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Lord Lucas: My Lords, I am grateful for that explanation. I believe that we shall have to wait to see how the matter develops in practice. When the commissioner examines how the power is being used, I hope that he will report to us in sufficient detail so that we may see and understand what is being done. I hope that we shall be able to see from his report that, in particular, location data on mobile phones is used either extremely infrequently or frequently so that we may know whether it is an occasional practice authorised at a very high level or a regular practice due to the fact that it is such a good method of obtaining information in many types of ordinary cases. I believe that if it is the latter, we should examine this area again.

I hope that I can rely on my understanding of what the Minister said with regard to the commissioner; that is, that when he reports he will provide us with sufficient information so that we may know that that is what is happening. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 [Notices requiring disclosure]:

Lord Bassam of Brighton moved Amendment No. 14:

The noble Lord said: My Lords, this should be a fairly short debate. The amendment fills out an undertaking we gave on Report. I believe that on Report the noble Lord, Lord McNally, proposed an amendment to raise the test for serving a disclosure notice in what is now Clause 49(2)(b)(ii). I said that I would take the matter away and return with our own change in time for today. This amendment is the fruit of that activity.

I trust that the amendment will be welcomed. It is important that the Bill covers all statutory powers which conceivably may be affected by the use of encryption. However, we are aware that the current test in Clause 49(2)(b)(ii) was regarded by some as being rather too loose. I am sure that that concern was behind the noble Lord's amendment. We propose to tighten the test substantially by introducing a necessity requirement. That would mean that notices could be served only under Clause 49(2)(b)(ii) where it was believed to be necessary for the purpose of securing the effective exercise or proper performance by a public authority. I hope that the amendment will be supported. I beg to move.

Lord Cope of Berkeley: My Lords, I believe that the use of the word "necessary" in this particular sub-paragraph is preferable to the words "likely to be of value" which were used previously. It brings it into line with some of the other clauses, including Clause 49(2)(b)(i) and the others related to it. I believe that it is a helpful improvement to the Bill.

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Lord McNally: My Lords, I confirm what the Minister said. My desire was to see the bar cleared and raised a little. I believe that the Minster has done that and I thank him.

On Question, amendment agreed to.

Lord Lucas moved Amendment No. 15:

    Page 55, leave out line 6 and insert-

("( ) must describe the protected information to which the notice relates in sufficient detail to enable all those keys which would satisfy the requirements of section 50(3) and (6) to be identified;
( ) must, except where the notice includes a direction pursuant to section 50(3)(c), provide arrangements for the protected information to be delivered to the recipient in the event that-
(i) it is not already in his possession, or
(ii) it is only likely to come into the possession of any person or service in accordance with some paragraph of subsection (1);").

The noble Lord said: My Lords, in conformity with the spirit of co-operation that now exists in the House, I have copied the Government and the Liberal Democrat Front Benches with the briefing note constructed for me on this and, indeed, two other amendments by the redoubtable Dr Charles Lindsey of Manchester University. Therefore, on this occasion, the purpose and intention of my amendment will be lucidly clear. Due to my inadequacies, I am afraid that on previous occasions that has perhaps not always been the case.

This amendment attacks two related problems. First, currently Clause 49(4) does not explain how the noticee is to identify the required key where he does not have the protected information to hand. He is likely to have a number of keys which he has used on protected information. I believe that it is an important concession, made in the course of the passage of this Bill, that the person who is to release his key has the right to provide a session key if he so chooses. In doing so, he is not in any way breaching his security and he is providing the police, or whoever, with absolute evidence of the correct translation of the protected information.

However, in order to be able to deduce which session key he needs to provide, it will be necessary for him to be provided with information by the police or whoever holds the protected information. The first purpose of the amendment is to ensure that he has the right to receive that information so that he can disclose the correct key; otherwise, by not releasing that information, it would be possible for the police to make him divulge all his keys, and I believe that that would be an extremely undesirable state of play.

On Report, the Minister said that in some cases it would be improper for the Government to give the noticee the protected information. I cannot think of many cases in which that would be true. If the message is encrypted with his key, it must have been intended for his eyes. It would be inappropriate only if the police thought that they did not have all the information and did not want to disclose to the noticee how little they had and were able decrypt.

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The amendment would bring that exceptional scenario--in which the police were reluctant to give any information to the key holder that would enable him to divulge the session key or produce the plain text--within the ambit of Clause 51, which provides all the protections that the Minister has graciously given us. Without the amendment, the police would be able to escape from all the new protections in Clause 51 by failing to provide the protected information or sufficient details to enable someone to disclose the right key, thereby forcing them to hand over all the keys without the need for any authorisation at chief of police level or notification to the commissioner.

I find this a difficult and technical concept, but I am sure that, having had sight of my briefing note for a while, the Minister and his advisers will have a better understanding of what I am after.

My final point is the fundamental one. There should not be a way of forcing someone to divulge their key other than under the protections that are available--and, if we pass the necessary amendments, will be available--under Clause 51. I beg to move.

4.30 p.m.

Lord Bassam of Brighton: My Lords, the aim of the first part of the amendment is already implicit in the Bill. Clause 49(4)(b) requires that disclosure notices must describe the protected information to which the notice relates and Clause 49(4)(f) requires that they must set out the disclosure required and the form and manner in which it is to be made. We are not sure that there is a need for the universal requirement suggested by the amendment. If the disclosure of plain text was required from a legitimate organisation, for example, the amendment would be redundant. The requirements set out in paragraphs (a) to (g) of Clause 49(4) set out what all notices must include. They are not optional requirements.

I think that I understand the concern behind the first part of the amendment tabled by the noble Lord, Lord Lucas. He may be worried that persons could be forced to hand over a master key rather than, say, a session key because the authority serving the notice provided insufficient information. Clearly, a notice must contain enough detail to enable the person served with it to know exactly what is being asked of him or her. That is also in the authorities' best interests.

We are addressing that in the code of practice. We have already set out a first stab at what a disclosure notice might look like in the initial draft code that we published last week. As your Lordships will have seen, we suggest, for example, that the notice makes it clear that where the disclosure of keys is required, or where someone does not have the relevant plain text in their possession, they have the flexibility to disclose any key of their choosing that carries out the necessary decryption. To do that, they will clearly need to know to what information the notice relates. That is properly a matter best left for the code of practice.

19 Jul 2000 : Column 1039

The second part of the amendment covers similar ground. We discussed a similar amendment on Report, moved by the noble Lord, Lord Phillips of Sudbury. In this case, if a recipient of a Section 49 notice did not have the relevant protected information in his or her possession and there was no direction in the notice requiring that a key be disclosed, the person with permission to serve the notice would be required to deliver all that information to the recipient to allow him or her to decrypt it or disclose any key of his or her choosing that would decode it.

We cannot accept the amendment. As I said on Report, we recognise that there may be cases in which the recipient of a notice does not have the relevant protected information in their current possession, but has a relevant key. In such cases, providing the relevant protected information to a person may well be sensible, practical and right. There is no statutory bar to giving access to the information. However, there may be other cases in which it is not right to do that, such as when notices are to be served on persons suspected of criminality. That would make no sense. We do not believe it right that people should be supplied with the relevant protected information in all cases.

When the noble Lord, Lord Phillips of Sudbury, moved a similar amendment on Report, he wondered whether someone served with a disclosure notice who was not in possession of the relevant protected information at that time could be penalised unjustly under the Part III powers. I think that he described it as the "Willie and Steve" scenario. The short answer is "No". We recognise that the recipient of a disclosure notice will not always have the relevant protected information in their possession. In the scenario painted so ably by the noble Lord, Lord Phillips, it is entirely possible that someone may have received a message, decrypted it and destroyed it. They cannot be penalised for that. By virtue of Clause 50, they may disclose a key. If the circumstances are right, it may be possible for them to be given the protected information.

As I said on Report, we do not believe it right to include a blanket provision that a person serving a notice must in all cases provide the recipient of a notice with all the relevant protected information that they do not possess. That would be the effect of the amendment. In some cases that will be appropriate, but in others it will not. The issue is best dealt with in the code of practice. As I said on Report, we shall take away the comments of your Lordships and other interested parties and try to reflect them in fleshing out the details of the code on this point.

I hope that that will give the noble Lord some comfort and that he will feel more than able to withdraw the amendment.

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