§ 3.6 p.m.
§ Lord Bassam of Brighton
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(Lord Bassam of Brighton.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.12
§ [THE CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 12 [Maintenance of interception capability]:
The Earl of Northesk moved Amendment No. 48A:
Page 14, line 2, leave out ("it appears to him") and insert ("are").
§ The noble Earl said: In moving the amendment, I speak also to Amendments Nos. 48B and 49A. My purpose is straightforward. Many of the powers granted to the Secretary of State in the Bill are significant. I accept that the existing drafting is a standard formulation but I see no reason why it should not expressly reflect that, in the most important areas where these powers are to rely on a matter of judgment, such judgments should be objective—that is, a matter of fact—rather than subjective—that is, constrained by the discretion of the Secretary of State. Hence my suggested change of wording.
§ At least in part, I have the well-being of the office of the Secretary of State in mind. While accepting that any Home Secretary should always be responsible for his actions, instances where the decision-making process in the Home Office has been subject to an allegation of political taint have perhaps been on the increase in recent years. This is regrettable. The job is difficult enough without having to run that gauntlet. I cannot help feeling that it is important to minimise this with respect to the interception regime.
§ I am particularly concerned about this matter in the context of Clause 12. If, as I believe they should, the Government accept the proposition of my noble friends on the Opposition Front Bench that there should be a technical approvals board to advise the Secretary of State, it defies logic that its advice should not be one of the principal determining factors in the shaping of the obligations to be imposed by orders under this clause. That being so, it should be possible to frame such orders on the basis of the factual evidence so adduced: that they should be drafted objectively rather than subjectively.
§ With respect to Amendments Nos. 48B and 49A I am conscious that I run the risk of being accused of over-egging the pudding. Having spent so many happy hours with the Financial Services and Markets Bill. I am only too well aware that the attractions of the "reasonable" test on the face of legislation are seductive—perhaps overly so. No doubt that consideration will form part of the Minister's defence.
§ None the less, I believe that the issues with which Clause 12 is concerned are of major significance and would benefit from the additional constraint that I propose. While we shall no doubt return to the matter in more detail with Amendments Nos. 55 and 57, it is enough at this stage to say that the Bill will impose huge burdens both in terms of regulation and of cost on e-commerce, thereby undermining the Government's aim of making the UK the best place in the world to do e-business. Surely, it is not too much to ask that these burdens should be reasonable. I beg to move.
§ Lord Cope of Berkeley
I believe that Amendment No. 48A would be more powerful than my noble friend 13 suggests. Removing the words "it appears to him" and substituting the objective test places any court before which such an issue appears in a stronger position. Instead of the Home Secretary and his representatives having only to suggest that "it appears" to the Secretary of State, they would have to justify the case objectively. That puts more muscle behind the provision, and desirably so. As we shall no doubt discuss in a few minutes, the potential burden being placed on industry is extremely heavy.
Amendments Nos. 48B and 49A appear eminently reasonable—and that is the word they seek to insert. While my noble friend moved them in a modest way, they are important in reassuring those in the industry and others outside about what is happening as regards the legislation.
Amendment No. 50A stands in the names of noble Lords on the Liberal Democrat Benches. I do not want to pre-empt what they may say, but I believe that its object is to bring the interception of communications commissioner into the decision-making process. It is a way of ensuring that the commissioner can do this part of his job, and it is important that he should. If the Secretary of State alone, on the basis of what appears to him to be best, makes the arrangements, the commissioner may have difficulty fulfilling his responsibilities. None of us wants that.
§ Lord McNally
The noble Lord, Lord Cope, elegantly expressed the purpose of our amendment. We are not sure what the complete powers of the commissioner should be, but it is our plea that he should be given the technology and equipment to do his job properly.
At the start of our proceedings, perhaps I may take note of two press comments which might provide encouragement for the long hours ahead. I am afraid that we have not impressed Mr John Norton of the Observer, who believes that our work is sometime a cross between Gilbert and Sullivan and Kafka. All I can say to Mr Norton is that he is not alone in that belief. However, encouragement is to be found is Saturday's Guardian. According to an NOP poll, computer geeks are now considered the coolest kids in the class. Therefore, as we set off on another marathon sitting, I hope that some of that aura of computer geeks will rub off on some of us involved in the Bill.
§ 3.15 p.m.
§ Lord Bassam of Brighton
Famously, I am not yet a computer geek. However, I am trying and practising and my son is giving me good advice.
Amendments Nos. 48A, 48B and 49A have the effect of introducing reasonability requirements as additional factors or replacements to existing terminology in subsections (1), (2) and (3). Clause 12(1), as drafted, imposes a duty on the Secretary of State to ensure that any obligations placed on communications service providers (CSPs) to maintain an intercept capability are reasonable. In our view, the three amendments do not take the requirement any further.
14 The Government have no interest in imposing unreasonable requirements on CSPs. Initially, it is properly for the Secretary of State, after the consultation process, to come to a decision on what is a reasonable intercept capability.
Looking at the amendments, we take the view that there is not much between us. The Bill provides that the reasonableness is a matter for the Secretary of State's judgment. The amendment appears to try to make that into a form of objective test. But the concept of reasonableness implies a matter of judgment. Because it is the Secretary of State who must make the order and give the notices, it is inevitable and proper that he must decide what is reasonable in a particular set of circumstances. I suspect that that would be the case even under the noble Earl's amendment. As I said, I do not believe that there is a great deal between us. Of course, the "reasonable" requirement in Clause 12(1) is judicially reviewable and therefore the Secretary of State's judgment can be challenged as to whether it is reasonable in the circumstances.
Amendment No. 50A. aims to respond to concerns that some people have expressed relating to the practical difficulty for the interception commissioner in carrying out his duties in the face of what we would all agree are considerable technical complexities relating to interception systems. The commissioner's role in that regard is clearly important and any difficulties he encountered in checking the use made of the system would be of tremendous concern to us all.
It would therefore seem sensible to include in the Bill provision for notices to specify or describe a requirement along the lines of the amendment. I trust that noble Lords will be patient with us while we consider how best to word it. We take the point made in the amendment and I can give an assurance and a commitment today that we shall give the issue careful consideration and return to it at Report stage.
I hope that in view of my comments and the commitment I have given, the noble Earl will consider withdrawing the amendment so that we can better consider Amendment No. 50A in particular.
§ The Earl of Northesk
I thank the Minister for that reply. I take the point made by my noble friend Lord Cope. At the back of my mind was the thought that the courts, and thereby the general public and e-commerce, should have more clout in this area. The Government have consistently said that the Bill is about striking the right balance between the needs of law enforcement and the rights of the citizen. To my mind, the amendments are a modest attempt in that direction.
I cannot speak for the Liberal Democrat Front Bench, but I am not wholly convinced by the Minister's response to my amendments. If, as he says, there is little between us, that implies some empathy with my purpose. I have no wish to bring the matter back at a later stage and therefore would like to seek the opinion of the Committee.
§ Lord Harris of Greenwich
I believe that that is most unreasonable. As the noble Earl will be aware, we are 15 seriously disturbed about a number of aspects of the Bill. However, the noble Lord indicated that the Government are prepared to consider the issue between now and Report. I do not believe that at this stage it is sensible to seek to divide the Committee on such a matter.
§ The Earl of Northesk
My reason for wanting to divide the Committee is that, although the Minister was very charitable with the Liberal Democrat Front Bench amendment, I felt that he was less than charitable with my own. I have no wish to pursue this matter at a later stage in our proceedings and, therefore, I still wish to seek the opinion of the Committee.
§ 3.20 p.m.
§ On Question, Whether the said amendment (No. 48A) shall be agreed to?
§ Their Lordships divided: Contents, 64; Not-Contents, 121.16
|Division No. 1|
|Aberdare, L.||Jopling, L.|
|Anelay of St Johns, B.||Lawson of Blaby, L.|
|Astor of Hever, L.||Lucas. L. [Teller]|
|Astor, V.||Luke, L.|
|Attlee. E.||Lyell, L.|
|Beaumont of Whitley, L.||McColl of Dulwich, L.|
|Blackwell, L.||Masham of Ilton, B.|
|Brabazon of Tara, L.||Miller of Hendon, B.|
|Bridgeman, V.||Mowbray and Stourton, L.|
|Brougham and Vaux, L.||Naseby, L.|
|Burnham, L.||Northesk. E. [Teller]|
|Buscombe, B.||O'Cathain, B.|
|Byford. B.||Oppenheim-Barnes. B.|
|Campbell of Alloway, L.||Peel. E.|
|Carnegy of Lour, B.||Perry of Southwark, B.|
|Coe, L.||Peyton of Yeovil, L.|
|Cope of Berkeley, L.||Rees, L.|
|Cox, B.||Rees-Mogg, L.|
|Dean of Harptree, L.||Renton. L.|
|Dixon-Smith, L.||Roberts of Conwy. L.|
|Elles, B.||Saltoun of Abernethy, Ly.|
|Elliott of Morpeth, L.||Seccombe, B.|
|Fookes, B.||Selborne, E.|
|Glentoran, L.||Selsdon, L.|
|Goschen, V.||Sharpies, B.|
|Hanham, B.||Shaw of Northstead, L.|
|Hayhoe, L.||Skelmersdale, L.|
|Henley, L.||Soulsby of Swaffham Prior. L|
|Higgins, L.||Swinfen, L.|
|Howe, E.||Trumpington, B.|
|Howell of Guildford, L.||Vivian, L.|
|Jenkin of Roding, L.||Young, B.|
|Acton, L.||Bach, L.|
|Addington, L.||Barnett, L.|
|Ahmed, L.||Bassam of Brighton, L.|
|Alli, L.||Berkeley, L.|
|Amos, B.||Blease, L.|
|Ampthill. L.||Bragg, L.|
|Andrews, B.||Brett, L.|
|Archer of Sandwell, L.||Brooke of Alverthorpe, L.|
|Avebury, L.||Brookman, L.|
|Bruce of Donington, L.||Lipsey, L.|
|Burlison, L.||Lofthouse of Pontefract, L.|
|Carter, L. [Teller]||Lovell-Davis, L.|
|Christopher, L.||Macdonald of Tradeston, L.|
|Clarke of Hampstead, L.||McIntosh of Haringey, L. [Teller]|
|Cledwyn of Penrhos, L.|
|Clement-Jones, L.||Mackenzie of Framwellgate, L.|
|Clinton-Davis, L.||McNally, L.|
|Cocks of Hartcliffe, L.||Mason of Barnsley, L.|
|Cohen of Pimlico, B.||Massey of Darwen, B.|
|Darcy de Knayth, B.||Merlyn-Rees, L.|
|David, B.||Mitchell, L.|
|Davies of Coity, L.||Morris of Castle Morris, L.|
|Desai, L.||Nicol, B.|
|Dixon, L.||Palmer, L.|
|Dormand of Easington, L.||Parekh, L.|
|Dubs, L.||Patel of Blackburn, L.|
|Evans of Temple Guiting, L.||Paul, L.|
|Ezra, L.||Peston, L.|
|Falkland, V.||Phillips of Sudbury, L.|
|Farrington of Ribbleton, B.||Pitkeathley, B.|
|Faulkner of Worcester, L.||Ponsonby of Shulbrede, L.|
|Fitt, L.||Prashar, B.|
|Gavron, L.||Ramsay of Cartvale, B.|
|Gibson of Market Rasen, B.||Redesdale, L.|
|Goodhart, L.||Rendell of Babergh, B.|
|Gordon of Strathblane, L.||Richard, L.|
|Goudie, B.||Rodgers of Quarry Bank, L.|
|Gould of Potternewton, B.||Roper, L.|
|Grabiner, L.||Scotland of Asthal, B.|
|Grenfell, L.||Serota, B.|
|Hardy of Wath, L.||Sewel, L.|
|Harris of Greenwich, L.||Shepherd, L.|
|Harrison, L.||Shore of Stepney, L.|
|Haskel, L.||Simon, V.|
|Hayman, B.||Steel of Aikwood, L.|
|Hilton of Eggardon, B.||Stoddart of Swindon, L.|
|Hogg of Cumbernauld, L.||Strabolgi, L.|
|Hollis of Heigham, B.||Symons of Vernham Dean, B.|
|Hughes of Woodside, L.||Taylor of Blackburn, L.|
|Hunt of Chesterton, L.||Thornton, B.|
|Hunt of Kings Heath, L.||Tordoff, L.|
|Hylton-Foster, B.||Turner of Camden, B.|
|Irvine of Lairg, L. (Lord Chancellor)||Warner, L.|
|Warwick of Undercliffe, B.|
|Islwyn, L.||Weatherill, L.|
|Jeger, B.||Whitaker, B.|
|Jenkins of Putney, L.||Wigoder, L.|
|Judd, L.||Wilkins, B.|
|Lea of Crondall, L.||Williams of Elvel, L.|
|Lester of Herne Hill, L.||Williams of Mostyn, L.|
|Levy, L.||Young of Old Scone, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ [Amendment No. 48B not moved.]
§ 3.30 p.m.
Lord Cope of Berkeley moved Amendment No. 49:
Page 14, line 13. after ("State") insert ("and the Technical Approvals Board").
§ The noble Lord said: These amendments address one of the most important issues in this very controversial Bill: the huge potential burden to be placed on industry, commerce and finance.
§ The burden does not just fall on Internet service providers and those in the middle of dealing with such services, but rebounds on every company that uses the Internet for business, which means every significant company in our economy. This is not just a technical 17 point that concerns only a few clever companies; it concerns everybody. The Bill provides that every service company providing Internet services can be made to install a so-called black box so that all the Internet traffic that it is responsible for can be monitored.
§ The Home Secretary and others who support the Government keep telling us not to worry because such fears are over the top. They tell us that nobody thinks that all Internet service providers should be covered by the provisions. On the contrary, they think that the Bill will be very selective and that far fewer people will be affected than is being made out. They say that there is a lot of scaremongering going on, but in the Bill the Home Office asks Parliament for an all-embracing power to get at every e-mail that passes through this country.
§ The Home Office goes on to say that the United Kingdom is ahead of practically every other nation and that we are tightening up more strongly and more quickly than others, as if that were something to boast about. It is very important to look at the issue in the international context, because there is nothing more international than the Internet. It is worldwide and instantaneous and enables people to move their businesses and take their transactions and communications elsewhere very easily.
§ It is important that every country does its best to find a way of catching criminals who use the Internet—both those who use it in a specific, electronic way, with what one might call new types of e-crime, and those who use it for crimes that we are perfectly used to. The Internet is capable not only of making business more efficient, but of making crime more efficient. It is important to address the problem and move forward alongside other nations, but we should not make our companies—not just our e-companies but all our companies—uneconomic and uncompetitive.
§ The central problem is the indiscriminate nature of the power. It is a bit like a problem that someone once suggested to me involving strawberries. A government inspector might come along to a farm and say "There are grubs in some of your strawberries, but don't worry because we have found a spray that opens up the strawberries and allows us to see where the grubs are, so we propose to spray all your fields of strawberries". Of course, that will ruin the whole crop if they are not careful, and it is no good saying "Ah, but there is a fence round the field and we are not going to let other people in to look at your strawberries". If people think that all the Internet is going to be opened up, they will not do business in this country. Plenty of evidence has emerged in the past few weeks of people already making such plans in connection with the Bill.
§ There is also some doubt about how it will be technically possible to have a reasonable interception capability for communications over the Internet. I am a humble user of the Internet, e-mails and the web, not a technical expert, but I have talked—electronically and more conventionally—with those who know a lot more about the subject than I do. It is clear that the technical difficulties are very large. However, it is also 18 clear that today's technical difficulties are not the same as those that will be around in 12 months, two years or five years.
§ We have seen in the past few years that technology changes very rapidly. We all know of the huge changes that have taken place, and they are speeding up rather than slowing down. That means that the technical capability to intercept communications reasonably, as we would all wish, will have to change rapidly in a short time. In those circumstances, the balance that the Home Office keeps talking about can best be kept by closely involving the Internet community—those who are on the receiving end of the controls—together with what I can loosely call the security community, which includes the police, the security agencies, Customs and Excise and others who need the interception capability.
§ The Bill refers to consultation. Various bodies have met to look into how the interception is to be achieved. That is fine—indeed, it is desirable—but it does not go far enough. We are dealing with a serious issue: the need to find a balance between the efficiency and competitiveness of all our industry, commerce and finance, the reasonable protection of citizens and the ability to fight crime. Parliament should consider establishing a statutory board to continue looking at these matters. The board should not just be a one-off but should continue to work as technology changes to achieve the desirable end of fighting crime without the undesirable consequences of stopping business or interfering with privacy.
§ The immediate proposal in this set of amendments is for a technical approvals board. I am not particularly fussed about the name nor, indeed, about the other details of the board. It is the principle behind it which I am anxious to press this afternoon.
§ The particular proposal which is in Amendment No. 54, in the form of a new clause, is that there shall be six members appointed by the Secretary of State as representative of persons likely to be subject to and affected by the technical obligations of the Act. So, the board will comprise not only those persons who are subject to these obligations—the Internet service providers—but also those affected by them—the companies which use the Internet. Six members of that character should be appointed to the board and six members appointed by the Secretary of State who, as the amendment provides, are representative of persons specified in Clause 6; that is, the police, security services, Customs and so on. The amendment provides also that the interception of communications commissioner, or someone appointed by him, should preside over the board which should have the power to commission such expert advice as it deems necessary. That is important too.
§ That is the board as it is set out in the new clause. But, as I say, I am not absolutely sold on every detail. It is important that there should be a statutory body of that kind which can bring together on a continuing basis in the future those difficult considerations which need to be brought together.19
§ Once the initial order under which the Secretary of State would issue notices to individual Internet service providers has been made, the technical approvals board would, under Amendment No. 53, report to the Secretary of State its conclusions as to whether the obligations imposed in the suggested order will achieve their proper purpose; are proportionate to that purpose; and will achieve that purpose also without compromising the security of communications not covered by an interception warrant.
§ That last point is important because one of the difficulties, as I hope my analogy with the strawberries indicated, is that quite apart from the communications of criminals or suspected criminals, which are to be targeted by all this, many innocent communications will also be opened up. That is not so with telephone tapping, for the most part. Under the present law, a warrant can be issued by the Home Secretary and the telephone of an individual suspected criminal can be tapped and his outgoing and ingoing communications can be listened to in accordance with the warrant and for the purpose for which that is necessary.
§ However, that is not the position with the Internet. All sorts of other communications are likely to be exposed too. Their security is of the first importance. That is why that provision is suggested in Amendment No. 53.
§ As I said, we can argue further about the details of this matter. But it is important that a statutory body should exist which is in a position to make recommendations to the Secretary of State. Ultimately, the amendments still leave the responsibility with the Secretary of State; for the Secretary of State to lay an order before Parliament; and for Parliament to approve it. But better regulations and orders would be put before Parliament and before the Secretary of State if the amendments were accepted and such a board were established.
§ The amendment does not solve the whole problem. It does not get away from the technical difficulties. But it attempts to set up a means by which the technical difficulties can be measured by the experts who must operate the system against the desirable aims of the police and other security authorities. I beg to move.
§ 3.45 p.m.
The Chairman of Committees
As Amendment No. 53 is also being spoken to, I should point out to the Committee that there is a mistake in that amendment as printed. In line 3, "subsection (1)" should read "subsection (7)".
§ Lord McNally
Just in case those on the Conservative Benches have another rush of blood to the head, if a Division is called, we shall support the Government. But before those on the Government Benches become too ecstatic, I should say also that if the Government's reply to this debate is not suitably constructive, we shall consider pressing this matter very firmly indeed on Report.
20 The noble Lord, Lord Cope, has put his finger on the central dilemma that we have in dealing with this Bill. As I believe I said on Second Reading, it is quite clearly a pantomime horse of a Bill. It is a regulatory Bill dealing with old post and telecommunications legislation and it is a regulatory Bill to deal with the new world of e-commerce. The e-commerce part of the Bill is extremely difficult for Parliament to deal with.
Mr John Norton thinks that we are "boobies" dealing with this matter. Again, at the beginning of our proceedings, I said that it might have been better had we resolved into a Standing Committee which could take evidence from the experts. It is very clear that many of the matters which we are discussing and the powers for which the Government are asking need "future-proofing" so that we do not pass legislation which is almost immediately out of date because of changes in technology.
I must say, too, that I am rather worried about the Home Office assuming regulatory powers over business in that way. Again, one's suspicion is that it was too hot for the DTI to handle and the good old Home Office, fulfilling its Lord Mayor's Show role, comes along to sweep up this matter.
Certainly, the Home Secretary has become extremely tetchy with business. Not only has he fired off letters to the Financial Times, but there have been extensive and detailed briefings about how much industry is over-egging the pudding and exaggerating the costs and burdens. If the Home Secretary has friends in the e-commerce industry who are genuinely expert on the implications of the Bill and who agree with him that the costs and burdens are reasonable, those friends had better speak up fairly quickly because the array of informed business opinion against the Home Secretary is considerable. This House should seriously take account of that.
Also, the noble Lord, Lord Bassam, and Ministers in the other place have promised that they are in listening mode. Again, my advice to them, before we reach Report, is to get alongside the industry—those in the industry have a number of reputable umbrella bodies to which they can talk—and to get the industry to say what are reasonable burdens, because then the criticisms of these Benches in relation to cost will melt away.
However, I do not think it is enough for the noble Lord, Lord Bach, simply to look irritated from a sedentary position when every informed source in e-commerce says that the burdens are too much and that they will have long-term damaging effects on our hope of becoming a world centre for e-commerce. That is a serious charge which the Government must treat seriously and answer if they are not to find that this House lacks confidence in this legislation.
The suggestion of a technical approvals board has considerable merit. For the same reasons, I am extremely worried about the Home Office taking on judgments without proper and expert help, not least because, as was mentioned by the noble Lord, Lord Cope, we are trying to deal with a rapidly changing, 21 highly technical industry. The technical approvals board is a reasonable and practicable suggestion for "future proofing" the legislation.
Today, we on these Benches are in listening mode. However, we hope that the Ministers and the Home Office take seriously our belief that in this matter there is a case to answer.
§ Viscount Goschen
I support the amendments moved and spoken to by my noble friend Lord Cope. There seems to be little difference of view among all parties who have contributed to this and previous debates in this Chamber and, indeed, among independent commentators and figures from industry about support for the objectives of the Bill.
We all want to prevent crime on the Internet and ensure that the Government have at their disposal the maximum tools reasonable to combat the sort of hideous crimes that we have seen and heard about taking place on the Internet. I do not believe it is possible to do that efficiently without the support of the industry. However, it is clear that high levels of concern are being voiced from all quarters within the industry.
Industry knows more about e-commerce than do the Government, and will continue to do so. As has been stated, the technology is moving extremely fast; faster than the time it will take for the Home Office to consider all the implications. I would also suggest that the competitive balance within this new industry is changing extremely rapidly. National borders present one of the interesting challenges faced by the Internet. Clearly, this is an international industry and an international solution needs to be found.
The amendments tabled by my noble friend do not claim to solve the problem. However, they go some way towards allowing industry a statutory position to contribute to the debate and to ensure that those who seek to regulate the industry do not take precipitate action, or at least advise against that. In the final analysis, the decisions will be with the Government.
I believe that industry genuinely wants to help. It does not want to be associated with a pariah sector known to be a haven for crime. Industry will be in the best position to ensure that government regulations can be made as effective as possible. Clearly, the Bill poses a very real threat to the competitiveness of the e-commerce industry of the United Kingdom. I support the objectives of the Bill. However, mechanisms must be found to ensure that the concerns of industry are minimised, its support garnered and the regulatory regime made as robust as possible. I strongly believe that the amendment will contribute to that.
§ Lord Desai
I did not speak at Second Reading, so I beg indulgence to speak in Committee. This group of amendments is crucial to the whole nature of the Bill.
My main concern is about the civil libertarian aspects of a blanket licence to intercept. I have been following the debate in the newspapers. I should like positive assurance that just as telephone tapping is used carefully and only under strict conditions, 22 interception powers will be so used. It is alarming that employers can get away with reading their employees' e-mail. We are living in a country in which everyone can be hacked into by everyone else. If the Government were also to enter into that game, in possession of enormous powers, I would worry about the civil liberty aspects of the Bill.
Whatever the fate of this group of amendments, I see that the technical approvals board will include industry representatives and security representatives but no citizens representatives. I refer to ordinary users such as myself—people who are not Internet service providers but who are worried that their communications will be exposed. That is the first point on which I should like to lay down a marker.
Secondly, there is the much more contentious problem of whether or not such provision will mean an enormous cost to e-business. I have not read the report published by my colleagues at the London School of Economics. However, I have read the newspaper summary and heard the reply given by my right honourable friend the Secretary of State. I am not satisfied with either. As the noble Lord, Lord McNally suggested, we need expert judgment on whether the LSE report is valid. If it is not valid, it is no good just saying, "It is flawed". That sort of Oxbridge talk will not do. We need to know where it is flawed, point by point. We need alternative estimates of cost, subject to examination by an impartial evaluator, perhaps from abroad, who can tell us whether we are correct. That is important.
I am not such a great admirer of self-regulation as I used to be. We have seen the many mistakes made in the financial sector. I do not believe that e-business should be self-regulatory in this respect. However, if costs are to be imposed for such regulation, which is important for crime prevention, they should be independently assessed.
Finally, I refer to technical progress. I believe that things will change rapidly. In one sense, that cheers me up immensely. It means that if governments are behind the times, any legislation will soon be obsolete and I will have more civil liberties protected. However, unless we build in a provision to take care of technical progress, we will be back here in two years' time with another Bill of this kind. I hope we can prevent that.
§ Lord Swinfen
Many years ago, when the Data Protection Bill passed through this Chamber, it was handled by the Home Office. At that time it became apparent that the Home Office did not know how computers were being used or that they could talk to each other internationally. I wonder whether the Home Office today know as much about computers, their use and what they can do, as the professionals mentioned in Amendment No. 54. I refer to those who are technically-up-to-date and aware of new initiatives which are likely to come onstream in the near future. That is not the task of the Home Office. It is not a commercial organisation. If the Government do not like Amendment No. 54, I strongly advise them to table a similar amendment at a later stage.
23 Civil liberties have also been mentioned. I am concerned about medical confidentiality. I should declare an interest. I run a trust which sets up international tele-medical links using e-mail to help people who need expert medical advice in far-flung corners of the world. Knowing that their medical details can be intercepted, seen and examined will not please a number of those individuals.
§ 4 p.m.
§ The Earl of Northesk
I support the amendments of my noble friends. Few of us involved in the legislative process have time to keep pace with our mailbags, let alone keep up to speed with technological change. It has to be said that many of us, from senior members of the Cabinet down, are honest enough to confess that, although we are full of admiration for new technology, we do not really understand it, and are content to leave it to our children to, as it were, programme the video recorder. Under no circumstances should we underestimate the problems and difficulties that this poses.
Last week's report from the British Chambers of Commerce states:The Government has substantially underestimated the cost of compliance by ISPs. The most realistic estimate is in the order of £640 million over the next five years".As the noble Lord, Lord McNally, has pointed out, the gulf between that opinion and the Government's is huge. The important point is that if business and the ordinary citizen, even governments, are to have faith in e-solutions, the associated burdens, particularly in terms of costs and security, have to be seen to be both accurate and proportionate. To my mind, this gets to the heart of why a technical approvals board is so necessary. In every sense it would ensure the proportionality and functionally of e-solutions from an independent position of technical expertise. That has to make sense.
Having said that, I should now like to speak to my amendments in this group, Amendments Nos. 51A and 53A. With regard to Amendment No. 53A, in the event that the Government accept the wisdom of my noble friends' suggestion of a technical approvals board. it strikes me that their thoughts as to the practicality of obligations imposed by Clause 12 should, as a matter of course, inform the process; hence the amendment.
Regarding Amendment No. 51A, Clause 12(6)(c) refers to,such persons with statutory functions in relation to persons falling within that paragraph".I assume that this refers to Clause 12(6)(a). Perhaps the Minister could confirm that assumption. It is not immediately apparent from that text whether that is the case. I simply ask whether the clarity of the drafting would be improved by having the paragraph referred to expressly specified rather than asking the reader to rely on his intuition. I hasten to add that I have no problem at all with the sense conveyed by paragraph (c); of course, the category of persons defined are appropriate consultees for the purpose.
24 This leads me to the phrase "as he considers appropriate" in line 31. It will come as no surprise to the Minister that I have a more deep-seated objection here. It strikes me that this form of words sits uneasily with the intention expressed by,the Secretary of State shall consult".As I read subsection (6), it imposes an obligation to consult. That is explicit in the use of "shall" rather than "may". All good and well. But the phrase "as he considers appropriate" could be taken to represent an unnecessary and unwelcome dilution of that obligation. Perhaps the Minister could offer some explanation for that.
§ Lord Lucas
I, too, support my noble friends' amendments. Clauses 12 and 13, its companion, are one of the very few parts of the Bill where the Home Secretary's decisions and activities are subject to no form of provision whatsoever. That is entirely unjustified, because this is one part of the Bill where the Home Secretary clearly needs a good deal of supervision. There has been a considerable display by the Government, and the Home Office in particular, of a lack of understanding of how telecommunications, and indeed computer systems, work. Working from my own personal beef that the Government in three years of asking are unable to answer my Written Questions by e-mail, and looking at today's news that they have managed to lose 150,000 criminal records because they have not kept electronic back-ups, to looking at the Bill and the lack of understanding that it displays in so many places of the way that a modern communication system works, it is quite clear that in this aspect the Home Office needs supervision.
Business is quite right to worry when it is faced with costs of a magnitude that it can imagine when it is looking at a Home Office that does not understand what it is doing, a Bill which does not specify what should be done and which leaves the Home Secretary unadvised and unsupervised, and when business knows the complexity and rate of change of the systems that it is having to supervise. There is no longer any concept of location when it comes to messages. Once a message has left the local loop, it can be anywhere, even if you know it is going to end up in an ISP. An ISP does not have a route through that you can tap into; it has thousands of routes through, any of which can be used. There are no single points that you can tap into in any useful sense of the word. Point-to-point encryption may be employed anyway, and is only a year or two away generally. So even the addresses in the message may be encrypted and you cannot read them. The co-operation of the industry to make anything like this work is essential. The industry is faced with an immense and unguessable burden; and to avoid it all it has to do is to move its operations elsewhere.
I run a small e-commerce business. I happen to use an ISP in the UK. I could equally well use an ISP in Holland or Finland as long as it provided a large enough communications pipe into the UK. If the UK is going to provide burdens and an extraordinary lack of security compared with other countries in the 25 world—we shall come to this later—I am hardly likely to want to do my business in the UK. Certainly, multinational companies, which are known occasionally to sin, will not want the Government to know everything that they are doing, and will have a strong incentive not to place their core business with UK ISPs. This is an area where the industry has every right to ask for, and to expect, reassurance in the operation of the Bill, to know that the decisions that are being taken are being taken in co-operation with industry, and are being taken reasonably. Customers should also know what is being done to make sure that communications for which there is no warrant are safe, and that they are not going to turn up on someone's desk just because when looked at they happened to contain some interesting information.
§ Lord Phillips of Sudbury
I merely want to add the thought that the technical approvals board that is referred to in a number of these amendments, and which seems to us to be a good addition to the collection of protections under the Bill, might have on it a member of the civil liberties community, as well as, obviously, a plain majority of those with technical expertise. With technical matters in this field, I think that a civil libertarian component is apt. I put that thought to the Minister and the Committee for consideration.
§ Lord Bassam of Brighton
I have listened with great care to all that has been said in this important debate. The contributions made have been most helpful. The noble Lord, Lord McNally, was right to remind the Government that we need to continue to listen to, and to consult carefully, all the representative bodies that exist in the great "out there" on this particular subject. I refer to all the business and commercial interests. Other Members of the Committee reflected that point in their contributions. I think that it was the noble Viscount, Lord Goschen, who made the point that business enterprise actually understands, and is likely to understand, much more about these issues than government. That is very wise and sound advice. We have been listening very carefully, and even since our deliberations last week on the Bill, we have had further representations and have listened to more of the lobby who have been pressing us on this Bill and on this particular set of issues.
I think I can fairly make the point that there has been a lot of press criticism and it is only right that the Government should respond to those criticisms. The noble Lord, Lord McNally, said that we were overreacting to the criticism. But I feel that, between us, we have been able to generate a debate in public about this Bill. I am pleased that that is the case. When we put our arguments up against some of the allegations being made, we find that those allegations are disproportionate in their content.
I understand the argument that sometimes one has to shout to be heard and I suspect that at this stage that is exactly what both sides are trying to do. But we have been able to focus down on the key issues and give further thought to them. For what it is worth, I believe that that has been most constructive.
26 I turn to the detail of the arguments. With regard to Amendment No. 49 and related Amendments Nos. 52 to 54 in relation to the technical approvals board, I entirely agree that any requirements placed upon industry by Part I of this Bill should be properly considered and reasonable. That is an extremely sensible first point. But the Bill already provides for that. Both through responses to the consultation exercise and in subsequent discussions, industry representatives have let us know that they favour continuing the close working relationships which they already have with the Government in this field, without the need for the involvement of any additional body.
Indeed, we are unaware which part of the industry is asking for a statutory body of the type described in the amendments. As yet no one has put that argument to us. Representatives of Internet service providers have made it clear that they would favour a non-statutory advisory group, much along the lines of the arrangements which we already have in place with telecommunications operators. They have been saying to us loud and clear that they want a set of voluntary arrangements of that sort. They have been neither asking for nor demanding a statutory technical advisory body.
I can say to the Committee that discussions are extremely well advanced on that topic with an existing group already identified as being potentially suitable. I am aware also that other groups have indicated their willingness to continue consultation on reasonable intercept capability—for instance, the Alliance for Electronic Business—and I welcome those offers. In response to the AEB's specific question on this topic, I can confirm that any order made under Clause 12 will only impose obligations based upon the best available options at reasonable cost. That formulation forms a significant part of our continued discussions.
In relation to Amendment No. 50, I cannot see how the introduction of a proportionality test would assist in judging the interception provision which a communication service provider may be required to set up. After all, the requirement will not be judged against any particular case. The purpose of the intercept capability is to ensure that the CSP is capable of intercepting communications when required. So the proportionality could be judged only against the general purposes for which interception may take place—for example, serious crime, national security and economic well-being—which would be the same in every case, effectively rendering the test meaningless. But there is the question of whether it is reasonable to expect a small ISP, for example, to set tip an intercept capability when there is minimal chance of the capability ever being used. That duty is already placed upon the Secretary of State at Clause 12(1).
I turn to Amendment No. 51. We believe it is entirely right and proper that users of communication services—the general public—should have the opportunity to offer their opinion on the use of interception and the circumstances in which it may be deployed as suggested in two of the amendments before us. They have been given that opportunity 27 during the public consultation exercise which took place last summer, and will have the opportunity again when the Government consult extensively, as we have promised, on the code of practice.
But Clause 12 is not about the principle of interception; it is about the practice and technical aspects of that process. It is difficult to see what the general public will be able to add to that. That is why we have restricted the requirement upon the Secretary of State to consult with those who will be able to make a meaningful contribution to the draft order. That is not to say that the process will be conducted in secrecy; far from it. The draft order will be placed on the Home Office website for all to see. But it is important to draw this fundamental distinction between whether or not interception should take place and the practical arrangements which come after that decision is made. I believe that users of communication services have already made their views clear on the former and that it will be up to those who understand the technicalities of the latter to contribute to the order-making process.
I am surprised at the amendment of the noble Earl, Lord Northesk, which seeks to remove subsection (6)(c) of Clause 12 from the Bill. We consider that we should consult with all appropriate parties. In that sense the wording is enabling rather than, as it were, a closing-down facility in the way in which the legislation is drafted. We therefore consider it to be entirely appropriate that an obligation should be placed upon the Secretary of State to consult with persons who have statutory functions in relation to communication service providers. We have in mind such bodies as Oftel and the Department of Trade and Industry. I should have thought that there would be reasonably common agreement on that point.
In his Amendment No. 53A, the noble Earl, Lord Northesk, wishes to include reference to the technical approvals board in subsection (8), and the fact of whether or not a person is capable of providing a reasonable intercept capability. I have already discussed at some length why the Government do not see the necessity of a technical approvals board set up in the way envisaged by the Opposition. We cannot accept that amendment.
Amendments Nos. 89 and 90 require all the requirements for data not already in existence to be first approved by a technical approvals board. It is important to explain that the effect of the framework which this chapter of the Bill establishes is to formalise in law the arrangements which have been in place for many years and which have been developed through the ACPO Telecommunications Group, which is a joint law enforcement communication service provider body. There are already in place service level agreements, contact points, designs of forms and so forth. They include agreements between parties as to what data are capable of being provided and the levels of sensitivity attached to specific techniques. So there is no question of a law enforcement body suddenly requiring whole new types of data to be collected without consultation and agreement. That point is 28 dealt with in the Bill at Clause 21(7). That should be a reassurance to industry and was included very much at industry's request.
We need to consider also the times when future data are likely to be required; that is, during ongoing, often urgent operations—for example, to find out where a kidnapper is calling from. That type of requirement would relate to the data which the communication service provider is capable of providing but has not yet collected. To introduce another level of technical oversight in those circumstances will not assist; in fact, it may well get in the way. We are mindful of the unnecessary burden of additional bureaucracy that it might create, the time it would take to process and all the other existing aspects it may have to overcome. In those circumstances, we feel that the amendment is not necessary.
The noble Earl, Lord Northesk, asked a number of questions, to which I now have the answer. First, he asked whether subsection (6)(c) meant subsection (6)(a). The answer to that is obviously yes. The noble Earl also asked whether the Secretary of State could get away with consulting no one under Clause 12(6). The answer is, only if he concludes that it is not appropriate to consult anyone, which could be a wholly perverse conclusion in the light of the duty imposed by this subsection. Therefore, in practice, the answer is no. The Secretary of State will not get away with consulting no one. In those circumstances, we would expect him to do so—
§ 4.15 p.m.
§ The Earl of Northesk
That was precisely my argument. What on earth is the point of having the words "as he considers appropriate" in the clause if they give him a "get-out" for something that he would never do?
§ Lord Bassam of Brighton
As I said, the wording is an attempt to try to introduce some flexibility. It is not a closing-down manoeuvre or an attempt to be unhelpful.
I believe I dealt quite fully with the points raised during the debate, as well as some of the issues. We understand the arguments that have been made. But the question upon which the Committee needs to focus is whether the industry wants it. The answer that we have received consistently on that question is, no. However, the industry does want a low-cost but flexible advisory body that is not statutorily based. That has been made very clear to us throughout our discussions. We are happy to continue with those discussions. We shall be happy to formulate the operations of the technical discussions, but industry does not think that it is essential, right or necessary for us to have a statutory technical advisory body. In view of that fact, I invite noble Lords who have tabled these specific amendments not to press them this afternoon. Clearly we can continue in our discussions with industry on such issues, but the latter has made its view crystal clear to us.
§ Lord Phillips of Sudbury
Before the Minister sits down, perhaps I may assist both him and the Committee by asking the following question regarding his final point on discussions over an advisory committee. If the advisory committee comes into existence, can the noble Lord say whether those discussions will be confined to generalisations or whether they will extend to specific cases where the Secretary of State was contemplating making an order under Clause 12? If those discussions were to extend to particular cases—in many ways that would be the most helpful role that an advisory committee might lend to a Minister—I suggest that legal problems may well arise as regards having a non-statutory body in that role.
§ Lord Bassam of Brighton
It would be unusual for that role to include discussions on specific cases. I think it would be possible for some more generalised discussion to take place on the application of the Secretary of State's powers. However, as regards specifics, I should be very wary of that because of the point made by the noble Lord. I should certainly want to take further advice.
§ Lord Lucas
The Minister mentioned Clause 21(7), so perhaps he can clarify a matter in that respect. Can he say whether that clause rules in or rules out an instruction by the Secretary of State that an ISP shall design its system so that it is convenient for tapping; in other words, so that it pushes its outflow, say, through one convenient tapping point? Alternatively, would that be prevented by this clause? What level of interference with the ordinary structure and operation of an ISP is ruled out by the clause?
As I said before, there are very few clauses in the Bill under which the Secretary of State's actions are not subject to any form of supervision. I have in mind in particular the point raised in the last two lines of Amendment No. 53. We are looking at an interception capability here that is essentially "unauditable". Once an interception capability is in place, there is no way that anyone can know what it has been used for unless some very strict controls are put in place. It seems to me important that the Secretary of State's activities in this area should be closely controlled. They are certainly as dangerous to public liberty as any of his other activities specified elsewhere in the Bill. I do not see why these two clauses have been left out of the ambit, say, of the interception and communications commissioner.
§ Lord Bassam of Brighton
Perhaps I may deal, first, with the noble Lord's second point. I take note of what he said. I shall reflect upon why that is the case and find out the answer. I am sure the noble Lord will understand that that is not a question to which I can immediately respond. As regards the noble Lord's point on Clause 21(7), my understanding is that this provision rules out such interference. I trust that that will assist him. As I said, I shall certainly reflect on the noble Lord's second point.
§ Lord Cope of Berkeley
The Minister started by saying that the Government had been listening. If that 30 is the case, the way that the volume of criticism of the Bill generally, including this provision, has been growing strongly in recent weeks seems to me to be remarkable. I pointed out to noble Lords only recently that interest in this Bill a few weeks ago was mainly, though not entirely, confined to the e-community; that is to say, those who felt themselves directly affected. However, a striking part of the events of recent weeks has been the way that that concern has stretched way outside the e-community to encompass a much larger section of industry, commerce and finance.
The next important comment that the Minister made was that the Internet service providers to whom he has been talking had been asking for voluntary arrangements rather than statutory arrangements along the lines suggested by this series of amendments. I do not doubt that the noble Lord correctly represented the discussions that have taken place. It is obvious that service providers and their organisations would in the first instance be looking for voluntary arrangements for a voluntary advisory board. However, I do not believe that they would necessarily be satisfied with that as time went on.
We all know what can happen with voluntary advisory boards; indeed, there are vast numbers of them in government advising the Government on all sorts of matters and many of them have very little authority. They are rather like people standing outside the windows of the Home Office shouting at the building: sometimes the windows are open and what they say appears to go in but sometimes it simply bounces back. In a matter of such importance—we all agree that this is of high importance—I do not have much confidence that voluntary arrangements of this kind would be satisfactory in the long run, given the speed of developments that applies to this sector. Therefore, a statutory board of the character suggested is much more desirable.
Amendment No. 50 is the "proportionality" amendment, if I may so describe it. The Minister seems to think that it would be impossible for the Home Office requirements under the clause to lead to black boxes being fitted. He finds it impossible to believe that such requirements could possibly be out of proportion to what they are intended to achieve. That is obviously wrong. The requirements for black boxes are quite capable of putting British ISPs out of business entirely, or almost entirely, by comparison with their foreign competitors. That would certainly be out of proportion. I do not suggest that that is what would happen, but the row would be enormous and the Government would have to back off at that stage. Therefore, it would be much better for them to do so now. It worries me that the Minister should think that there is nothing that the Home Office could do that would be out of proportion to this need.
There has been some discussion throughout the debate about adding representatives of the public to the board—a point made by the noble Lord, Lord Desai. I sympathise a little with the Government on that point. Clause 12 concerns technical aspects. The Home Office representatives on the board, and the Home Secretary in considering whatever the board 31 says, will need to keep that in mind. I envisage the discussions being highly technical on methods to be used and what they would achieve. This is a technical clause, as the Minister said.
§ 4.30 p.m.
§ Lord McNally
We on these Benches responded favourably to the suggestion of the noble Lord, Lord Desai. Members of the public and members of civil liberties groups have considerable technical knowledge. There is another dimension of concern, as it were. The use of this technical knowledge by some in private industry is causing concern. I refer to spying on employees and so on. It might be reassuring therefore to have an element of lay membership, as it were, on the body as well as government and industry.
§ Lord Cope of Berkeley
I accept that. Provided that such a process did not disturb the technical nature of the board's deliberations, I do not think that it detracts from the idea behind the amendments.
§ Lord Desai
When I hear that experts and government will come together to look after my interests I become slightly suspicious. I should like to have one lay representative, as it were, looking after my interests, no matter how technical the subject matter. That is exactly how these situations arise. Someone says, "This matter is too technical for citizens. They should not be involved". However, I want one such representative.
§ Lord Cope of Berkeley
As usual, the noble Lord is persuasive. We all react in the same way as regards experts controlling aspects of our lives. However, he also betrays his distrust of the Home Secretary who has the ultimate word on this matter.
§ Lord Lawson of Blaby
I am grateful to my noble friend for giving way. This whole matter confuses me considerably, not least the position of the Liberal Democrats who say that they totally support the introduction of this board and that is why they will vote against it!
At a later stage we shall discuss much more important elements of this worrying Bill. On the one hand there are people interested in civil liberties such as the noble Lord, Lord Desai, and, I should have thought, noble Lords on all sides of the Chamber. There is a real civil liberties problem inherent in the Bill. Then there is the business case which is concerned about business costs. There is also an intermediate case. The businesses with which I am associated are concerned not merely with costs but also with commercial confidentiality. That is another important dimension. Therefore there are these two quite separate camps with their own totally valid concerns. But there is a third concern that, as it were, bridges the two.
§ Lord Cope of Berkeley
I agree with my noble friend on that point. If I am asked to give my credit card 32 number over the Internet to purchase something, that still slightly worries me. I do it because it is convenient. However, in doing so, one places immense trust in apparatus which one has little knowledge of. There is a link between the concerns of the civil liberties groups on the one hand and those of bankers, traders and commercial people on the other.
I cannot say that I am pleased with the Minister's response as he poured much cold water over, and resisted, the amendments. I believe that they are worth further consideration. We shall certainly give them further consideration even if the Government do not wish to do so. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 49A to 53A not moved.]
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.