§ 5.7 p.m.
§ Further consideration of amendments on Report resumed on Clause 48.
Lord McNally moved Amendment No. 57:
Page 54, line 28, leave out paragraph (a).
§ The noble Lord said: My Lords, before that government commercial break, these Benches were chided by the noble Lord, Lord Bach, for not intervening on Amendment No. 56. I do not know whether the noble Lord's Chief Whip heard those remarks. I assure the noble Lord that if he is encouraging interventions on every amendment, we shall be here rather late tonight.
§ Lord Bach
My Lords, I encouraged an intervention on that amendment alone. There was reason for doing so; that reason has obviously not reached the noble Lord.
§ Lord McNally
My Lords, the general suspicion about government access to keys formed part of the earlier discussion and will unfold more strongly as the amendments are debated. That general unease is widely shared. I received an open letter with about 50 signatories. The key sentence states:The ability of Government to demand decryption keys creates a dangerous precedent.401 The noble Baroness, Lady Thornton, may find it interesting to note that among the signatures are those of representatives of the Royal College of General Practitioners, the Royal College of Nursing, the Brook Advisory Centres and others. I think that they are in her bailiwick in terms of the Bill, yet they still have concerns about the implications. I do not want this matter to be seen as an attempt at a division between a cold-hearted and indifferent industry lobbying vigorously on one side and the caring professions lining up behind the Government on the other. I beg to move.
§ Baroness Thornton
My Lords, I too have accessed these lists. There are no childcare organisations involved. I point out to the noble Lord, Lord Cope, that I discussed the matter with Poptel because its name is on the list. It is an organisation with which I have been familiar for many years. It was very keen to assure me that its clients are not involved in this matter. The question here is that children's interests are not represented by these organisations. That is the problem.
§ Lord Phillips of Sudbury
My Lords, Amendment No. 57 is grouped with Amendments Nos. 58 and 59. If it is convenient, I shall deal with the three together. The three amendments address broadly the same point as was addressed by Amendment No. 50 which was debated at some considerable length last night. Your Lordships will remember that I endeavoured to paint a scenario where Steve and Willie were engaged in exchanging information and where, wholly innocently, Willie could find himself on the wrong side of the law in circumstances also addressed by Clause 48(3) of the Bill.
I do not propose to repeat the explanation that I gave last night. As I have said, the issue is the same. The Minister gave me an assurance that he would make sure that there were no circumstances in which an innocent recipient of information could find himself or herself on the wrong side of this provision or that dealt with by Amendment No. 50. On the basis of that assurance and after consideration of the matter, I do not propose to say any more on this occasion.
§ Lord Lucas
My Lords, the truth of it is that the Government's present position leaves Willie exposed. It appears that there is very little that the Government wish to do about it. It seems to me that there are difficulties in dealing with the problem piecemeal in trying to make it slightly more difficult for the Government or their agents to raid someone's keys and therefore expose correspondence and business to attack. The measures proposed in these amendments are sensible in themselves, but they go only part of the way. The more we hear about the Government's attitude and concerns, the clearer it becomes that we need to be more radical in our efforts to make sure that keys should be kept confidential where that is essential.
§ 5.15 p.m.
§ Lord Bassam of Brighton
My Lords, the effect of Amendment No. 57 will be as follows. The fact that someone does not have the protected information in his possession would not be enough to convent the disclosure requirement into a requirement to disclose a key. The implication is that the person served with that notice should be able as of right to obtain access to the information in order to provide the plain text.
We have already debated Amendment No. 44 which raised the same point. I explained at that stage why the idea of access to protected information in all circumstances simply would not work.
Amendment No. 58 also touches on similar ground covered by Amendment No. 44. I believe the reasoning behind the amendment is that a person served with a Section 47 notice who has only part of the key, should be able to come to some arrangement with persons holding the other parts of the key to enable the plain text of information to be accessed.
The suggestion is that a person served with a notice should be permitted to seek the assistance of any persons holding the protected information. That is very similar to the point that we have already discussed. There may be cases where exactly the kind of arrangement mentioned by noble Lords would be appropriate and in that case that would happen by arrangement with the person giving the notice.
But we cannot turn that into a general right to seek assistance. The reason is that seeking assistance from the holder of the protected information may tip off the person under suspicion. I hope that the noble Lord will accept that reasoning and feel able to withdraw the amendment on that basis.
Amendment No. 59 would delete Clause 48(3)(c) which enables a Section 47 notice to contain a direction that a key is to be disclosed by virtue of Clause 49. It seems to me that that is a consequential change to Amendment No. 71 which proposes that Clause 49 should be deleted. We shall come to discuss the merits of that amendment later on.
I can see what lies behind Amendment No. 60. As I understand it, it seeks to ensure that a key may not be required to be disclosed where there is a less onerous means of obtaining the relevant information. I believe that part of what noble Lords are seeking here is already in the Bill. In that regard I mention three matters. First, none of the Part III powers can be used unless it is not reasonably practicable to obtain the protected information by some other means. That can be found quite clearly in Clause 47(2)(d). Secondly, a person served with a notice requiring disclosure of a key can use any key at his or her disposal which puts the relevant protected information into an intelligible form. The choice of key is entirely theirs. I believe that I made that point when we were discussing this matter in Committee.
Thirdly, the service of a notice requiring key rather than plain text is tightly controlled by Clause 49. We believe that that clause provides exactly the right balance. It recognises that demanding keys requires special circumstances. The difficulty with the 403 amendment is that it would undermine the effects of Clause 49. It would unsettle the balance and that disturbs us most. I trust that with those fairly clear explanations the noble Lord will withdraw his amendment.
§ Lord McNally
My Lords, the Minister is right in that what we are seeking is a proper balance in these matters. I do not believe that at the moment the Government fully appreciate how serious and deep is the concern about access to keys. I believe that high-tech industries use simple words for very clever and scientific matters. I have always believed that the nuclear industry could have found a better word than "flask" for carrying its nuclear waste given the implications of fragility in the word "flask". In some ways a key gives an impression of something one has on a chain on a belt rather than a complicated code which gives access to an immense amount of information.
The suspicion remains among people who hold these codes that agencies will try to obtain the most advanced codes to gain access to most information. I appreciate that during the passage of the Bill the Government have offered various reassurances to meet that concern. In a later debate we may deal with whether they are trying to achieve the impossible.
I appreciated the Minister's explanation and I hope that he appreciates the concerns about not only his intentions but also the implications of the legislation for owners of keys. In the light of his explanation, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 58 to 62 not moved.]
Lord Lucas moved Amendment No. 63:
After Clause 48, insert the following new clause—
- CASES IN WHICH PROOF OF CORRECT DISCLOSURE MAY BE REQUIRED (NO. 2) 24,323 words, 1 division