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Lord McNally: My Lords, I am sure the Minister knows that, almost while he speaks, the CyberLaw Research Unit will be looking at every word. In the meantime, until I receive a response from the group, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 78 to 80 not moved.]
Lord Cope of Berkeley moved Amendment No. 81:
- Page 57, line 43, at end insert--
The noble Lord said: My Lords, this amendment also refers to the secrecy provisions. It makes a specific proposal that it should be in order for a person in this situation to share the requirements with which he must comply with someone whose duties involve compliance with legal requirements or the security of electronic communications or transactions. In a case of this kind, where it might involve a company of any size, experts are frequently on hand. Quite frankly, in many cases the directors of the company will not be able to achieve what is required by the notice unless they are able to use their own staff.
The amendment is restricted. Paragraph (b) does not greatly widen the protection but is intended to make it more practicable. We do not wish to see a situation where the directors of a company are unable to comply with the notice because they are not allowed to use the necessary skilled staff. I beg to move.
Lord Bassam of Brighton: My Lords, I appreciate some of the concerns which lie behind this amendment. I hope to explain why the protection sought is already present in the Bill. For that reason the amendment would be an entirely unnecessary addition. This covers ground similar to that we discussed yesterday when we considered Amendment No. 54A.
It is important to stress again that a secrecy provision will not be attached to all Clause 47 notices. I believe that a misapprehension has crept in here. There is simply no need for this. The occasions when a
Where a secrecy provision is included in a notice, it has never been the intention of the Government to penalise individuals other than the person served with the notice within an organisation, for example, who may need to be informed about the notice--either to enable the notice to be complied with, or to retrieve or produce the plain text of protected material, or to ensure that proper steps are taken afterwards to maintain the security of any systems. It is right that that should be the case.
The Bill allows such disclosures to be authorised either by the terms of the Clause 47 notice itself or by the person serving it without such disclosures falling foul of the tipping-off offence. I am sure the noble Lord will be aware that the statutory defence is clearly set out in Clause 52(9). Notices will set out who may be authorised to know about them. They will not, as envisaged by the way in which the amendment is drafted, say who should not be informed. That is not the way in which the clause works.
The persons within an organisation who may properly be authorised to know about a notice are likely to vary from case to case. This is where the practical implementation of the legislation becomes important. I believe that we made clear in the initial draft code of practice that the person serving a Clause 47 notice which contains a secrecy provision will need to take all reasonable steps, either before the notice is served or at the time it is served, to ascertain who may reasonably need to know about its existence. Proper disclosure may then be authorised. This is the basic position as set out in the code. As we explained yesterday, we shall be more than happy to receive comments from the industry about how this will work from case to case.
In summary, the protection sought by the noble Lord's amendment is already in place in the Bill. There is no intention to penalise legitimate practices within an organisation. We have already set out in the initial draft code of practice some idea of the way in which we see Clause 52 working and we welcome comments from the industry about the practicalities of those issues.
With that explanation, I trust that the noble Lord will feel able to withdraw his amendment.
Lord Cope of Berkeley: My Lords, as we have said on many previous occasions, we are concerned about the practical application. The Minister has recognised that that is entirely the purpose behind the amendment. However, he has given an assurance that it is unnecessary in that respect. In spite of the charges made by the noble Baroness, Lady Thornton, who entered our debates for a short while earlier, we are concerned with the practicalities. I do not wish to press
Amendment, by leave, withdrawn.
[Amendments Nos. 82 to 85 not moved.]
Clause 53 [General duties of specified authorities]:
Lord Bach moved Amendment No. 86:
The noble Lord said: My Lords, this amendment would place on the face of the Bill a requirement for any key obtained under the Part III powers to be stored in a secure manner for as long as it is retained.
We discussed this issue in Committee following amendments proposed by the noble Lords, Lord Cope and Lord McNally. We have reflected on the constructive discussion that your Lordships initiated on this matter and on the representations that we have received from industry and others on the issue. The result is this amendment. We hope that it will be welcomed.
Perhaps I may stress a point that I made in Committee We see clearly the need to store very securely all sensitive material obtained under the Bill. As regards Part III, Clause 53 already sets out strong safeguards governing the retention, copying and destruction of material obtained under the new powers. Those safeguards are described in practical terms.
The safeguards arrangements in Clause 53 will be overseen by independent commissioners who will have a statutory responsibility to examine the adequacy of the arrangements, and to report any inadequacies to the Prime Minister.
All this said, we have reflected on the position as regards the Bill itself and, in line with amendments tabled by noble Lords previously, we have proposed our own change. This places a statutory requirement on the face of the Bill for keys to be held securely. I hope that this offers a degree of comfort to the House and to those interested parties outside.
How the provision is taken forward in practice is properly a task for the technical project to establish the dedicated resource--the technical assistance centre--that we are putting in place to assist law enforcement over encryption. Deploying the highest level of protection for keys and other sensitive information relating to keyholders is a specific objective of this project. That includes the security of data and keys being transported to the centre, whether physically or electronically. The commissioners will have access to the facility. Providing reassurance that it is properly executing functions derived from the legislation is, we recognise, essential. I beg to move.
Lord Cope of Berkeley: My Lords, I welcome the amendment.
Lord Phillips of Sudbury: My Lords, we too welcome the amendment. However, I have two points for the Minister. First, is it not the case that in the code of practice the requirement is merely that the keys are kept secret, rather than that they are stored securely? Is there not a significant difference between the two? "Storing securely" means just that; "keeping secret" could mean a police sergeant putting a key in his desk.
Secondly, am I right in thinking that the amendment covers only intercept warrants and that it would not, therefore, cover keys obtained by the police under PACE provisions or keys obtained under the provision in Clause 47 where they are likely to be of value, or indeed keys obtained by other non-statutory means? I am sorry to bowl those balls at the Minister with no notice, but I did not have notice myself. In the event that, understandably, he cannot answer these queries here and now, will he review the matter? If I am right in thinking that those matters may not be covered, will the Minister at least give a semi-assurance that sympathetic consideration will be given to covering them? They would seem to fall within the ambit of the policy that he outlined in moving the amendment.
Lord Bach: The noble Lord asks fair questions, but I shall not pretend that I know the answer to all of them as I stand at the Dispatch Box. The government amendment writes the words "in a secure manner" on to the face of the Bill. I am told that the codes to which the noble Lord refers--I am full of admiration for his having read them already in their draft form--will be revised to reflect this amendment. I think that that may go a long way to satisfying him. I am also told that the amendment will cover all keys.
On Question, amendment agreed to.
Lord Cope of Berkeley moved Amendment No. 87:
("( ) In proceedings against any person for an offence under this section in respect of any disclosure, it shall be a defence for that person to show that the person to whom he made the disclosure--
(a) was not named in the notice as someone who should not be informed, and
(b) was a person employed by the same employer on duties involving compliance with legal requirements or involving the security of electronic communications or transactions.").
Page 59, line 11, at end insert--
("( ) that, for the purpose of ensuring that those requirements are satisfied, any key so disclosed is stored, for so long as it is retained, in a secure manner;").
7.15 p.m.
Page 59, line 14, at end insert--
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