HC Deb 26 July 2000 vol 354 cc1203-9

Lords amendment: No. 52, in page 50, line 10, leave out ("requirement to disclose the key") and insert ("disclosure requirement in respect of the protected information")

Mr. Charles Clarke

I beg to move, That this House agrees with the Lords in the said amendment.

Mr. Deputy Speaker

With this it will be convenient to discuss Lords amendments Nos. 53 to 76, 79 to 85, 102, 105, 107, 109, 110 and 154.

Mr. Clarke

As hon. Members know, part III has continued to be a subject of great debate both in another place and more generally. We have proposed a number of significant changes, in response to representations from and discussions with industry and other interested parties. We have also had constructive discussions with the Opposition in the other place.

I do not want to go into all the details of this substantial issue. The thrust of what we seek to do is this: we want to reassure all concerned that, in cases in which appropriate authorisation has been established under the Bill for reasons given in it, we seek to obtain a copy of the plain text—that is, the actual message that is exchanged, rather than the key. The amendment is designed to provide in the Bill the reassurance that I have given orally, in Committee and here, that we do not seek keys for a general purpose, that we do not seek a back-door route for mandatory key escrow, and that what we want is the plain text.

I am aware that Members on both sides of the House—in Committee, here, in the other place—and those outside it—have been worried about that, and have wanted reassurance in the Bill that we seek plain text. That is the main point of the amendments. We believe that the requirement is proportionate to what is sought. The amendments propose to recast part III in terms of our preference for plain text rather than keys, and to leave it to the recipient of a notice to decide how to comply with a disclosure requirement.

9.30 pm

As I say, the specific amendments are complicated and detailed. I shall not go through the detail further now, although I will be happy to respond as appropriate to points that are made in the debate, but the reassurance that I offer to the House and to all who are watching our proceedings in the industry is that it is our desire lawfully to get access to communications as appropriately authorised. It is not our desire to behave in a way that could make the communication systems of corporations vulnerable, or to give a power to demand a key that could be used irresponsibly to damage the security of organisations.

Contrary to what may have been thought—not in the House, where people have understood the issue but more generally—the representations that we have received have not come only from that industry, the internet service providers and so on. They have been from investment bankers and the financial community, on which the economic health of the nation depends. They have been concerned that inadvertently, by clumsiness or some other means, the Government might undermine their confidentiality requirements, which are a precondition for the operation of their businesses.

We are keen to reassure. We have done so verbally, and we think that, through the amendments, we have done so in the Bill. For those reasons, I commend the string of amendments to the House.

Mr. Heald

Before turning to the issue of keys in general terms, may I deal with Lords amendments Nos. 58 and 59? One of the points that I and others made regularly in Committee was that there was a danger, which had been highlighted by some in industry, that criminals would serve completely bogus notices on financial institutions and other companies seeking keys, or intelligible information on communications that they had obtained—protected information—and that the companies would find it difficult to verify the genuineness of the documents.

Amendments Nos. 58 and 59 are important because they require that the office, rank or position of the person who granted permission for the giving of a notice under schedule 1 be on the face of the notice. That gives extra reassurance to those who have received notices that they are genuine. Such measures are welcome. I know that the codes of practice, when they are before the House, will deal with those issues to a considerable extent, but I am glad that that theme, which has run throughout our deliberations, has been recognised in that way.

I turn to the general proposition about keys and the obligation to provide plain text. The original drafting of the Bill carries some of the blame. It was drafted on the basis that the notice would be to provide a key—that the requirement was for the key—so I do not think that we can blame those outside this place for thinking, "Look. It is all about the Government or authorities obtaining keys."

Of course, the Minister has given assurances at various times during our proceedings that that is not the case, but the way in which the measure was originally drafted was rather odd—I hope that the hon. Gentleman agrees. I welcome the fact that that whole section of the Bill has been turned the right way round, so that the requirement is for the plain text and the key is provided only in special circumstances. Those changes are welcome.

We still have a certain concern that the provision of the key is on the say-so of the chief constable. As the Minister will know, in the other place we fought hard for that approval to be given by the Home Secretary. We feel that it should be the person who is giving the assurances—the Home Secretary—who makes those decisions, rather than the chief constable.

Giving up the key is seen as quite a high security risk by financial institutions, companies, banks and the like. After all, many of them have international agreements not to disclose the key in any circumstances. They have sophisticated computer equipment that tries to avoid the same key existing for long. One can understand their reticence. We therefore proposed in the other place—where we lost the vote by one—that the Home Secretary should make those decisions.

I accept that since that defeat, the Government have held further discussions with all the parties and come up with the solution that the commissioner will immediately be notified that the chief constable has given approval, and that the commissioner will be able to make special reports to the Prime Minister about such instances at any time rather than only annually. However, although we are pleased about the extra protections, we shall be watching how the provision operates in practice. We still have that slight reservation about whether there should not be approval at a higher level.

As for the offence itself, the Minister will recall that one of the points made in the Opposition's reasoned amendment on Third Reading was that the offence created in clause 49 was repugnant to justice. Creating an offence in which a person must prove his or her innocence is not in line with what is often called the golden thread of British justice. We were strongly opposed to the creation of such an offence. We said that the offence should contain an intent element, and that it was not satisfactory to establish defences whereby people had to prove their innocence.

We very much welcome the fact that in the other place, it has been possible to add a mental element to the offence—the word "knowingly"—and that the defence has been amended so that it is no longer necessary to prove one's innocence on a balance of probability. It will be enough to raise the issue, which the prosecution will have to disprove.

Therefore, looking at the issue in the round, we accept that the original bad drafting caused considerable concern to industry, and not—as the Minister said—only to internet service providers. We think that recasting and rewriting part III has moved the Bill very much in the right direction, and that it is much improved. Nevertheless, I think that it is also possible to lay the charge of, "new Labour, new clause". The first 22 pages of amendments have certainly transformed the Bill from a rather ugly beast into something that may eventually even attain beauty. [Interruption.]

Mr. Beith

I shall keep off the subject of beauty, in the light of the Minister's sotto voce comments about his own appearance. There is no doubt that their lordships have rewritten part III—it is a substantial, almost total rewrite—or that it was necessary to do so not least to allay the considerable fears that had arisen in industry. I think that sometimes, in some of the press reports, those fears were not accompanied by any recognition of the purpose of the provisions. In an age in which electronic communications will be the norm, it would be a very serious omission to have no means of intercepting and reading encrypted communications between dangerous criminals embarking on a very serious crime, or between people attempting to threaten the lives of the people of this country.

Such powers are of course very dangerous, and therefore have to be the subject of very strict regulation. Liberal Democrat Members have said at various points in the Bill's passage that we would prefer a judicial basis for that type of approval in the various spheres in which it will operate, rather than the basis provided in part III and elsewhere in the Bill. Nevertheless, the fact remains that there are circumstances in which such powers have to be used. It was wrong that the Government were sometimes characterised as engaged in a wholly unjustified snooping exercise, intent on destroying all electronic commerce in the process.

The evolution from our original consideration of the Electronic Communications Act 2000, in which these provisions were first encapsulated, to the closing stages of our consideration of the rewritten version of this Bill, has been long and remarkable. As the hon. Member for North-East Hertfordshire (Mr. Heald) said, the overall cast of the Bill's provisions has been reversed, so that the intention is much clearer. I welcome those changes. I also welcome the Government's willingness to accept the advice that they received about how those changes could be made and the way in which that process was conducted.

It would be foolish to imagine that even now, we have got it all right. Clearly, lawyers will find scope to explore the provision pretty intensively, and we may have to return to some aspects of it. Some people might make quite a bit of money out of doing so, but we must ensure that serious threats to the physical safety of the people of this country, whether from criminals, hostile powers or terrorists, can be countered by the judicious and regulated use of such powers. We must do so in a way that does not disrupt an industry that has great earning power for the country and potential for the future. I hope that that has been achieved. If it has not been achieved fully, we might have to return to some of the details another time.

Mr. Maclean

There is no doubt that, with this Bill as with others, there will be lawyers who will try to find loopholes. We must hope that there are sufficient men and women of principle left to plug those loopholes.

The Government's mistaken drafting perhaps made it inevitable that some in industry and financial institutions would overstate their case and panic at the thought of having to release their keys. The Government's mistake was probably inevitable because of the amount of legislation being pushed through in such a short time, and the burdens on parliamentary draftsmen. Part III was drafted the wrong way round. The Government had a fetish with and concentration on getting the keys—why? They wanted the keys to get the information. Sensibly, the provisions have been redrafted to emphasise getting the information, which is what the Government always wanted. That will satisfy many in the industry.

Concern was inevitable because all movement in the industry has been towards encryption and keys. All those concerned with developing the internet, internet banking and so on, are excited by secure systems into which no one can hack. Encryption and double encryption is the trend in America, then along came the British Government to say, "Ah, but we want you to hand over the keys." I grant that such a perception was unfair. The Minister did his best in Committee to explain that the Government were really after plain text, for which they needed such powers.

Now, late in the day, but properly in accordance with our parliamentary procedures, we have the right drafting. That will help the Minister to reassure industry about the Government's intentions. He can embark on a propaganda drive with our financial institutions and the computer-internet world, with all its whiz-kids, peeks and other things—whatever they are called—who run the industry. More and more they are the driving force behind our economy. They are not just anoraks; they are incredibly sensible and powerful, and a good driving force.

The Minister now needs to take to such people the message that we have struck the right balance and that their keys are safe. The Government are no longer giving the impression that they want the encrypted keys to everyone's e-mail and internet systems. Instead, the emphasis is on plain text. I congratulate the Minister on achieving that, with the help of the Lords, and producing a better Bill.

9.45 pm
Mr. Charles Clarke

I genuinely thank the right hon. Members for Berwick-upon-Tweed (Mr. Beith) and for Penrith and The Border (Mr. Maclean) and the hon. Member for North-East Hertfordshire (Mr. Heald) for emphasising in this brief debate the points about drafting. I accept that the drafting has been fundamentally and positively changed, for the reasons stated by the right hon. Member for Penrith and The Border, in order to make it clear that it is the information, rather than the key, that we are after. That is important in reassuring people.

I am grateful to all three right hon. and hon. Members—particularly the right hon. Member for Berwick-upon-Tweed—for emphasising the purposes of the Bill as well. We need the information in the areas described for very good and important public interest reasons. We are contesting very highly effective crime, which may now be organised worldwide. That is part of globalisation. We see the impact of such crime—trafficking in drugs and in people, paedophilia and so on—in so many areas of our lives, and we must maximise our defences against it. It is a requirement in defending the liberties of our citizens that we do so.

We know that, as technology develops, we will take a hit and find it difficult to be as effective in tackling such crime. We have a duty to do what we can to protect our citizens from such an organised international threat.

I sense that some of the debate—not today's, but generally—has missed that key purpose of the Bill, so I am genuinely grateful to the three right hon. and hon. Gentlemen for re-emphasising that. No one who has participated in the debate outside has cavilled at the need for law enforcement, or the need to address the issues with which the Bill deals. There have been arguments about how that should be done, but it is fair to say that the whole industry acknowledges its importance to the welfare both of society and of the industry itself.

If financial institutions are penetrated by money launderers of various descriptions, that will undermine those institutions. If internet companies are undermined by paedophiles using their organisation to get material to others who use it, that undermines the future prospects of the industry. That is the fundamental argument that should, to a greater extent than it has, inform the debate on the future relationship between the industry and the Government. We have a strong mutual interest in ensuring that the Bill works properly. The Government recognise that, and I am grateful for the acknowledgement that the redrafting of the first part of part III, with its emphasis on plain text and information rather than keys, provides the required assurance.

The hon. Member for North-East Hertfordshire is the one who raised the issue of plain text and keys. The changes in amendments Nos. 52, 54 to 57, 64, 66 to 68 and 76 are positive and all relate to the redrafting on which speakers have, rightly, focused. He was right also to focus on amendments Nos. 58 to 62, which provide further stipulations, in addition to those set out in clause 46(4), about the form that a disclosure notice must take. They stipulate, for example, that a notice must contain details of the person who gave permission for it to be served, and that the time set for complying with the notice must be reasonable in the circumstances.

The initial draft code of practice that we have published for part III sets out our first stab at drawing up a disclosure notice. The main purpose of the notice is to provide certainty about what everyone is being asked to do, and I shall be interested in the industry's response to our draft. It is possible that we shall be able to improve it, so that it better achieves that purpose, although the amendments have already moved us closer to that goal.

The hon. Gentleman also mentioned authorisation, which is covered in amendments Nos. 69 and 71. Amendment No. 69 raises the authorisation level for access to keys to chief officer or its equivalent, which represents a significant increase. Amendment No. 71 provides additional safeguards by requiring that any directions for the disclosure of keys be notified to either the intelligence services commissioner or the chief surveillance commissioner, as appropriate, with the possibility of onward referral remaining open. Taken together, the two amendments should provide all the assurance needed.

I am grateful for the positive remarks made in the debate. I take seriously the points made about propaganda by the right hon. Member for Penrith and The Border, who is a past master of propaganda, as evidenced by his promotion of Scotland and the drinks industry. After the Bill receives Royal Assent, we shall work with the industry—and the Opposition, if they are willing—to promote it both in this country and internationally. Given the comments made in the overseas media, we must explain clearly what the Bill is and is not, and why we do not believe it poses a threat to e-commerce in Britain; on the contrary, it will help to achieve the Government's aim of a strong and secure e-commerce economy, to which we are all committed.

Propaganda is needed, and I hope that the whole House will help to promote the interests of this country's businesses when the time comes. In the meantime, I have no hesitation in commending the Lords amendments to the House.

Lords amendment agreed to.

Lords amendments Nos. 53 to 76 agreed to.

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