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("( ) The duty of any person under this section shall be enforceable by civil proceedings against that person by the person on whom the section 47 notice was served, or by any associate or customer of his who has suffered damage.").

The noble Lord said: My Lords, we are all agreed--and government Amendment No. 86 has just tightened up the provisions--on the importance of the security of keys that are obtained. Nevertheless, with the best will in the world, it is to be expected that at some point that security might be breached, by human error or some other event. If one of the officials of an agency charged with the responsibility for secrecy does not carry out his duty sufficiently, the amendment suggests that civil proceedings against that person should be possible following a breach of security. The damage could be considerable.

There are two reasons for suggesting an amendment of this character. First, it would have the practical effect of ensuring that, if someone suffered damage as the result of the loss of a key by a policeman or anyone else, he would obtain some compensation through civil

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proceedings. Secondly, the fact that an action for compensation might be brought would be a great spur to all concerned to make sure that the keys were securely kept, a spur which would have behind it the ingenious stimulus that the more important the key was in financial terms, and hence the larger the potential loss if there were civil proceedings of this character, the more careful people would be to retain its secrecy. This is again a question of reassuring those who are likely to be involved. I believe that this would be an improvement. I beg to move.

Lord Bassam of Brighton: My Lords, we understand the great concern surrounding the conditions in which keys are stored. We said in Committee that we believed that a private law action would indeed exist if a breach of the necessary duty of care and a degree of negligence were proven. Noble Lords have come back with an amendment to put the matter beyond doubt.

On reflection, we agree that the industry and the public have a right to know whether or not Parliament intends a civil liability to exist in these circumstances. The noble Lord opposite has taken good advice. We therefore accept the amendment in principle. I would, however, ask the noble Lord to withdraw it. We, for our part, undertake to consider this matter urgently to see what, if any, amendment is needed to give effect to the principle that owners of keys or of protected data who suffer damage as a result of a breach of the duty imposed by Clause 53 may sue. If the noble Lord is content to withdraw the amendment, we shall take the matter away, having accepted the principle, and return with a provision that we think will fit the bill--as it were!

Lord Cope of Berkeley: My Lords, I hope that it will not be too large a bill! I am pleased that the Minister has accepted the principle. Listening carefully to the words he used, I did not quite detect whether an associate or customer of his who suffered damage would be included in the provision, and I shall not ask him at this point to confirm that. I merely want to ensure that he looks at that point when considering the revised draft. It may be covered automatically by the fact that a customer would be in a position to sue the principal and, therefore, the principal would suffer damage that way and the compensation would, as it were, flow through. In any case, I am pleased that the principle has been accepted. I have no pride in the draftsmanship of the amendment by comparison with those clever fellows the parliamentary draftsmen. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 88:

Page 59, line 22, leave out subsection (4).

On Question, amendment agreed to.

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Clause 54 [Interpretation of Part III]:

Lord Bassam of Brighton moved Amendment No. 89:

Page 59, line 37, at end insert--

(""chief officer of police" means any of the following--
(a) the chief constable of a police force maintained under or by virtue of section 2 of the Police Act 1996 or section 1 of the Police (Scotland) Act 1967;
(b) the Commissioner of Police of the Metropolis;
(c) the Commissioner of Police for the City of London;
(d) the Chief Constable of the Royal Ulster Constabulary;
(e) the Chief Constable of the Ministry of Defence Police;
(f) the Provost Marshal of the Royal Navy Regulating Branch;
(g) the Provost Marshal of the Royal Military Police;
(h) the Provost Marshal of the Royal Air Force Police;
(i) the Chief Constable of the British Transport Police;
(j) the Director General of the National Criminal Intelligence Service;
(k) the Director General of the National Crime Squad;").

On Question, amendment agreed to.

Lord McNally moved Amendment No. 90:

Page 59, line 42, at end insert (", and does not affect the intelligibility or accessibility of that communication or data").

The noble Lord said: My Lords, Clause 54 is an interpretation provision. Amendments Nos. 90 and 91 refer to electronic signatures. I recently saw on television President Clinton making a great to-do about the acceptance of electronic signatures, which are clearly of importance. I do not believe that I have one at the moment. However, fairly soon they will become a "must have". Those who know about these matters believe that these amendments help to make even clearer that signature-only keys are free from disclosure. Moreover, to extend the definition in this way describes the essential feature of an electronic signature; namely, that it does not serve to obscure anything.

The second amendment in the group ensures that the key as it applies to decryption is always used to unscramble something that has been deliberately concealed, which is surely the essence of encryption. We believe that these are constructive suggestions for the definition of an electronic key and put them forward in that spirit. I beg to move.

Lord Lucas: My Lords, at this stage I should perhaps address Amendment No. 92 since it covers exactly the same subject but in a slightly different way. I believe that the current definition of "key" does not embrace the use of that word as an electronic signature, and the use of the word "key" in the Bill in various places does embrace the use of that word as an

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electronic signature. Therefore, this small addition will bring the definition of "key" into line with the way that it is used in the Bill.

Lord Bassam of Brighton: My Lords, Amendment No. 90 takes us back to the debate yesterday about the protection which the Bill affords to electronic signatures. We also debated an amendment in almost exactly the same form at Committee stage. To reiterate, we recognise that it is difficult to provide a definition in statute for what is essentially the electronic equivalent of a manual signature. However, we believe that what we have by way of a definition in Clause 54(1) is clear enough. The important words are to be found in Clause 54(1)(c) which states that an electronic signature is anything in electronic form which,

"is used for the purpose of facilitating, by means of a link between the signatory or other source and the communication or data, the establishment of the authenticity of the communication or data, the establishment of its integrity, or both".

We believe that that is where the definition should stop. On final reflection, we believe that the effect of the addition suggested by Amendment No. 90, although it is intended to be helpful, is dubious. Authenticity and integrity are the crux of the matter. This is not about intelligibility, which is a different issue.

The definition of "electronic signature" in Section 7(2) of the Electronic Communications Act 2000 refers only to authenticity and integrity, and we believe that the definition here should follow in a similar way. There are dangers in moving away from the definition in that Act. For example, a wider interpretation in this Bill may jeopardise the proper construction of that Act.

We have considered the rationale behind Amendment No. 91 and believe that it is flawed. It stems from a belief that PACE is sufficient to do what this Bill seeks to achieve. We debated that yesterday when examining an amendment tabled by the noble Lord, Lord Lucas. The fact is that, regrettably, PACE is deficient in this respect. As my noble friend Lord Bach said, ground-breaking though the Act may be there is no clear power to require the disclosure of protected material in an intelligible form--and "intelligible" is the important word here. Amendment No. 91 seeks to insert an element of intention into the definition of what constitutes a key by making reference to data that has been "deliberately processed". We believe that that is wrong. It also attempts to include a reference to an electronic signature which is better left separate. We believe that the definition of "key" in Clause 54 is precise and clear. With the greatest respect to the noble Lord, we believe that the suggested alternative is less than clear.

I turn briefly to Amendment No. 92 spoken to by the noble Lord, Lord Lucas. It is plain from the speech of the noble Lord that the amendment seeks to widen the definition of "key" to include those used to establish the authenticity or integrity of data. As the noble Lord said, that amendment follows on from the others. We

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have looked at the definition of "key" in Clause 54 and believe that what we have arrived at is clear and workable. We are not convinced that the additional limb to the definition is appropriate. We believe that it seeks to include something that is more appropriate to the definition of an electronic signature. In so far as the only reason for mentioning signatures in this Bill is to exclude them from what can be accessed as keys, it seems to us to be unhelpful specifically to include these signatures in the definition of "key" in the first place, only to exclude them at some later point.

We believe that the definition of "key" for the purposes of this part of the Bill is cast correctly. We recognise that the amendments spoken to by the noble Lord, Lord McNally, and the noble Lord, Lord Lucas, seek to be helpful, but they would add extra, and perhaps confusing, substance to the definition. I hope that, having understood where the Government come from on this matter, both noble Lords will not press their amendments.

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