome initiative to highlight one of the central concerns that industry has about the Bill. Of course, in the matter of encryption keys and the disclosure of those keys to public authorities, the potential effect goes far wider than those businesses which are actively involved in e-commerce; it goes to all businesses, particularly those of an international nature.

A provision whereby members of staff or the directors of a firm are put into a position of jeopardy and run the risk of breaching confidentiality undertakings with clients and other people with whom they have interaction is one of the central areas of difficulty over the Bill. My noble friend Lord Cope has suggested one solution--which I am sure would add a significant degree of comfort--but he has also indicated that he is not necessarily wedded to every detail of the amendment. So there is a good opportunity for the Government to come forward and say how they propose to address the situation.

I caution the Minister against saying "Don't worry. There is no difficulty. This is pure perception". The first point is that there are a number of people and bodies that would not agree with that point of view; the second point is that, even if the Government were very confident of their argument, there is still a significant problem of perception. The Minister cannot possibly be in a position to understand all the intricate contractual obligations that business might have made with customers in these circumstances. I suggest that it would be very difficult for the Minister to brush those aside.

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There is a real opportunity here for the Government to be constructive and give some additional comfort to industry. My noble friend has highlighted a significant point. I hope that the Government will take this opportunity.

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