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Lord Phillips of Sudbury: My Lords, if the noble Baroness, Lady Thornton, believes that we are under the control of the foundation to which she referred, she gives little credit to the many noble Lords on this side of the House. That foundation is an extremely public-spirited one. The fact that it receives money from Microsoft does not align it with the devil. Without its assistance many of us on these and other Benches would have been a good deal more befuddled than we already are.
I have two other points to make. First, a leitmotiv has run through the Bill that the powers taken by the state should be proportionate to the dangers against which it legislates. Secondly, in looking at the overall impact of the Bill, one must have regard to the economic well-being of the country. It is ironic that both those issues are at the heart of the clause to which this amendment relates.
On this side of the House the case is that however well intentioned the arrangements are, as they stand, the Government would do better to listen more carefully to what is now a diverse chorus of concern from the business industry and, therefore, would be wise to accept the proposal that in order to issue one of these particularly vicious requirements for disclosure of keys, the authority of the Secretary of State must be obtained. Ultimately, one comes to a common sense, broad judgment. Simply piling extreme power on extreme power, as though that will best deal with the evils that we all want to prevent, is misconceived. Often the best law is that which has a degree of restraint in it and the worst law is that which purports to destroy or oppress evil with the absolutism that is apparent in some of the clauses of this Bill.
Lord Bassam of Brighton: My Lords, contrary to what may be presumed, I have rather enjoyed this debate. Politics have been brought into something that runs the danger of becoming a dry, technical subject. I am not sure whether I am a Rottweiler or a spaniel. Sometimes I am a Rottweiler and sometimes a spaniel--at least that is what my children tell me.
I was pleased when eventually a Member of your Lordships' House mentioned the issue that we are debating. We have had a lot of high-flown language about the Government and their attitude to industry; whether we have got it right or wrong; and whether we understand how intrusive and vicious the powers are. However, the debate is about the level of authorisation
for access to encryption. That is a rather dry subject. I suppose the debate has become a metaphor for the approach and scepticism, not to say cynicism, of many noble Lords to the Government's real and underlying intentions in regard to this piece of legislation.My noble friend Lord Bach was quite right to bring us back down to earth with a blast of reality. As he rightly said, the Liberal Democrats supported this Bill in another place. The noble Lord, Lord McNally, welcomed the Bill at Second Reading. Many other noble Lords indicated in our debates that they welcomed the Bill. They understand that in large measure it updates an out-dated piece of legislation and provides many more safeguards than existed in the Interception of Communications Act 1985. It strengthens the position of the public and guarantees liberties and freedoms which we are latterly being accused of attempting to undermine and destroy.
I want to focus on the subject in front of us: levels of authorisation for encryption. That is what we are talking about. In a sense the Government and the Opposition Front Bench are fishing in the same pool. We both realise that there has to be confidence in the level at which authorisation is sought.
It is our view that, on balance, we have got the level right in our amendments. I am puzzled as to why the noble Lord, Lord Cope of Berkeley, has such a poor view of the rank of chief constable, which is the level at which we suggest authorisation should be granted. To require a chief constable's personal authority is an impressive safeguard and I do not follow the argument that important operational decisions must be made by someone who is accountable to Parliament. The decisions to arrest a suspect, to bring charges or to deploy resources in a public order situation are not made by Ministers. They are quite rightly the operational decisions which finally rest at chief constable level. Yet the noble Lord, Lord Cope, suggests that somehow that level of authorisation is wrong and inappropriate for this piece of legislation.
We recognised and understood that superintendent was perhaps not the right level. For that reason we raised the threshold. That is a significant move on our part. Having listened to everything that has been said during the course of this debate, I continue to be perplexed at the cynicism or scepticism at the bona fides of our levels of authorisation process. We have worked hard throughout this Bill to try to get it right. We listened to the many representations. We continue to listen to them. We must focus on the practicalities of the situation.
As we all understand, particularly noble Lords opposite who have had ministerial experience, a Secretary of State is an important and busy person. Is it right that he should be confronted with this extra and more onerous task of applying these authorisations? That is an important question. Is it right that a Secretary of State should have his time potentially crowded by this extra level of consideration when, quite properly, a chief constable could undertake that work? Changing referral from superintendent to chief constable level indicates that
we fully understood and took on board the seriousness of the representations made to us about levels of authorisation.I accept that businesses have a real and legitimate concern--and we have sought to address it. But this does not apply only to businesses. We are also concerned about the individual in possession of an encrypted hard drive who refuses to hand over plain text. As many have argued in another context, there may well be cases when an individual considers it to be in his best interests not to hand over plain text or indeed to hand over plain text which is different from that which is truly covered by the encryption in question. In that regard I am thinking of paedophiles who may be hiding data on their hard drives or others with data they want to protect for similarly scurrilous purposes. It would be a significant burden for the police to cross, that they should have to go to their chief constable every time they wished to demand that someone suspected of such activity should hand over an encryption key. But that is what our amendment provides. We tried to balance the concerns of industry with the concerns of all Members of this House who wish to stamp out the kind of criminal activity that can now be perpetrated on computers.
It is for that reason that I believe that the sentiments in Amendments Nos. 64, 67 and 68, while I appreciate their origins, go too far. To remove all those decisions to the Secretary of State, particularly those cases where individuals in possession of data themselves are refusing to hand over keys, would be both unnecessary in terms of the need to protect privacy, and could act as a considerable impediment to normal law enforcement operations. I urge Members of your Lordships' House to bear that firmly in the forefront of their mind in considering these amendments.
We are concerned to assuage the worries of business. We shall continue to do that. I undertake to intensify our efforts in that regard. But we are also concerned to ensure that law enforcement has a credible deterrent in respect of some of the more vile crimes that can be perpetrated through computers. We feel that our amendments strike the right balance and that amendments tabled by noble Lords opposite go too far. They would seriously undermine the capability of law enforcement. In short, we are all concerned to protect business but we must not forget that this power is aimed at individuals who conceal their illegal activities through the use of encryption. Powers truly are needed in this regard and will be more so as easily accessible encryption spreads, as all Members of your Lordships' House who have contributed to this and other debates fully recognise.
Finally, I ask noble Lords to consider just how far we have increased the level of authorisation in the government amendments in this group. But I want to offer one further element of flexibility that the Government have and which I would be more than happy to bring back as an amendment at Third Reading. We are prepared, in so far as it will offer extra reassurance both to civil libertarians and the industry, to require chief constables or their equivalents to notify the Surveillance Commissioner of
circumstances in which they have used their power to demand a key rather than make an ordinary disclosure requirement. That would place a duty on them to bring specifically to the commissioner's attention the fact that they had used the power. What he wished to do in terms of oversight would obviously be up to the commissioner. But that would be an extra and significant safeguard in that it would bring the matter specifically to the attention of the commissioner in his role of providing judicial oversight. If that were not the case, whether he took an interest in particular authorisations under his compass would be left to the discretion of the commissioner.I believe that adds an extra significant safeguard, while recognising the fact that in a small number of years the police are likely to be faced with strong, unbreakable encryption on all home computers which can be used to conceal crimes of all varieties. It is for that reason that I believe that moving to Secretary of State authorisation is a step too far. However, I am prepared to move one further step at Third Reading and I hope that Members of your Lordships' House understand why I made that undertaking. We have to be practical. We have to be pragmatic in addressing these authorisation levels. These matters must be carefully borne in mind. We need something that works, that is effective and with which the police can work so that we can stamp out and crack down on some of the most unpleasant and heinous crimes. I urge your Lordships to reject Amendment No. 64.
6.15 p.m.
Lord Cope of Berkeley: My Lords, during some parts of that short debate I began to think, as the Minister evidently did, that we had wandered back into Second Reading; or that we could look forward to Third Reading and Bill do now pass in discussing the general issues behind the Bill. I do not want to go back into that.
Amendment No. 64, as the Minister said, concerns levels of authorisation. Should the Secretary of State authorise the provision of keys or the insistence on keys as he does the tapping of telephones, or should chief constables do so under Amendment No. 66? It is not that I have a poor view of chief constables; on the contrary, I respect them highly. However, I also have a high view of the seriousness of requiring a key compulsorily by law from commercial and other organisations, or from individuals.
The suggestion made by the Minister at the end of his remarks about the involvement of the commissioner is an interesting one and well worthy of consideration. But, after all, everything that the noble Lord said in arguing against the proposition in my amendment would apply equally to telephone tapping. Indeed, everything he said about the convenience for the police, and so on, would apply equally to telephone tapping; yet no one, not the Government or anyone else, is suggesting that we should alter the Secretary of State's warrant in that respect.
In the course of our debates both the Government and noble Lords on this side of the House--indeed, the House as a whole--have, together, improved the Bill
in quite a number of ways. I believe that the proposition in my amendment is yet another way in which we could further improve it. I urge noble Lords to support my amendment.6.20 p.m.
On Question, Whether the said amendment (No. 64) shall be agreed to?
Their Lordships divided: Contents, 119; Not-Contents, 120.
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