Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Bassam of Brighton: My Lords, I am not sure that there is a simple answer to that question. As I explained to the noble Lord, Lord Howell, if the individual does not have access to the key or know where it is clearly it cannot be disclosed. In those circumstances, that is not only the end of the story but a perfectly reasonable defence. If those are the circumstances envisaged by the noble Lord that is probably also an answer to the point.

Lord Swinfen: My Lords, before the noble Lord sits down, my question does not relate to circumstances in which the individual does not know the key. I am concerned with those cases in which the individual knows the key but may incriminate himself by disclosing it. As I understand it, in this country no one is bound to incriminate himself.

Lord Bassam of Brighton: My Lords, I believe that in the circumstances described by the noble Lord it would not necessarily be a defence; nor do I believe that in this area the law is finally settled.

Lord Marlesford: My Lords, now that Hansard can be quoted in the courts, was the noble Lord being serious when he said a moment ago that if an individual did not have the key, or did not know where it was, that would be the end of the story? Frankly, if that is all that an individual has to say and there is no possibility of proceeding further it makes the whole exercise pointless.

Lord Bassam of Brighton: My Lords, I rest on my earlier explanation. The advice that we have been given is that that is the case, and we shall stick to it.

Lord Nolan: My Lords, the principle against self-incrimination has been breached many times by statute. Whenever a motorist is required to take a breathalyser test he may well incriminate himself. The principle against self-incrimination can be overridden by Act of Parliament.

Lord McNally: My Lords, many years ago when I served a Minister one of the ways to get brownie points was to introduce in debate a few damning quotations

19 Jul 2000 : Column 1072

from the other side. In those circumstances, I extend my professional compliments to the noble Lord's support staff.

From the very start, everyone has acknowledged that we are trying to ride two horses at once. Perhaps I may cite the late Jimmy Maxton: "If you can't ride two horses at once, you should never have joined the circus". This has been a Home Office security Bill and a trade and industry Bill stitched together rather hastily. It has been our task to try to improve it.

I do not regret tabling Amendment No. 28. In fact as the debate unfolded I felt more and more sure that we were right to do so not least because of the response it provoked from the Minister. At this late stage, at Third Reading, the response contained some useful and clear statements on where the Government believe they have reached on this matter. We have expressed doubts; the Government have expressed their confidence. It has never been the wish of these Benches to wreck the Bill. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 53 [Failure to comply with a notice]:

[Amendments Nos. 29 and 30 not moved.]

Clause 54 [Tipping-off]:

[Amendments Nos. 31 to 33 not moved.]

Clause 55 [General duties of specified authorities]:

Lord Bassam of Brighton moved Amendment No. 34:

    Page 62, line 7, at end insert-

("(4) Subject to subsection (5), where any relevant person incurs any loss or damage in consequence of-
(a) any breach by a person to whom this section applies of the duty imposed on him by subsection (2), or
(b) any contravention by any person whatever of arrangements made in pursuance of that subsection in relation to persons under the control of a person to whom this section applies,
the breach or contravention shall be actionable against the person to whom this section applies at the suit or instance of the relevant person.
(5) A person is a relevant person for the purposes of subsection (4) if he is-
(a) a person who has made a disclosure in pursuance of a section 49 notice; or
(b) a person whose protected information or key has been disclosed in pursuance of such a notice;
and loss or damage shall be taken into account for the purposes of that subsection to the extent only that it relates to the disclosure of particular protected information or a particular key which, in the case of a person falling with paragraph (b), must be his information or key.
(6) For the purposes of subsection (5)-
(a) information belongs to a person if he has any right that would be infringed by an unauthorised disclosure of the information; and
(b) a key belongs to a person if it is a key to information that belongs to him or he has any right that would be infringed by an unauthorised disclosure of the key.
(7) In any proceedings brought by virtue of subsection (4), it shall be the duty of the court to have regard to any opinion with respect to the matters to which the proceedings relate that is or has been given by a relevant Commissioner.

19 Jul 2000 : Column 1073

(8) In this section "relevant Commissioner" means the Interception of Communications Commissioner, the Intelligence Services Commissioner, the Investigatory Powers Commissioner for Northern Ireland or any Surveillance Commissioner or Assistant Surveillance Commissioner.").

The noble Lord said: My Lords, this amendment addresses a concern that has been put to us on a number of occasions by industry. The concern is that once keys are seized under this legislation and notwithstanding the strict safeguards set out in Clause 55, there remains a possibility that keys could be compromised once they have been seized. Industry is rightly concerned to ensure that that possibility is minimised and that proper sanctions exist in case it occurs. We agree that it would be wrong for the consequences of insecure safeguarding to fall on the owners or users of keys. We also agree, as I indicated on Report, that the duty imposed on public authorities to look after keys should be actionable. In other words, if keys are insecurely stored the responsible public authority can be sued.

Before I spell out what these amendments do in detail, I fear that I need to spell out how unlikely it will be that we shall ever arrive in a position in which keys are compromised in this way or fashion. First, noble Lords will by now be very familiar with the state of preference for plain text on the face of the Bill. I made that clear in the previous debate. Noble Lords will also be familiar with the significant extra hurdles that need to be cleared before the keys themselves can be demanded. Thirdly, noble Lords will see the tight controls we place on the keys once they are seized, as set out in Clause 55.

All those factors considered, it seems most unlikely that keys will ever be compromised. In the past I have drawn an analogy with the intercept material which is subject to similar strict controls at present and which has not, to my knowledge, ever been compromised in the 15 years of operation of the Interception of Communications Act 1985. None the less, I appreciate that it is a matter of perception. I appreciate that were keys to be compromised in this way, the Bill should be clear where liability should lie.

Two elements of the liability are envisaged in this amendment. The first--at new subsection (4)(a)--would be in respect of a person who failed to ensure that adequate arrangements were in place for the protection of keys. The second--at new subsection (4)(b)--would apply to those who did not comply with the arrangements properly and thereby compromised the key. We believe that both elements are required. It could be as a result of failings in either aspect that keys came to be compromised. I believe that it would be an unlikely but hypothetical situation.

New subsection (5) sets out the individuals who may sue for these purposes. They are limited to those who have made a disclosure in pursuance of a Section 49 notice, or those whose protected information or key has been disclosed by someone else in pursuance of such a notice.

We think that that gets the balance about right between proper legal accountability on the one hand and unlimited remote claims on the other. However,

19 Jul 2000 : Column 1074

noble Lords will note that someone whose information is protected by a key, even if that key is not "his" in the conventional sense of the word, is covered by the class of potential litigants. So a bank customer can sue on a failure to look after a bank key that he happens to use. That was a specific point raised on Report. I am happy to make the position clear now at Third Reading.

Finally, Amendment No. 42 allows for an order made under Clause 65 to allocate some or all of these proceedings to the tribunal to be established under Clause 65. Our initial view is that the tribunal should hear such cases where they are related to interception or where there is a secrecy notice attached.

I hope that I have explained in detail the importance of these amendments. They are designed to strengthen the obligation of the state to look after keys in the unlikely event that they are seized and to give industry redress in the still more unlikely event that things go wrong. I beg to move.

6.45 p.m.

Lord Cope of Berkeley: My Lords, I spoke on this point at an earlier stage. I, too, hope that no key is ever compromised. However, I believe that the amendment is necessary, first, in case a key is compromised, inadvertently or in any other way. It will give protection. Secondly, the fact that damages may be available will help to ensure that agencies which gain keys look after them properly. In some cases, they will have a huge financial penalty if they should fail in their duty in this respect.

On Question, amendment agreed to.

Clause 56 [Interpretation of Part III]:

[Amendment No. 35 not moved.]

Clause 57 [Interception of Communications Commissioner]:

Next Section Back to Table of Contents Lords Hansard Home Page