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Lord Lucas: My Lords, the truth of it is that the Government's present position leaves Willie exposed. It appears that there is very little that the Government wish to do about it. It seems to me that there are difficulties in dealing with the problem piecemeal in trying to make it slightly more difficult for the Government or their agents to raid someone's keys and therefore expose correspondence and business to attack. The measures proposed in these amendments are sensible in themselves, but they go only part of the way. The more we hear about the Government's attitude and concerns, the clearer it becomes that we need to be more radical in our efforts to make sure that keys should be kept confidential where that is essential.

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5.15 p.m.

Lord Bassam of Brighton: My Lords, the effect of Amendment No. 57 will be as follows. The fact that someone does not have the protected information in his possession would not be enough to convert the disclosure requirement into a requirement to disclose a key. The implication is that the person served with that notice should be able as of right to obtain access to the information in order to provide the plain text.

We have already debated Amendment No. 44 which raised the same point. I explained at that stage why the idea of access to protected information in all circumstances simply would not work.

Amendment No. 58 also touches on similar ground covered by Amendment No. 44. I believe the reasoning behind the amendment is that a person served with a Section 47 notice who has only part of the key, should be able to come to some arrangement with persons holding the other parts of the key to enable the plain text of information to be accessed.

The suggestion is that a person served with a notice should be permitted to seek the assistance of any persons holding the protected information. That is very similar to the point that we have already discussed. There may be cases where exactly the kind of arrangement mentioned by noble Lords would be appropriate and in that case that would happen by arrangement with the person giving the notice.

But we cannot turn that into a general right to seek assistance. The reason is that seeking assistance from the holder of the protected information may tip off the person under suspicion. I hope that the noble Lord will accept that reasoning and feel able to withdraw the amendment on that basis.

Amendment No. 59 would delete Clause 48(3)(c) which enables a Section 47 notice to contain a direction that a key is to be disclosed by virtue of Clause 49. It seems to me that that is a consequential change to Amendment No. 71 which proposes that Clause 49 should be deleted. We shall come to discuss the merits of that amendment later on.

I can see what lies behind Amendment No. 60. As I understand it, it seeks to ensure that a key may not be required to be disclosed where there is a less onerous means of obtaining the relevant information. I believe that part of what noble Lords are seeking here is already in the Bill. In that regard I mention three matters. First, none of the Part III powers can be used unless it is not reasonably practicable to obtain the protected information by some other means. That can be found quite clearly in Clause 47(2)(d). Secondly, a person served with a notice requiring disclosure of a key can use any key at his or her disposal which puts the relevant protected information into an intelligible form. The choice of key is entirely theirs. I believe that I made that point when we were discussing this matter in Committee.

Thirdly, the service of a notice requiring key rather than plain text is tightly controlled by Clause 49. We believe that that clause provides exactly the right balance. It recognises that demanding keys requires special circumstances. The difficulty with the

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amendment is that it would undermine the effects of Clause 49. It would unsettle the balance and that disturbs us most. I trust that with those fairly clear explanations the noble Lord will withdraw his amendment.

Lord McNally: My Lords, the Minister is right in that what we are seeking is a proper balance in these matters. I do not believe that at the moment the Government fully appreciate how serious and deep is the concern about access to keys. I believe that high-tech industries use simple words for very clever and scientific matters. I have always believed that the nuclear industry could have found a better word than "flask" for carrying its nuclear waste given the implications of fragility in the word "flask". In some ways a key gives an impression of something one has on a chain on a belt rather than a complicated code which gives access to an immense amount of information.

The suspicion remains among people who hold these codes that agencies will try to obtain the most advanced codes to gain access to most information. I appreciate that during the passage of the Bill the Government have offered various reassurances to meet that concern. In a later debate we may deal with whether they are trying to achieve the impossible.

I appreciated the Minister's explanation and I hope that he appreciates the concerns about not only his intentions but also the implications of the legislation for owners of keys. In the light of his explanation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 58 to 62 not moved.]

Lord Lucas moved Amendment No. 63:

    After Clause 48, insert the following new clause--


(" .--(1) This section applies where--
(a) the person who for the purposes of Schedule 2 granted the permission for the giving of the notice in relation to that information, or
(b) any person whose permission for the giving of such a notice in relation to that information would constitute the appropriate permission under that Schedule,
considers it appropriate to give a direction in accordance with subsection (2).
(2) If the person identified in subsection (1) believes that a person to whom a section 47 notice is to be given has made, or may attempt to make, a false disclosure, he may direct that the notice may require that person to provide proof that the disclosure made truly represents the protected information in intelligible form.
(3) The requirements of subsection (2) may be satisfied by the confirmation by a firm of solicitors, designated by the Law Society, who have been provided with the claimed disclosure, the keys and the protected information that the claimed disclosure is the product of applying the keys in question to the protected information.").

The noble Lord said: My Lords, to my surprise I find myself rising to move Amendment No. 63. I had thought that I should happily follow an expert from the Liberal Democrat Front Bench.

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Having listened carefully to what the Minister has said today, I have become more enamoured not of the wording of the amendment but of the concept behind it. It is that when a business is faced with a demand for a key--I presume that business will make the most use of the measure--rather than giving it to someone who may be hostile to its commercial interests, it should be able to hand it to a third party who is trusted by both the government agency and the business. That third party should then perform the decryption. In that way, the party which requested the decryption of the information is obtaining exactly what it wants but in a way which will not give the owner of the key access to the information--the Government understandably asked for that in reply to our earlier amendments--and the owner of the key can be sure that the key will not leave his control. It is no worse for him than the idea of giving his solicitor control of the key.

I do not have a recipe for arriving at the trusted third parties but it would not be difficult. The Government merely have to let it be known that they want various people to qualify as trusted third parties. I am sure that some of the major firms of solicitors, which are never short of ideas about how to earn fees and are electronically sophisticated in particular with regard to security, would step forward; perhaps other people would, too.

The amendment would address the problems of, say, a major American investment bank deciding where in Europe to place its core security operations. It would have the comfort of knowing that in all but the most exceptional circumstances its keys and security would remain under its control and the Government would be able to obtain exactly what they wanted. They could obtain the key to use on the information which was in their possession, or on information which was to come into their possession, without the results of the decryption being available to the keyholder.

The proposal would provide a neat answer to the problems faced by industry and it would give the Government everything for which they have asked to date. The amendment, if properly phrased and organised--I make no claims that it is that--would go a long way towards overcoming the problems we have discussed today. It would also leave the Government all the facilities they require and it would leave the noble Baroness, Lady Thornton, sure that nothing about the system of protection we had devised for major companies would obstruct the access to justice which the people she rightly brings to the fore will require. I beg to move.

Lord McNally: My Lords, the Deputy Speaker, the noble Baroness, Lady Gardner, flashed steely looks at me because of the tenuous hold I have on Report stage proceedings. As I would have withdrawn the probing amendments had I moved them, I slip in behind the noble Lord, Lord Lucas, to make the point that I would and should have made, which is that we are looking to provide industry with comfort and assurance. Ministers appear to work on the basis that everyone believes that government agencies will

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behave with absolute propriety and security. Yet, as has been pointed out on a number of occasions, the legislation is being examined not only by those of us who have grown up in the comfort of British society but by those on the outside looking at its cold print.

We are probing whether the kind of comfort and cordon sanitaire which exists between providing the agencies full access and access to the information they legitimately require cannot be provided by the kind of device proposed by the noble Lord, Lord Lucas.

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