OFFENCES

HC Deb 08 May 2000 vol 349 cc536-59

'.—(1) A person is guilty of an offence if—

1. (a) with intent to impede access to protected information or the putting of that information into an intelligible form, he fails to comply, in accordance with any section 46 notice, with a requirement of that notice to disclose a key to protected information; and
2. (b) he is a person who has possession of the key.

(2) A person is guilty of an offence if—

1. (a) he fails to comply, in accordance with any section 46 notice, with a requirement of that notice to disclose a key to protected information;
2. (b) he is a person who has had possession of the key, but that key was not in his possession after the giving of the notice and before the time by which he was required to disclose it; and
3. (c) with intent to impede access to protected information or the putting of that information into an intelligible form, that he did not, before that time, make a disclosure, to the person to whom he was required to disclose the key, of all such information in his possession as was required by that person to enable possession of the key to be obtained.

(3) In proceedings against any person for an offence under this section it shall be a defence (subject to subsection (4)) for that person to show—

1. (a) that it was not reasonably practicable for him to make a disclosure of the key before the time by which he was required to do so;
2. (b) where the key was not in his possession at that time, that it was not reasonably practicable for him, before that time, to make such a disclosure as is mentioned in subsection (2)(c); and
3. that as soon after that time as it was reasonably practicable for him to make a disclosure of the key or (if earlier) of sufficient information to enable possession of the key to be obtained, he made such a disclosure to the person to whom he was required to disclose the key.

(4) Except in a case where there is no authorisation for the purposes of section 47, in proceedings for an offence under this section a person shall have a defence under subsection (3) only if he also shows that it was not reasonably practicable for him to comply with the requirement in the manner allowed by that section.

(5) In proceedings against any person for an offence under this section it shall be a defence for that person to show that—

1. (a) at all material times he used due diligence to store the key which he had or had had in his possession; and
2. (b) that were the key was not in his possession after the giving of the notice and before the time by which he was required to disclose it, that he did before that time, make a disclosure to the person to whom he was required to disclose the key, of all such information to his possession as was required by that person to enable possession of the key to be obtained.

(6) Where a person is being proceeded against for an offence under this section, then at any stage of the proceedings, if evidence has been given of his having failed to comply with any requirement of a section 46 notice to disclose a key to protected information, the following evidence shall be admissible for the purpose of proving that he had an intention to impede access to protected information or the putting of that information into an intelligible form—

1. (a) evidence that he has or has had in his possession other information of value on grounds falling within section 46(3) or likely to be of value for purposes connected with the exercise or performance by any public authority of any statutory power or statutory duty; and
2. (b) provided that seven days notice in writing has been given to him of the intention to prove the conviction, evidence that he has within the [five] years preceding the date of the offence charged been convicted of any offence carrying a maximum sentence on conviction on indictment of five years imprisonment or more.

(7) A person guilty of an offence under this section shall be liable—

1. (a) on conviction on indictment, to imprisonment for a term not exceeding ten years or to a fine, or to both;
2. (b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.'.—[Mr. Heald.]

Brought up, and read the First time.

Mr. Heald

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this it will be convenient to discuss the following: New clause 7—Failure to comply with a notice to disclose a key to protected information— '(1) A person is guilty of an offence if—

1. (a) with intent to impede access to protected information or the putting of that information into an intelligible form, he fails to comply in accordance with a section 46 notice with a requirement of that notice to disclose a key to protected information;
2. (b) there are reasonable grounds for believing that possession of the key is necessary to obtain access to the protected information or the putting of that information into an intelligible form; and
3. (c) he is a person who has, or who after the giving of the notice and before the time by which he was required to disclose the key, had possession of the key.

(2) A person is guilty of an offence if—

1. (a) he fails to comply in accordance with a section 46 notice with a requirement of that notice to disclose a key to protected information;
2. (b) there are reasonable grounds for believing that possession of the key is necessary to obtain access to the protected information or the putting of that information into an intelligible form;
538
3. (c) he a person—
1. (i) who has had possession of the key; and
2. (ii) who has, or who after the giving of the notice and before the time by which he was required to disclose the key had, possession of information which would (either on its own or in combination with other information) enable possession of the key to be obtained; and
4. (d) with intent to impede access to protected information or the putting of that information into an intelligible form, he did not before the time by which he was required to disclose the key, make a disclosure to the person to whom he was required to disclose the key of all such information in his possession which would (either on its own or in combination with other information) enable possession of the key to be obtained.

(3) In proceedings against any person for an offence under this section it shall be a defence for that person to show—

1. (a) in the case of an offence under subsection (1), that it was not reasonably practicable for him to make a disclosure of the key before the time by which he was required to do so;
2. (b) in the case of an offence under subsection (2), that it was not reasonably practicable for him, before the time by which he was required to disclose the key, to make such a disclosure as is mentioned in subsection 2(d); and
3. (c) where in either case it has since that time become reasonably practicable for him to make a disclosure of the key or of information which would (either on its own or in combination with other information) enable possession of the key to be obtained, he has made such a disclosure to the person to whom he was required to disclose the key.

(4) Except in a case where there is no authorisation for the purposes of section 47, in proceedings for an offence under this section a person shall have a defence under subsection (3) only if he also shows that it was not reasonably practicable for him to comply with the requirement in the manner allowed by that section. (5) A person guilty of an offence under this section shall be liable—

1. (a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both;
2. (b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.'.

Government amendments Nos. 39 and 67.

Amendment No. 18, in page 51, line 10, leave out Clause 49.

Amendment No. 20, in clause 51, page 53, line 42, at end add— '(aa) that a key disclosed in pursuance of a section 46 notice is stored safely and kept safe at all times;'. Government amendments Nos. 89 and 90.

Mr. Heald

This group of new clauses and amendments is at the heart of the Opposition's anxieties about the Bill. New clause 1 is an attempt to deal with the controversy about clause 49 that has raged since the first consultations on it.

Clause 49 makes it an offence punishable by two years' imprisonment to fail to comply with a notice that requires the production of a key to coded information—an encryption key. The criticisms are made from two perspectives, which are different but none the less valid, in the Opposition's view.

The first criticism involves the punishment for failing to provide a decryption key. I pause to mention that the Minister has said that a key will be required only in cases in which the most suspicion arises and the Government are least satisfied with the bona fides of the person from whom the key is sought, and that plain text will be adequate in other cases. Requests for keys will be made of those who are suspected of money laundering, paedophilia or drug trafficking. They are the sort of people who would be prepared to accept the lesser offence and take the two-year sentence rather than give up their secrets and make available information that could lead, after further investigation, to their prosecution for the most serious offences, carrying sentences of imprisonment for life or a long determinate period. That point was made by my hon. Friend the Member for Mole Valley (Sir P. Beresford) on Second Reading and several times in Committee, but the Government are not prepared to tackle it.

The first criticism is that to ask for a key but not to be given one would be of no use to the Government, but the serious criminals whom they want to target would be all too prepared to contest the lesser offence in the hope that they might be acquitted. They will think two years much better than 10. Through the new clause, we have attempted to tackle the problem of the inadequate sentence. The second criticism, which is entirely different, is that the defendant will be required to prove his innocence and explain why he was unable to provide the key. The burden will be entirely on him to prove his innocence if it is shown that he failed to comply with the notice.

Apart from the criticism that that may breach the European convention on human rights, it is repugnant at law to require someone to prove his innocence. It goes against the golden thread that runs through English justice. Neither we nor those who are concerned about the matter have taken that lightly. Justice and the Foundation for Information Policy Research asked a leading barrister to consider the issue and produce advice on which we could deliberate in Committee. Tim Eicke has done that.

In Committee, I asked whether it would be possible for a Law Officer to address such issues so that we could have a detailed legal exposition of how the Government justify the offence. That did not happen; I chided the Minister, but he said he was certain that the offence was perfectly normal, and that it was not a matter of huge concern that an innocent person would be required to prove his innocence. However, it is worth considering what Tim Eicke and others have said. In his advice, he describes the offence as "repugnant".

We all know the careful way in which lawyers phrase things. In fact, the Minister criticised it in Committee, and told us that he hated lawyers. A barrister may say that something is doubtful or difficult, or that there are legal difficulties, but the use of the word "repugnant" shows that the problem is pretty serious. Tim Eicke describes the offence as repugnant because no guilty intention is required as a ground for a conviction. He says that in most offences, the prosecution has to prove not only that particular events occurred, but that someone had a guilty intention. For example, for theft, one has to be dishonest; for murder, one has at least to intend to cause grievous bodily harm. However, in this offence, if it is shown that someone did not comply with the notice served on him, the duty is on him to prove that he lost or forgot the key, or that there is some other innocent explanation.

5.45 pm

In his advice, Tim Eicke points out: A defendant who chooses not to give or call evidence may be convicted without any mens rea— any mental element— of the offence being proved against him. He refers to the views expressed in 1999 by the Lord Chief Justice in ex parte Kebeline, which was a case dealt with in the divisional court, and to the Canadian case of Whyte, which has a persuasive authority. He also quotes the words of Chief Justice Dickson. The Minister will remember these words; they are important: If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused. He points out a number of other infringements of, and difficulties with, the European convention on human rights.

The Opposition are not satisfied that an offence that a leading human rights barrister describes as repugnant should go on the statute book without the Minister having met the challenge of the ideas that have been presented to him and explained why it is right in this case that a man can be found guilty when he has no guilty intention. Why should someone have the burden of proving his innocence?

It is important to note that it is not only the main Opposition party that has made that point. The Liberal Democrats have also made it, and their new clause 7 tries to import into the Bill the concept that there should be a guilty mind, and an intention, before a person can be found guilty. Although they do not go as far as we do, like us they include the intention to impede access to justice or to prevent the information from being put into an intelligible form.

The Minister should explain how this provision conforms with the European convention on human rights. A man should be innocent until proven guilty. How does the Minister deal with that argument?

New clause 1 deals with the issues that I have described. It would increase the penalty for this offence to 10 years, which the Liberal Democrat new clause would not. It would also allow evidence of previous convictions or of other material found at the scene of a police investigation to be used to prove guilty knowledge. That is not unprecedented; it has been done before in other areas of law. If the police or other authorities go to a house and during their investigations they find, for example, a computer that has paedophiliac images of children, that evidence should be allowed to be used to point to the vast mass of encrypted material on the computer and the fact that when the accused was asked to produce the key to the information he refused to do so. The court could draw an inference of guilty knowledge.

With new clause 1, we are trying to target the offence more on serious criminals, while respecting human rights and the right of an individual to the type of fair trial that we have had in this country for hundreds of years. We hope that the Minister's response will be fuller on this issue here than it was in Committee.

Amendment No. 20 deals with what happens to a key once it has been disclosed. It would require a key disclosed in pursuance of a section 46 notice to be stored safely and kept safe at all times. That relates to a separate concern of the industry. Encryption was not invented to help the criminal. It was invented because commercial enterprises wanted to be able to keep commercial transactions secret. Banks and financial institutions—some of the most important commercial enterprises in the country—rely on encryption to do their business.

One of the fears that those organisations have expressed to me, along with others—including all Opposition parties—is that if keys are not to be kept safe, or if the arrangements are not entirely satisfactory, there will be a fracturing of trust in the whole process of encryption. That could have a dramatic effect on business confidence in a new technology and a new industry—something that members of all parties profess to support, but that the Government endanger by failing to deal with the position fully. Both EURIM—the European Informatics Market—and the Foundation for Information Policy Research have made that point, and I look forward to what the Minister has to say about it.

In Committee, we said that the notices that the Bill requires to be served on companies and individuals should be obviously recognisable and verifiable, so that con merchants and others could not use the procedures while pretending to be the authorities. Under amendment No. 39, a notice under clause 46 will have to include the grounds for that notice, the office, rank or position of the notice giver, whether a plain text is sufficient, the time by which the notice must be complied with, and the manner of compliance. Both we and the Liberal Democrats suggested such measures in Committee, and we therefore welcome the amendment; but it does not go as far as we would have liked.

We wanted a system enabling all notices served under the Bill to be instantly recognisable, and to contain security information that could be checked through the use of ultra-violet light or other security methods. We wanted the establishment of a clear verification point where the industry could go to find out whether a notice was valid. Although reassurances have been given, it would be helpful if the Minister repeated them, and told us what point the deliberations have reached.

Government amendment No. 67 is also important, because it provides that the key will be required only in special circumstances. The Minister agreed to that in Committee. As I have said, that means that those who are asked for the key are far more likely to be those who are under suspicion, because plain text will be more readily satisfactory from those who are not under suspicion. However, I should be grateful if the Minister would explain a little more fully what he means by special circumstances. Has he a definition in mind, or is it important to use that term in order to provide a certain amount of flexibility?

Government amendments Nos. 89 and 90 exclude directors from liability under part III. They, too, meet concern expressed by Opposition Members in Committee, and show that on that occasion, the Minister was listening—but if he is prepared to listen in respect of little things, is it not time that he listened in respect of new clause 1?

Mr. Simon Hughes

Progress has been made since the Committee stage. The tenor of my remarks will reflect the tenor of what was said by the hon. Member for North-East Hertfordshire (Mr. Heald): in Committee, he and his colleagues argued from much the same perspective as my colleagues, and I do not think it is any secret that in large measure they were advised by the same people—people with the same expertise and the same concerns.

The Liberal Democrats believe that new clause 1 is a move in the right direction, but, because it differs from our new clause 7 in certain particulars touched on by the hon. Member for North-East Hertfordshire, we naturally commend new clause 7 rather than new clause 1. I shall say more about that later. We consider Government amendments Nos. 39 and 67 to be improvements: I shall say more about those later as well. Amendment No. 18, tabled by Liberal Democrats and Conservatives, would delete the current offences provision—clause 49—because we feel that the clause gets the balance wrong. We support Conservative amendment No. 20, because it is geared to give additional protection. We hope that the Government's response will be positive. Government amendments Nos. 89 and 90 themselves constitute a positive response to concerns expressed in Committee, and we welcome them.

We consider all four Government amendments to be improvements, and feel that the additional single protection mechanism proposed by the Conservatives in amendment No. 20 should commend itself to the Government. However, we agree with the hon. Member for North-East Hertfordshire that the Government have still not dealt with the major concerns—concerns that are felt not just by buffs and hacks who live entirely in the world of information technology for reasons of work or interest, but by others who use e-commerce, e-mail and the rest.

Like other hon. Members, I have received representations not just from organisations but from individual constituents, who have expressed anxiety about potential criminal liability on the basis of their inability to disprove a negative. As the Minister knows, we have been over that ground recently. As I made clear on Second Reading and as my party has made clear throughout, we differ with the Conservatives on this part of the Bill, although not to a great extent. We agree with the Government that a Bill is needed to make this area of activity comply with the European convention on human rights. Because of the development of technology, certain activities take place that have not yet been brought under the umbrella of the convention, and it is important for us to have legislation for that purpose before 2 October this year, when the convention will become law in England and Wales, Scotland and Northern Ireland.

We think it desirable to have a Bill, even one with flaws. The paradox is that, if the hon. Member for North-East Hertfordshire and I are right, there may well be an immediate failure to comply with the convention. It is, I think, no secret—indeed, it is an obvious, self-evident truth to me—that before long someone will test the Act's compatibility with the convention. It may not be some big corporate enterprise; it may be an individual who, having been served with a notice, finds that he cannot reasonably comply and is therefore liable to be punished as a criminal for failing to prove that he does not have information, has lost his password, cannot remember the code or cannot assist in decryption. That may happen regardless of innocence or guilt in relation to the substantive material; indeed, no offence may have been committed.

The hon. Member for North-East Hertfordshire cited pornographic material that might be used for purposes of paedophilia, an example that I gather was given often in Committee. The concern is understandable, but nothing of that nature might be involved. The person in question might have been falsely accused of having possessed material and subsequently got rid of it; he would then be served with a notice and, under the law as drafted, would be unable to get himself out of that hole. That is an important criminal line to cross.

6 pm

Let me again make the point that I made in Committee and elsewhere; I made it to the Minister during our consideration of the Terrorism Bill, on which we had a similar debate. The Government are duty bound—I accept that they do it in the proper manner—to certify in the Bill that they are European convention-compliant. They have done it in this Bill as they have elsewhere. They take advice. Clearly, they must act on that advice because, if they do not, they will be in default and, if taken to court and so on, they may be in difficulty.

There is a constitutional failure in the system, however. I understand that, if the Government seek legal advice and that advice says, "Don't do it. You would be acting illegally," they will pray in aid the exemption from the freedom of information legislation, saying, "This is not a matter of fact or statistics; it is not even an evaluation of facts or statistics. It is advice to Ministers, so we don't want to disclose it," but I have never understood why the Government are so reluctant to disclose the advice, which, by definition, they must claim supports their case.

If the Government—as they must have done and as they say they have done—have gone to those who advise them, whether in government or outside, and have said, "This is ECHR compliant," there may be a difference of view. The advice that the hon. Member for North-East Hertfordshire and I have seen and the advice commissioned from elsewhere could at least be intelligently pitted against and put into a discussion with that other advice.

The problem is that, when we proceed in that way, with the Government being so secretive, the lay people, in a sense—because even those of us here who are qualified as lawyers are lay people—argue on the basis of advice given without expert guidance. That is exactly why the Special Standing Committee procedure is often useful: people can look at the implications and give their own legal advice.

Government—not necessarily only the present Government—do Parliament a disservice when they pray in aid advice that supports them while letting no one see it so that their argument cannot be tested by cross-examination and questioning.

Mr. Heald

Does the hon. Gentleman share my concern? The Attorney-General has said—I quoted the details in Committee—that the proper occasion for a justification of the issue of compatibility is a debate in the House. If Ministers are not prepared to go beyond the bald statement in the Bill and into the real detail, and to give a full legal explanation of why they say it is compatible with the ECHR, that makes nonsense of the Attorney-General's comment.

Mr. Hughes

I agree. Like the hon. Gentleman, I am conscious of the two concerns; it is not new ground for those who served on the Committee or, indeed, who were here for the Second Reading debate. One is for the individual civil liberty of the individual citizen against the state that is seeking to interfere with his or her activities. The other is that business could potentially be harmed. Business will think, when deciding where to carry out its activity, that the regime in Britain will be less helpful and more dangerous and threatening to it than a regime elsewhere, so it will say, "Thank you very much, but we will take our business elsewhere."

There are those two concerns—not always, as it were, coming together on the same side. The problem as I see it—I come to it, as I have said, as a lay person—is that some people, to try to avoid being caught, will be pushed into taking measures that do not help the normal activity of the business. If the United Kingdom is much more draconian in that area than many other countries, and I understand that it is, that cannot be helpful for our position.

Again in passing, may I say that that is exactly the sort of area where the logical thing to do would be to have provisions that are as similar as possible to those in other countries—at least those throughout the European Union—so that we are not commercially disadvantaged in relation to countries with codes of rights, Bills of Rights or constitutions, such as those in Scandinavia or elsewhere.

Again, we had a similar debate when we considered the Terrorism Bill. The Minister says that what is being referred to is not a reverse burden of proof but a statutory defence. I understand that argument. In the case of the Regulation of Investigatory Powers Bill, the statutory defence will not be rarely used, as it will be in the case of the Terrorism Bill, under which on the widest definition it is likely to be pretty exceptional for someone to pray in aid that defence. In this case, it could apply at any time to any Tom, Dick or Harry, or to his female equivalent—big player or small player. Showing that he has legitimately forgotten something is much more likely to be difficult for the individual citizen than for the corporate enterprise.

My advice is that the power will be ineffective and that the real criminal will find ways round it. The Government are building in a great power and getting the balance wrong between the state and the individual, but they will not catch the real villains they want to catch because those people will be clever enough to work out ways to escape. They are the people who will refuse to give the keys, and who may escape.

I understand that that is the reason why the hon. Member for North-East Hertfordshire seeks to make the penalty bigger. He wants to make less aggressive the provision of the state, but he none the less wants to ensure that people who are caught are penalised. I understand that, although I disagree with it, as he knows. We think that that is far too great a penalty for what may be—although the courts will have discretion in the matter—a pretty minimal offence.

The key difference between the hon. Gentleman and us, which is why we cannot support new clause 1—we will not support it if it is voted on—is the ability to pray in aid previous offences which may have nothing to do with a particular activity. I find that a worrying addition, which I do not understand. The hon. Gentleman would have been more likely to receive more widespread support if he had not included that in the new clause. I do not think that it adds to it at all.

Let me make one last general point. Those who know about these technical matters argue that, rather than having a heavy offence provision and draconian powers whereby the state and the prosecution authorities can effectively seek information from people who, if they cannot satisfy them, are liable to be found guilty, it would have been better to have facilitated the better technical use of the means of getting information—what I understand in the jargon is called forensic hacking, a concept which I understand and which might afford us a better approach. Those who are interested in and who know about these things argue that the current approach may be wrong. We can always concoct criminal procedures, structures and balances between the state and individual, but we might also have gone down that road.

I am conscious that the Data Protection Commissioner has expressed concerns about those things. Those have not changed, I understand, since they were expressed before the Bill went into Committee. I remind the Minister of that.

Government amendment No. 39 is a response to the amendment that was moved in Committee by my hon. Friend the Member for Sheffield, Hallam (Mr. Allan), which specifically sought to address the issue. We are grateful that the Government have responded to that and effectively given the exact response that we sought in Committee.

The same applies to Government amendment No. 67, applying to the additional test, which should be about the disclosure of data, not about the disclosure of keys. When the matter is looked at simply, it seems that it is far better to ask people to provide the data; only if the data are not or cannot be provided should we seek to get the key. Many people will find it much easier to provide just the hard copy, to put it crudely—to provide the print-off. The commercial world will be much more comfortable if it is asked to provide the data, rather than the key.

As I said, the Liberal Democrats support amendment No. 20. Although the amendment is simplistic in some ways, it is valid. Keys must be looked after properly, and, in theory, they will be. We have to ensure, however, that a delegated person—who may be third down in the chain of command—is not given responsibility for key security if he or she cannot do the job properly. The issue generally is important, but, commercially, it is potentially very important. We really have to ensure that, once keys are recovered by the authorities, they are properly looked after.

Government amendments Nos. 89 and 90 deal with company directors' liability—the key escrow by intimidation provisions—and address issues raised by my colleagues in Committee. We not only welcome but are grateful for those amendments.

Our new clause 7 seeks to address the keys issue. We still think—there is common ground among Opposition Members on this—that the prosecution should have to show intent to impede. We also still think that, using the usual test of beyond reasonable doubt, mens rea—guilty mind—should have to be demonstrated. It must be demonstrated that the defendant acted not neutrally but intentionally in dealing with an inquiry.

Our new clause would require: reasonable grounds for believing that possession of the key is necessary to obtain access to the protected information or— for— the putting of that information into an intelligible form.

We also believe that it is right—it seems to be self-evidently right—to insist that the defendant must have had the key after the notice was issued, as opposed to having had it at some time in the past. The Government are still arguing that both tests—that one has or that at some stage one had the key—should render one guilty. We think that failure to distinguish between the two cases would make the provision dangerously wide. Like Conservative Members, we argue that the provision needs to be narrowed.

Liberal Democrats believe that a defence should be available to defendants who provide the key or information after the notice's initial date requirement if it has been become reasonably practicable to provide it. We also argue that the offence should be split into two parts, to cover cases in which a person does not have the key, but could get it. Although such a provision may sound technical, people should know the charge they face and the procedure they should follow.

The danger of Conservative Members' new clause 1 is that, in the interests of advancing human rights in one sector—to protect people against, as I said on Second Reading, the overmighty powers of the state—we shall be removing defendants' usual human right not to reveal previous convictions. I argue that such a trade-off would be an excessive loss of human rights.

In Committee and elsewhere, the Minister has been very definite in saying that there would be no concessions on the issues addressed in this group of amendments. We are grateful, however, to note that Ministers have made a little movement around the edges of the central provision. Nevertheless, I should be troubled if Ministers were still unwilling to move on the main issue.

If the Government do not move on the main issue, if we cannot dislodge them in a Division on this group of new clauses and amendments and if Labour Back Benchers are not willing to acknowledge the civil liberties and balance of defence points, I am fairly confident that this is precisely the type of issue on which the paradox of this Parliament allows us to rely on the other place to make the case for civil liberties and for defendants and to reduce the state's power. If that happens and the other place amends part III, particularly clauses 46 to 49, I hope that the Government will think again and not seek to reinsert in the Bill that which we believe should not have been in it initially. Although we welcome the Government's movement on the issue, the key movement has not yet occurred. We hope that we can persuade them to make it.

Ms Margaret Moran (Luton, South)

I really do want to make a very brief point on the length of sentences proposed in new clause 1. I do not wholly agree with the new clause's general content, but simply ask for a review of the penalties proposed for the offence. I do so based on concerns expressed by various children's charities— primarily the National Society for the Prevention of Cruelty to Children, Barnardos and NCH Action for Children—with which I have recently discussed the issue.

6.15 pm

Quite apart from the Bill's technical, legal and civil rights aspects, we have to consider the way in which some of the Bill's provisions are being regarded by some of those who—far from being techies—are very much in the real world and at the receiving end of the issues. We have to acknowledge that there is a rising tide of concern, particularly among parents, about internet safety for children.

Only a week or so ago, in Milton Keynes, not far from my own constituency, there was a case in which a 13-year-old girl turned up to meet someone whom she met in an internet chat room and believed was a 15-year-old boy, only to discover that he was a 47-year-old man who had travelled from Newcastle specifically to meet her. I am sure that the case alarmed every parent who heard about it, and that those parents immediately began looking more closely at their children's internet activities.

Additionally, as we know, the internet contains websites showing pornographic, violent or racist material. Just last week, in my constituency, there was a case involving a website used by prisoners in the United States to display very disgusting material. They are also using internet chat sites that could be accessed by children. Most of the material is grossly offensive and highly unsuitable for children. We also know that e-mail is being abused by paedophiles seeking to make contact with children and for many other offensive activities.

The concern is that the advent of strong encryption technologies gives criminals the opportunity to hide their criminal activities or to conceal other evidence. If a paedophile has on his computer files e-mail messages, pictures or other material that discloses a serious sexual offence against a child—an offence for which he knows he could face a prison term of 10 years or more—he could encrypt the lot and, if investigated by police, simply refuse to hand over the key to decrypt the files, thus making unavailable evidence of a serious offence.

The other concern is that, in the Bill, the maximum penalty provided for defendants who refuse to hand over a key would be two years and a fine. With time-off for good behaviour, such a person might spend only a few weeks in prison. Subsequently, they might even be able to apply for and gain employment with children, in a school or residential centre. We should also remember that—because encryption technology has allowed the person very effectively to cover his tracks—there will be nothing on record showing that the person has a history of sexual offences.

Such a possibility raises issues about the Bill's relationship to protection of children legislation. Having worked on the Protection of Children Act 1999, I think that we have to ensure that such people are effectively registered, and that the protections offered by the 1999 Act apply also in internet cases, as if the evidence were in writing.

The Bill makes major improvements on the current situation, which would not allow for prosecution in such cases. Nevertheless, the situation will still not be satisfactory. We need seriously to review the penalties provided in this part of the Bill. I hope that the Minister will listen to the message from children's charities. The issue does raise complex civil liberties issues, and there are no ready-made answers, but, when children's charities tell us that there is great and growing unease, we have seriously to examine how the Bill will impact on the protection of children.

Mr. Simon Hughes

I completely understand the argument that the hon. Lady is presenting, but does she, and do those in the children's charity world to whom she has talked, accept that the paradox and the danger are that one might be able to catch the relatively minor offender but that we need to think more widely if we are to get the real villains—the big-time criminals and serial offenders whose activities we want to stop—because they are the most likely to escape the system?

Ms Moran

Indeed, the issue is more complex than one of sentences alone. As the hon. Gentleman said earlier, we may need to consider other measures to provide the widest possible safeguards.

It is outside the remit of the Bill, but there is a need for a review of how technology interacts with child protection and sexual offences legislation so that we can provide the widest possible protection not only for our children, but for those who may be vulnerable to people who seek to abuse the new technologies in ways that we may not have anticipated.

Mr. Ian Taylor (Esher and Walton)

I shall be brief, because many of the points that I wanted to make have already been made by my hon. Friends and by the hon. Member for Southwark, North and Bermondsey (Mr. Hughes).

I am not a lawyer. I have some technology interests, which are fully disclosed. I listened carefully to the hon. Member for Luton, South (Ms Moran), who told us of some valid concerns that have been expressed by children's charities. Industry is also concerned, for different reasons, so there are pressures on the Minister from many different directions. I am on record as saying that we should have a Bill to deal with these matters, and I think that he made valiant efforts in Committee to listen to the concerns expressed by Opposition Members. The Bill is slowly improving but, as the new clauses and amendments show, we are not absolutely certain about it.

Regardless of whether my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) wants to press the matter to a vote, it is important that the relevant considerations are taken into account in another place. If, for example, there is still a fear that the European convention on human rights will be breached, the Bill will run into real problems, even though the Government's objectives in introducing it are very important.

Industry has concerns about individuals and companies being pressured to disclose a key that may not be in their possession, because the burden of proof seems to be the wrong way round. The Minister must bear that in mind constantly and act appropriately before the Bill is enacted.

Among the expressions of concern is a letter from Vodafone dated 6 April. It says that the provisions are not practicable; the key could be lost or no longer used, etc. Industry may have no choice but to place their keys with secure third parties and thus it seems to be a way of reintroducing key escrow. I was the Minister who dealt with such matters and proposed key escrow, and I am sensitive to the fact that industry still has concerns about its coming in through the back door.

Industry is also concerned about security following disclosure of the key. The letter from Vodafone says: In our opinion, disclosure of the key in the first instance would make most industries feel their security has been compromised and this has implications for e-commerce, an environment where consumers require complete confidence in the security of service providers. That is the conundrum in the Bill: encryption is vital to encourage confidence in e-commerce, but the wrong sort of disclosure could undermine that confidence. If the person who had served the warrant mishandled the key or the information, there could be considerable problems.

I know that the Government understand the concerns and are trying to respond to them, but the problem, as information supplied to EURIM—the European informatics market group confirms, is that companies are beginning to move their offices offshore to escape the implications of the Bill. We are told that global processing and communications operations that used to be based in the UK (including petro-chemicals, pharmaceuticals etc as well as the City) appear not to be waiting around to find out whether there is a benign interpretation of the Bill by the courts, but to be moving offshore now. That must be a cause for concern.

One of the problems concerns the validity of those who are authorised to issue a warrant and how that validity is checked. All those matters were raised in Committee and I know that the Government are doing their very best to meet our concerns, but they have not yet gone far enough. Big issues are at stake, and I underline what my hon. Friend the Member for North-East Hertfordshire said.

Mr. David Maclean (Penrith and The Border)

There is a straightforward point to be made here: clause 49 as drafted is unjust and wrong. An innocent person unconnected with paedophilia, terrorism, drug dealing or crime of any kind, simply because information is required of him—he may have been sent an e-mail encrypted by mistake—and because, with the best will in the world, he cannot provide the encryption key, can be liable to a prison sentence of two years. He may have had no intention to commit a crime, but he can go to prison for two years. That is unjust and fundamentally wrong.

The clause is wrong for another reason. Serious criminals such as paedophiles, drug dealers and terrorists—those whom the security services, the National Criminal Intelligence Service, Customs and Excise and others should be, and are, pursuing ruthlessly—can simply refuse to hand over the key to encrypted material, because it is by far the best option for them to be found guilty of an offence under clause 49, which attracts a maximum sentence of two years, which becomes even less with good behaviour. They will know that handing over the key and allowing the authorities to see the paedophile material or information on terrorist activity or drug dealing would land them with a much heavier sentence and put them in prison for perhaps 10 years.

It is almost as iniquitous that serious criminals will get only a two-year sentence as it is that an innocent person who has forgotten the key should get the same sentence.

That is why I support new clause I. It may not be perfect—neither is a lot of the Government's legislation, as every parliamentary draftsman in the northern hemisphere is being roped in to draft it—but its intention is correct. It restores the fundamental safeguard that there must be mens rea. That is how I read the suggested provision embodied in the words with intent to impede access to information or the putting of that information into an intelligible form …

It is vital to include the intention of the person in the Bill, because it will remove the injustice that exists in clause 49. If the Government are willing to accept new clause 1 in principle—I hope that they are and that they will go away and redraft the provision before the Bill reaches the other place—they will make a double improvement to the Bill. They will remove the injustice of innocent people facing a two-year sentence because they cannot provide the key or the information when requested.

6.30 pm

My dementia is no more advanced than that of many other hon. Members, but I have several passwords by now. I must have about 20 hotmail accounts, not for any security reasons, but because I cannot remember the supposedly infallible password for the account I created last weekend. I always pick a password that I am bound to remember, but I always forget it. When I was on the parliamentary system, I was always having to call the Communications Directorate—I see the Parliamentary Secretary nodding—to admit that I could not remember my password and could not get into the system. The directorate tells me that about 90 per cent. of the calls to its hotline are from Members of Parliament or their secretaries and staff who cannot remember their password. That may be a lighthearted point, but what would happen if we had encrypted material?

What will happen to all those innocent business men and women who have encrypted material with an encryption key involving letters and figures, but who cannot remember it? They might have lost the bit of paper the key is written on, or mixed it up with a pin number from the bank, or any of the other bits and pieces of information about which we are told, "Keep it safely, memorise it, don't forget it." We try to have a system, but I often have to call my wife, because she remembers my pin number. We have to keep all sorts of information securely and, inevitably, as human beings, we fail. We forget or lose things.

When we forget or lose information, we should suffer the penalty of inconvenience, such as the hassle of calling the bank to request a new card or dealing with the computer companies. We should suffer the embarrassment of admitting to the police that we cannot find a document, and have to turn our houses upside down to try to find it. However, someone should not go to prison for two years because they have been forgetful. If the Government accept new clause 1, on the other hand, the paedophiles, the drug dealers and the terrorists should go to prison for 10 years if they deliberately try to keep their encrypted information from the security services. That would be the effect of new clause 1, and I urge the Government to accept it.

Mr. Richard Shepherd (Aldridge-Brownhills)

My right hon. Friend the Member for Penrith and The Border (Mr. Maclean) has put the argument most pithily. The concerns and fears aroused by clause 49 are that an innocent man may be found guilty. One reluctantly acknowledges that the questions of mens rea and the burden of proof are no longer defended in the House by the majority parties. I have great difficulties with the view of this country adopted by the Home Office and those who drafted the clause.

I accept the comments of the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) that our liberties are now more consistently defended in the other place. In saying that, I request the other place to examine the Bill rigorously. It has features that are unacceptable to our sense of freedom, liberty and the due processes that we have held to be important for many years.

I give an especial cheer for amendment No. 18, which contains the simple words "leave out Clause 49". That concentrates the mind better than any other amendment. Clause 49 is dreadful as drafted and would not be much improved by any of the amendments. The Home Office should reflect on that before the Bill reaches the House of Lords.

Mr. Charles Clarke

Before I respond to the detailed points made in debate, I offer the right hon. Member for Penrith and The Border (Mr. Maclean) a little suggestion to help him with his passwords. If he needs eight-letter passwords, he could rotate three—remember, Tory-Gvmt and dementia. They would remind him of the history of much of what we are considering.

With your agreement, Mr. Deputy Speaker, I shall first explain the reasons for the Government amendments in this group. The effect of Government amendment No. 39 is to make further stipulations about the form that a decryption notice is to take. In Committee, hon. Members tabled a number of amendments relating to the form of a decryption notice and I undertook to look at whether the requirements set down in clause 47(4) could look more like those for demands for communications data in clause 22(2).

Government amendment No. 39 is the result and I think that it will be welcomed. I am grateful to the hon. Member for North-East Hertfordshire (Mr. Heald) for doing so. I know that industry has made representations on it. As I said in Committee, there is clearly a need for consistency regarding notices—for the sake of the authorities authorising and serving the notices and for the sake of those receiving them, whether individuals or businesses.

Industry was worried about the possibility of receiving "spoof' notices. Companies will also want to know what it is that they are being asked to provide and by what time. Government amendment No. 39 addresses those points. There clearly needs to be an audit trail for queries. I hope that business will be reassured by that.

There should be an agreed format to notices. How this looks in practice is properly the subject of consultation with industry and others, because we want to get it right to achieve clarity and best practice. That work will be taken forward in the public consultation on the code of practice for part III.

Government amendment No. 67 inserts an extra test in clause 47 to specify that a requirement to disclose a key may be imposed only when it is believed that special circumstances make that necessary. In Committee, I undertook to consider whether there was room for narrowing down the circumstances when a key might be required to be disclosed rather than the authorities simply accepting the plain text of protected material.

I know that many, especially in industry, have no difficulty with the principle of handing over intelligible data when required to do under some lawful authority. However, I recognise that there are concerns about handing over keys, despite the tests and safeguards already in the Bill. The amendment is designed to respond to that concern.

I have previously said that the Government expect that the disclosure of plain text, rather than a key, is likely to be sufficient in most cases in responding to the service of a decryption notice. That is especially true where legitimate businesses are concerned. However, we have listened to industry's concerns and have tabled this limiting amendment, which introduces an extra test to clause 47. We already have a proportionality test, so the logical addition is a necessary one.

The amendment ensures that imposing a requirement to disclose a key may be made only where there are special circumstances to the case making that necessary. We have given that careful thought and, in the case of decryption requests made to legitimate businesses, a requirement to disclose a key where the plain text is available would certainly be most unusual. The difficulty for the law enforcement agencies surrounds the use of the power against suspects. In those cases where trust may be an issue—for example, guaranteeing that any plain text disclosed is the right plain text—requests for keys may perhaps be more frequent. The future is uncertain and we cannot know how often that might be, but the amendment limits the power to demand a key to special cases.

As we have said, the Government are, in many ways, trying to deal with a future danger here. The consensus view is that the rising criminal use of encryption poses a significant threat, for many of the reasons already mentioned in the debate. However, neither the law enforcement agencies, nor industry itself, can predict just how the technology will spread—and nor can the Government. We are striving to maintain a balance with the legislation now. This amendment is a reflection of that balancing exercise. In response to suggestions made in Committee by hon. Members of all parties, I have volunteered these changes because we are genuinely seeking to strike the right balance between providing effective powers and allaying the reservations about the Bill felt in industry and among groups concerned with civil liberties.

Our intention is to set out in the code of practice what circumstances would be considered special—a point raised specifically by the hon. Member for North-East Hertfordshire (Mr. Heald). A draft of the code will be published for public consultation, but the relevant circumstances may be determined along the lines that we have previously set out—for example, where issues involving trust or time limits mean that keys might be required in a special case. We think that those issues of trust and timeliness are central to the implementation of the "special" need.

I hope and believe that industry will welcome the amendment, and I am glad that it has been generally supported in the debates so far.

Mr. Simon Hughes

When will the draft code of practice be published? Did the Minister specifically reject the "reasonable belief' test for the exceptional occasion when the key itself—rather than the other copy—would be sought? When he was considering the issues raised by the hon. Member for North-East Hertfordshire (Mr. Heald) and by us, did he apply his mind to when the power adopted by the Government might be used? Is that in the code of practice, or will it be set out somewhere else?

Mr. Clarke

We intend that the code of practice will cover the power that the hon. Gentleman mentions, and we have given the commitment that the draft code will be published while the Bill is going through the House.

In Committee, I said that I would explore the use of the word "exceptional" rather than "special". We have taken advice on the matter, and have decided that the word "special" should be used in the Bill, as we consider that it gives more legal flexibility than would the word "exceptional". However, we consider that the definitions of what will be covered by the word "special" will meet any concerns that the issue was not being dealt with effectively.

Government amendments Nos. 89 and 90 would exempt part III from the effect of corporate liability. In Committee, I undertook to consider whether part III could be exempted from the provision concerning directors' liability for corporate default. I know that industry has voiced concerns about the matter, and consequently we have agreed to make the changes that amendments Nos. 89 and 90 put into effect. I believe that those changes will be welcomed.

I turn now to the matters raised in the debate by Conservative and Liberal Democrat Members. There is an inconsistency in the Conservative argument. The right hon. Member for Penrith and The Border (Mr. Maclean) made an eloquent speech, in which he spoke about the changes being made to the burden of proof and the length of the sentence. However, the Conservatives' inconsistency was evident when they accused the Government of being both too tough and not tough enough.

Mr. Heald

Does the Minister agree that, when an offence is repugnant to justice, any sentence would be wrong? However, if an offence is fair and a trial is fair, does he agree that its seriousness should be reflected in the sentence, especially when it relates to money launderers, drug traffickers and paedophiles?

Mr. Clarke

I do not accept that the offence is "repugnant to justice", to quote the hon. Gentleman, as I shall explain later.

I resisted these amendments in Committee, where we discussed this issue at some length. I remain unconvinced that changes are necessary. The central accusation—the core point being used to justify the amendments—is that the construction of the offence of failing to comply with a decryption notice in clause 49 means that innocent people will suffer. We do not agree. The issue has generated more heat than light among critics of the Bill, but I accept that the issue is important, so I will state the Government's position clearly.

6.45 pm

The first point to make and to emphasise is that there must be reasonable grounds for believing that a person served with a decryption notice has a key before use of the power can be authorised in the first place. That is an important barrier and burden, and I assure the House that the Government take it seriously.

Importantly—it is worth stressing this point again—part III does not allow the authorities to obtain material that they cannot obtain now. New types of material are not being drawn in by the Bill: it is a question of ensuring that authorities can obtain the material that they are already entitled to obtain.

The new decryption power works only where material is lawfully obtained. In other words, material must be obtained lawfully before the decryption power can come into effect. Only if that material is encrypted, and someone who is in a position to decrypt it refuses to do so, does the question of a prosecution arise.

Two hurdles must be negotiated before a prosecution is justified—there must be reasonable grounds, and the material has to have been lawfully obtained. I also stress that, where prosecutions occur, it is for the authorities to prove, beyond reasonable doubt, that the accused has, or has had, a key. That is a significant burden of proof, and it is laid on the prosecution, not the defence. It is therefore the third serious burden of proof that the prosecution in such cases must meet.

The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) chided me for using of the phrase "statutory defences". He was right to say that a similar question was debated in connection with the Terrorism Bill—in Committee, on Second Reading and on Report. There are statutory defences for people who have destroyed, lost or forgotten keys. Those defences need to be proved only on the lower level of proof—that is, the balance of probabilities.

Many criminal offences on the statute book place some burden on the accused. We have heard much talk about reversed burdens of proof, but the real issue is whether an accused can show, on a balance of probabilities, that he or she no longer has access to the key. How can the accused do that? The answer is straightforward, and applies in any court of law or legal circumstance. The accused must explain what has happened and the court will decide whether, on balance, he or she is telling the truth.

I believe that such circumstances will arise very rarely. I accept that that assertion is open to challenge, so I shall set out the reasons for my belief. I shall begin with looking at the position of industry in this matter. Were a business ever to find itself in a position of having to show, on the balance of probabilities, that it did not have a key at the relevant time, I fully expect that it could produce any number of technical records to explain the circumstances under which it normally used, stored and disposed of keys.

That is what businesses do. The right hon. Member for Penrith and The Border described the system to deal with lost keys that obtains in the House, and it is the norm for businesses and organisations such as public authorities to have such a system. Responsible and secure businesses are likely to have back-up mechanisms. They will anticipate the loss of a key, and will have an audit trail that shows when keys are used for what purposes, and when they are destroyed.

We know that keys are valuable to business. Businesses have impressed that upon us, but keys are also valuable to anyone who uses systems such as those under consideration. It is therefore reasonable to expect that businesses will be in a good position if—for legitimate businesses not suspected of involvement in criminality it is a big if—they find themselves facing a prosecution. Because the requirements are straightforward and set out clearly in the Bill, the number of times that any problem will arise for businesses in this regard will be minimal; indeed, I consider that it may never happen at all.

For individuals, forgetting a password is a reasonable thing to do. People in my private office at the Home Office, and others with whom I have worked, accept that it is not unknown for me to forget a password occasionally. The right hon. Member for Penrith and The Border admitted that he, too, was often guilty of forgetting his passwords.

It is rare for no contingency arrangements to be in place for such an eventuality. The right hon. Member for Penrith and The Border described the arrangements—involving direct contact with parliamentary officers, his reliance on his wife and so on—that he has in place. Depending on the circumstances of the case, people might relatively easily state that they have forgotten their password or their key, and then volunteer how it was generated, when they last used it and what they normally do when they forget their key. They could also say whether their service provider, for example, provided a back-up system, or whether every time they lost their key all data was destroyed or lost. There are no impossible burdens here—the processes are very clear.

I stress that clause 49(2) excuses someone from liability if he or she no longer has possession of the key and has done what he or she can to enable the key to be recovered by the person requiring it. That does not mean that the defence will fail if the key cannot be recovered—that would be an impossible burden. It simply means that the accused must assist by giving as much information as he or she has available. If they do, they have nothing to fear from prosecution. I emphasise that point, because I believe that it has not been made sufficiently clearly to date.

Mr. Simon Hughes

The argument is perfectly reasonable, but the most vulnerable people will be individuals who are not part of a system with a back-up procedure. They are their only check—they invent the password, and they can forget it. Given that the test is only 50/50 in that it is a case of whether the person is believed or not, would it not be better at least to concede that someone must be found, not just on a balance of probabilities, but beyond any reasonable doubt, to be hiding the fact that they know the password, data or encryption mechanism?

Mr. Clarke

I have tried as best I can to deal with the points that have been made fully. The balance suggested by the hon. Gentleman is not right; that which we are suggesting is right, which is why the Bill is worded as it is.

On sentencing, I take the point made by my hon. Friend the Member for Luton, South (Ms Moran). I pay tribute here in the Chamber, as I did in Committee, to the work done on this issue by the children's charities, which addresses serious and important points. As my hon. Friend said, complex issues of civil liberties are concerned, and there is no doubt that the overriding concern must be the seriousness of the offence. Increasing the penalty to 10 years would put the offence on a par with, for example, cruelty to children. I am not sure whether that is right.

The Bill has been accused of amounting to key escrow by intimidation, a point to which the hon. Member for Esher and Walton (Mr. Taylor) referred. We have been keen not to go down that road. There is a difficult balance to be established between the two questions, and we have decided that the balance proposed in the Bill is the right one. However, I can tell my Friend the Member for Luton, South that we will look carefully at how the Bill evolves and whether the situation that she describes becomes a reality. If her fears are proved right, we will look again at the appropriate level of sentencing in this area.

The Government do not take lightly the questions that have been raised in the debate—we take them very seriously. It is a hard balance to decide, but we think that the balance in the Bill is right. I commend the Government amendments to right hon. and hon. Members and hope that they will reject the Opposition amendments.

Mr. Heald

We are simply not satisfied, and we have not been throughout. Barristers have described the offence as repugnant; they have referred to cases in which judges have considered similar provisions and described them in the most damning terms. It is wrong that we should create offences that offend against the golden threat of justice, as it has been described, by saying, "Oh well, the sentence is only two years." It does not matter what the sentence is if the offence is unjust. If the offence is just, the serious crime of failing to give information to the prosecution authorities that might reveal money laundering, drug trafficking or paedophilia should be marked.

We want a just offence to be created, which does not require an innocent man to prove his innocence but puts the burden of proof fair and square on the prosecution. If he is found guilty, the event should be marked with due seriousness. We intend to divide the House on new clause 1, which we believe meets the justice of the case.

Question put, That the clause be read a Second time:—

The House divided: Ayes 136, Noes 317.

Division No. 180]	[6.54 pm
AYES
Ainsworth, Peter (E Surrey)	Brazier, Julian
Amess, David	Brooke, Rt Hon Peter
Ancram, Rt Hon Michael	Browning, Mrs Angela
Arbuthnot, Rt Hon James	Bruce, Ian (S Dorset)
Atkinson, David (Bour'mth E)	Burns, Simon
Atkinson, Peter (Hexham)	Butterfill, John
Baldry, Tony	Cash, William
Bell, Martin (Tatton)	Chapman, Sir Sydney (Chipping Barnet)
Bercow, John
Beresford, Sir Paul
Blunt, Crispin	Clappison, James
Boswell, Tim	Clark, Dr Michael (Rayleigh)
Bottomley, Peter (Worthing W)	Clarke, Rt Hon Kenneth (Rushcliffe)
Bottomley, Rt Hon Mrs Virginia
Brady, Graham	Collins, Tim

Cormack, Sir Patrick	Mawhinney, Rt Hon Sir Brian
Cran, James	May, Mrs Theresa
Davies, Quentin (Grantham)	Moss, Malcolm
Davis, Rt Hon David (Haltemprice)	Nicholls, Patrick
Day, Stephen	Norman, Archie
Dorrell, Rt Hon Stephen	O'Brien, Stephen (Eddisbury)
Duncan Smith, Iain	Ottaway, Richard
Emery, Rt Hon Sir Peter	Page, Richard
Evans, Nigel	Paice, James
Faber, David	Paterson, Owen
Fabricant, Michael	Pickles, Eric
Fallon, Michael	Portillo, Rt Hon Michael
Flight, Howard	Prior, David
Forth, Rt Hon Eric	Redwood, Rt Hon John
Fox, Dr Liam	Robathan, Andrew
Fraser, Christopher	Robertson, Laurence
Garnier, Edward	Roe, Mrs Marion (Broxbourne)
Gibb, Nick	Rowe, Andrew (Faversham)
Gill, Christopher	Ruffley, David
Gray, James	St Aubyn, Nick
Green, Damian	Sayeed, Jonathan
Greenway, John	Shephard, Rt Hon Mrs Gillian
Gummer, Rt Hon John	Shepherd, Richard
Hague, Rt Hon William	Simpson, Keith (Mid-Norfolk)
Hamilton, Rt Hon Sir Archie	Smyth, Rev Martin (Belfast S)
Hammond, Philip	Soames, Nicholas
Hawkins, Nick	Spicer, Sir Michael
Heald, Oliver	Spring, Richard
Heathcoat-Amory, Rt Hon David	Stanley, Rt Hon Sir John
Hogg, Rt Hon Douglas	Steen, Anthony
Howarth, Gerald (Aldershot)	Streeter, Gary
Hunter, Andrew	Swayne, Desmond
Jack, Rt Hon Michael	Syms, Robert
Jackson, Robert (Wantage)	Tapsell, Sir Peter
Johnson Smith, Rt Hon Sir Geoffrey	Taylor, Ian (Esher & Walton)
	Taylor, Rt Hon John D (Strangford)
	Taylor, John M (Solihull)
Key, Robert	Taylor, Sir Teddy
Kirkbride, Miss Julie	Townend, John
Laing, Mrs Eleanor	Trend, Michael
Lait, Mrs Jacqui	Tyrie, Andrew
Lansley, Andrew	Waterson, Nigel
Letwin, Oliver	Wells, Bowen
Lewis, Dr Julian (New Forest E)	Whitney, Sir Raymond
Lidington, David	Whittingdale, John
Lilley, Rt Hon Peter	Widdecombe, Rt Hon Miss Ann
Lloyd, Rt Hon Sir Peter (Fareham)	Wilkinson, John
Luff, Peter	Willetts, David
Lyell, Rt Hon Sir Nicholas	Wilshire, David
MacGregor, Rt Hon John	Winterton, Mrs Ann (Congleton)
McIntosh, Miss Anne	Winterton, Nicholas (Macclesfield)
MacKay, Rt Hon Andrew	Yeo, Tim
Maclean, Rt Hon David	Young, Rt Hon Sir George
McLoughlin, Patrick
Madel, Sir David	Tellers for the Ayes:
Malins, Humfrey	Mr. Geoffrey Clifton-Brown
Maples, John	and
Maude, Rt Hon Francis	Mr. John Randall.

NOES
Ainger, Nick	Bell, Stuart (Middlesbrough)
Ainsworth, Robert (Cov'try NE)	Benn, Hilary (Leeds C)
Allen, Graham	Benn, Rt Hon Tony (Chesterfield)
Anderson, Donald (Swansea E)	Bennett, Andrew F
Anderson, Janet (Rossendale)	Benton, Joe
Armstrong, Rt Hon Ms Hilary	Bermingham, Gerald
Ashdown, Rt Hon Paddy	Berry, Roger
Ashton, Joe	Best, Harold
Atherton, Ms Candy	Blears, Ms Hazel
Atkins, Charlotte	Blizzard, Bob
Austin, John	Blunkett, Rt Hon David
Barnes, Harry	Bradley, Keith (Withington)
Battle, John	Bradley, Peter (The Wrekin)
Bayley, Hugh	Bradshaw, Ben
Beard, Nigel	Brand, Dr Peter
Beckett, Rt Hon Mrs Margaret	Breed, Colin

Brown, Rt Hon Nick (Newcastle E)	Foulkes, George
Browne, Desmond	Fyfe, Maria
Bruce, Malcolm (Gordon)	Gapes, Mike
Buck, Ms Karen	Gardiner, Barry
Burden, Richard	George, Andrew (St Ives)
Burgon, Colin	George, Bruce (Walsall S)
Burstow, Paul	Gibson, Dr Ian
Butler, Mrs Christine	Gilroy, Mrs Linda
Cable, Dr Vincent	Godman, Dr Norman A
Caborn, Rt Hon Richard	Godsiff, Roger
Campbell, Mrs Anne (C'bridge)	Goggins, Paul
Campbell, Rt Hon Menzies (NE Fife)	Golding, Mrs Llin
	Gordon, Mrs Eileen
Campbell, Ronnie (Blyth V)	Gorrie, Donald
Cawsey, Ian	Griffiths, Jane (Reading E)
Chapman, Ben (Wirral S)	Griffiths, Nigel (Edinburgh S)
Chaytor, David	Griffiths, Win (Bridgend)
Clapham, Michael	Grocott, Bruce
Clark, Rt Hon Dr David (S Shields)	Hall, Mike (Weaver Vale)
Clark, Paul (Gillingham)	Hall, Patrick (Bedford)
Clarke, Charles (Norwich S)	Hamilton, Fabian (Leeds NE)
Clarke, Eric (Midlothian)	Hancock, Mike
Clarke, Rt Hon Tom (Coatbridge)	Hanson, David
Clelland, David	Heal, Mrs Sylvia
Clwyd, Ann	Healey, John
Coaker, Vernon	Heath, David (Somerton & Frome)
Coffey, Ms Ann	Henderson, Doug (Newcastle N)
Cohen, Harry	Henderson, Ivan (Harwich)
Coleman, Iain	Heppell, John
Connarty, Michael	Hesford, Stephen
Cook, Frank (Stockton N)	Hill, Keith
Corbett, Robin	Hinchliffe, David
Corston, Jean	Hood, Jimmy
Cotter, Brian	Hope, Phil
Crausby, David	Hopkins, Kelvin
Cryer, Mrs Ann (Keighley)	Howarth, Alan (Newport E)
Cryer, John (Hornchurch)	Howells, Dr Kim
Cummings, John	Hoyle, Lindsay
Cunningham, Rt Hon Dr Jack (Copeland)	Hughes, Ms Beverley (Stretford)
	Hughes, Kevin (Doncaster N)
Cunningham, Jim (Cov'try S)	Hughes, Simon (Southwark N)
Cunningham, Ms Roseanna (Perth)	Humble, Mrs Joan
	Hurst, Alan
Curtis-Thomas, Mrs Claire	Hutton, John
Dalyell, Tam	Iddon, Dr Brian
Davey, Edward (Kingston)	Illsley, Eric
Davey, Valerie (Bristol W)	Jackson, Ms Glenda (Hampstead)
Davidson, Ian	Jackson, Helen (Hillsborough)
Davies, Rt Hon Denzil (Llanelli)	Jamieson, David
Davies, Geraint (Croydon C)	Jenkins, Brian
Davis, Rt Hon Terry (B'ham Hodge H)	Johnson, Alan (Hull W & Hessle)
	Jones, Mrs Fiona (Newark)
Dawson, Hilton	Jones, Helen (Warrington N)
Denham, John	Jones, Ms Jenny (Wolverh'ton SW)
Dismore, Andrew
Dobbin, Jim	Jones, Dr Lynne (Selly Oak)
Donohoe, Brian H	Kaufman, Rt Hon Gerald
Doran, Frank	Keeble, Ms Sally
Dowd, Jim	Keen, Ann (Brentford & Isleworth)
Drew, David	Kelly, Ms Ruth
Dunwoody, Mrs Gwyneth	Kemp, Fraser
Eagle, Angela (Wallasey)	Kennedy, Jane (Wavertree)
Eagle, Maria (L'pool Garston)	Khabra, Piara S
Efford, Clive	Kidney, David
Ellman, Mrs Louise	Kilfoyle, Peter
Ennis, Jeff	King, Andy (Rugby & Kenilworth)
Etherington, Bill	Kirkwood, Archy
Fearn, Ronnie	Kumar, Dr Ashok
Field, Rt Hon Frank	Ladyman, Dr Stephen
Fisher, Mark	Lawrence, Mrs Jackie
Fitzsimons, Lorna	Laxton, Bob
Flynn, Paul	Lepper, David
Foster, Rt Hon Derek	Leslie, Christopher
Foster, Don (Bath)	Levitt, Tom
Foster, Michael Jabez (Hastings)	Lewis, Ivan (Bury S)
Foster, Michael J (Worcester)	Lewis, Terry (Worsley)

Liddell, Rt Hon Mrs Helen	Roche, Mrs Barbara
Linton, Martin	Rooker, Rt Hon Jeff
Lloyd, Tony (Manchester C)	Rooney, Terry
Lock, David	Ross, Ernie (Dundee W)
McAvoy, Thomas	Rowlands, Ted
McCafferty, Ms Chris	Roy, Frank
McDonagh, Siobhain	Ruddock, Joan
McDonnell, John	Russell, Bob (Colchester)
McGuire, Mrs Anne	Ryan, Ms Joan
McIsaac, Shona	Salter, Martin
McNamara, Kevin	Sanders, Adrian
McNulty, Tony	Sarwar, Mohammad
MacShane, Denis	Sawford, Phil
Mactaggart, Fiona	Sedgemore, Brian
McWalter, Tony	Sheerman, Barry
McWilliam, John	Sheldon, Rt Hon Robert
Mahon, Mrs Alice	Singh, Marsha
Mallaber, Judy	Skinner, Dennis
Marsden, Gordon (Blackpool S)	Smith, Rt Hon Andrew (Oxford E)
Marsden, Paul (Shrewsbury)	Smith, Angela (Basildon)
Marshall, David (Shettleston)	Smith, Jacqui (Redditch)
Marshall, Jim (Leicester S)	Smith, Llew (Blaenau Gwent)
Marshall-Andrews, Robert	Smith, Sir Robert (W Ab'd'ns)
Martlew, Eric	Squire, Ms Rachel
Maxton, John	Starkey, Dr Phyllis
Meacher, Rt Hon Michael	Steinberg, Gerry
Meale, Alan	Stevenson, George
Michael, Rt Hon Alun	Stewart, David (Inverness E)
Michie, Bill (Shef'ld Heeley)	Stewart, Ian (Eccles)
Miller, Andrew	Stinchcombe, Paul
Mitchell, Austin	Stoate, Dr Howard
Moffatt, Laura	Strang, Rt Hon Dr Gavin
Moonie, Dr Lewis	Straw, Rt Hon Jack
Moran, Ms Margaret	Stuart, Ms Gisela
Morgan, Ms Julie (Cardiff N)	Stunell, Andrew
Morley, Elliot	Taylor, Rt Hon Mrs Ann (Dewsbury)
Morris, Rt Hon Sir John (Aberavon)
	Taylor, Ms Dari (Stockton S)
Mountford, Kali	Temple-Morris, Peter
Mowlam, Rt Hon Marjorie	Thomas, Gareth (Clwyd W)
Mudie, George	Thomas, Gareth R (Harrow W)
Mullin, Chris	Timms, Stephen
Murphy, Denis (Wansbeck)	Tipping, Paddy
	Todd, Mark
Naysmith, Dr Doug	Tonge, Dr Jenny
Norris, Dan	Trickett, Jon
O'Brien, Mike (N Warks)	Truswell, Paul
Olner, Bill	Turner, Dennis (Wolverh'ton SE)
Öpik, Lembit	Turner, Dr (Kemptown)
Organ, Mrs Diana	Turner, Neil (Wigan)
Osborne, Ms Sandra	Twigg, Derek (Halton)
Palmer, Dr Nick	Twigg, Stephen (Enfield)
Pearson, Ian	Tynan, Bill
Perham, Ms Linda	Vis, Dr Rudi
Pickthall, Colin	Watts, David
Pike, Peter L	Webb, Steve
Plaskitt, James	Whitehead, Dr Alan
Pollard, Kerry	Wicks, Malcolm
Pond, Chris	Williams, Rt Hon Alan (Swansea W)
Prentice, Ms Bridget (Lewisham E)
Prentice, Gordon (Pendle)	Williams, Alan W (E Carmarthen)
Prescott, Rt Hon John	Williams, Mrs Betty (Conwy)
Primarolo, Dawn	Winnick, David
Prosser, Gwyn	Wood, Mike
Purchase, Ken	Woolas, Phil
Quin, Rt Hon Ms Joyce	Worthington, Tony
Quinn, Lawrie	Wray, James
Radice, Rt Hon Giles	Wright, Anthony D (Gt Yarmouth)
Rammell, Bill	Wyatt, Derek
Rapson, Syd
Raynsford, Nick	Tellers for the Noes:
Reid, Rt Hon Dr John (Hamilton N)	Mr. Don Touhig and
Rendel, David	Mr. Greg Pope.

Question accordingly negatived.