House of Lords, Report Stage, Regulation of Investigatory Powers Bill, Wednesday 12 Jul 2000
Discussions related to Part III, INVESTIGATION OF ELECTRONIC DATA PROTECTED BY ENCRYPTION ETC
-----NOT Completed yet, will continue on 13 July, 2000.-----
Provided by Cyber-Rights & Cyber-Liberties (UK) - http://www.cyber-rights.org
Lord Phillips of Sudbury moved Amendment No. 43A:
Page 52, line 24, leave out ("likely to be of value for purposes connected with") and insert ("necessary and of substantial importance for").
The noble Lord said: My Lords, Amendment No. 43A deals with the four conditions which must be satisfied if any person with the appropriate permission under the clause is to impose a disclosure requirement in respect of protected information. Therefore, this is very important. Clause 47, which prescribes how notices requiring disclosure are to be formulated, is central to the Bill. We on these Benches believe that the four conditions impose sensible requirements. One is that the person on whom the disclosure requirement is to be imposed is in possession of the protected information. The second condition is that the imposition of that requirement is proportionate. The third requirement is that it is not reasonably practicable to get the information otherwise.
The last condition, which is where the amendment comes in, is that the imposition of the disclosure requirement in respect of protected information is necessary on the grounds specified in subsection (3)--that it is in the interests of national security, that it is for the purpose of preventing or detecting crime or that it is in the interests of the economic well-being of the UK--or is,
"likely to be of value for purposes connected with the exercise or performance by any public authority of any statutory power or statutory duty".
That is such an open, vapid and weak requirement--it is also an alternative to the interests of national security, crime detection and the UK's economic well-being--that it blasts a considerable
12 Jul 2000 : Column 350
hole in the proper protection which citizens should have against a disclosure requirement, which is a very serious step, being placed upon them.
This amendment changes the wording of subsection (2)(b)(ii) so that it reads:
"necessary"--
that reflects subsection (1)--
"and of substantial importance for the exercise or performance of any public authority of any statutory power or statutory duty".
We believe that that sensible, minimal provision should be satisfied before these substantial powers are exercisable. I beg to move.
Lord Bassam of Brighton: My Lords, I am aware that the provision in Clause 47(2)(b)(ii) has caused concern. I stress that this is not the open door to allow access to keys as some have painted it. Encrypted data may conceivably be encountered in a number of circumstances by a wide range of public authorities other than simply the UK's law enforcement, security and intelligence agencies which have statutory powers to seize or require disclosure of information.
Our objective is to seek to maintain as best we can the effectiveness of all statutory powers and functions in the face of technological advancement. These are powers that Parliament has considered are necessary. Merely because advancements in technology now make it possible for data to be protected in some extra technical way through the use of strong encryption ought not of itself to undermine the effectiveness of these powers. That is the essential position.
That said, the amendment indicates a view that the current test in Clause 47(2)(b)(ii) is too low. We are prepared to look at this again and produce something a little stronger. We do not believe that the exact wording proposed by the noble Lord quite works. But I undertake to take this matter away and propose alternative wording in time for Third Reading. I am sure that the noble Lord will see fit to withdraw his amendment in those circumstances.
Lord Phillips of Sudbury: My Lords, the noble Lord does indeed see fit to withdraw his amendment and looks forward to the wording proposed.
Amendment, by leave, withdrawn.
Clause 47 [Notices requiring disclosure]:
Lord Phillips of Sudbury moved Amendment No. 44:
Page 52, line 45, at end insert--
("( ) must provide arrangements for the protected
information to be delivered to the recipient in the event that--
(i) it is not already in his possession, or
(ii) it is only likely to come into the possession of any person
or service in accordance with some paragraph of subsection
(1);").
The noble Lord said: My Lords, this is not an easy clause in the Bill. The amendment addresses a situation where the recipient of a Section 47 disclosure
12 Jul 2000 : Column 351
notice cannot comply with it because he does not have the protected information that he is supposed to decrypt or put into plain text. Perhaps I may make it easier to understand by giving a scenario.
Let us say that Steve sends an encrypted message to Willie and he decrypts it. He reads it and notes its contents. He does not keep it perhaps because it contains information which is too sensitive to keep. Two days later a legally entitled entity who has intercepted the message comes to Willie with a Section 47 notice and requests to be provided with the plain text. Willie cannot comply, however willing. He says, "Supply me with a copy of the protected information and I shall be happy to oblige". If, for whatever reason, the legally entitled authority does not then supply the protected information, poor Willie is in a serious situation, which we would not want. This innocent amendment is designed to put Willie in the clear in these unhappy circumstances. I beg to move.
Lord Cope of Berkeley: My Lords, this problem was also pointed out to me. It is important that we have a response to it and preferably that we put the Bill right.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord for being so concerned about communications between Steve and Willie. I shall do my best. As I understand it, this amendment seeks to plug what seems to be a flaw in the current construction of Clause 48. The proposed change would mean that in all cases where the recipient of the notice does not have the relevant protected information in his or her possession the person with permission to serve a Section 47 notice would be required to provide that information in its entirety to the recipient of the notice to allow him or her to decrypt it or to disclose any key of their choosing that does decode it.
We cannot accept this amendment. The Bill recognises that there may be cases where the recipient of a notice does not have the relevant protected information in their possession but has a relevant key. In such cases it may well be that providing the relevant protected information to a person will be sensible and practical in certain circumstances. We can see that.
Clause 48(1)(a) makes it clear that there will be no statutory bar to giving him or her access to the information. But there may be other cases where it might not be right to do that; for example, where notices are to be served on persons themselves suspected of criminality. We do not believe it right that in all cases they, too, should be supplied with the relevant protected information.
We must also consider the question of an individual's right to privacy. We hear much talk about that in connection with Part III. We can envisage problems if there is a blanket requirement to disclose one person's information to another who might, for example, never have seen it; nor was it meant for him. We do not think that it would be right in all cases for those people to be able to see another person's information.
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The argument is starkest in cases involving interception. The amendment would be in conflict with the principle underlying Clause 14, which we think rightly imposes strict limits on who can see intercepted material. We think that the privacy argument prevails.
This is difficult. We do not believe it appropriate to put a blanket provision on the face of the Bill to say that a person serving a notice must in all cases provide the recipient of a notice with all the protected information where he himself does not possess it. That would be the effect of the noble Lord's amendment.
There will be cases where that is appropriate but others where it is not. It seems to us that this is a matter sensibly dealt with in the code of practice. I appreciate that the initial draft code does not cover this but we shall consider the noble Lord's comments on this point--they are relevant and no doubt we shall receive communications from other interested parties on the subject--in fleshing out the details of the code. I trust that, with that undertaking, the noble Lord will feel able to withdraw the amendment.
Lord Phillips of Sudbury: My Lords, I am grateful to the Minister for the reply. It merely illustrates the twists and turns which dog every part of the Bill. I should be happy to think that there were satisfactory provisions in the relevant code of practice.
Perhaps the Minister will assure me that in the scenario I suggested Willie could not find himself on the wrong side of the law because such a provision is not in the Bill. I do not expect that assurance today. However, there could be a category of cases where severe injustice could be done.
Lord Bassam of Brighton: My Lords, I am prepared to consider the point further. If we cannot put a provision on the face of the Bill--I do not think that we would be in that territory--it is an issue which can be addressed in the code of practice. If the noble Lord has a drafting suggestion, we shall consider it closely.
Lord Phillips of Sudbury: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Northesk moved Amendment No. 45:
Page 53, line 7, leave out first ("the") and insert ("a reasonable").
The noble Earl said: My Lords, this is an exceedingly modest amendment. I am conscious that my noble friend Lord Cope suggested earlier that I have a tendency to underestimate the effect of such amendments. The amendment seeks to impose a reasonable test on this contentious and significant part of the Bill. The hour is late; we have tomorrow to come. Therefore, I beg to move.
Viscount Astor: My Lords, as my noble friend said, Clause 47 is a difficult and controversial part of the Bill. It is a reasonable amendment. The Government must either accept the amendment or explain why they
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regard it as unnecessary. The Bill provides that a notice imposing a disclosure "must specify the time". There is no reference to a reasonable period of time unless the issue is addressed in a code of practice that I have missed. I shall listen with interest to the Minister's response.
Lord Bassam of Brighton: My Lords, the noble Earl did himself an injustice by saying that his amendment was modest. It is a most helpful amendment. It appears to stem from a fear of unreasonable demands in respect of the time by which persons may be required to comply with Section 47 notices.
We discussed the matter in Committee, when I set out reasons why I did not believe that that would be the case. However, I am willing to accept the noble Earl's amendment in principle. We do not believe that the drafting is quite right and if he can accept that point I happily give an undertaking to come back at Third Reading with something that does the job. We need to consider the words in order to ensure that they are fit for the purpose and I hope that the noble Earl will feel able to withdraw his amendment.
The Earl of Northesk: My Lords, I gained the impression that I was quite close--wonders will never cease! I am entirely happy with the Minister's response and beg leave to withdraw the amendment. I look forward to the Minister resolving the issue in his own terms.
Amendment, by leave, withdrawn.
Lord Bach moved Amendment No. 46:
Page 53, line 9, leave out from ("made") to end of line 11.
The noble Lord said: My Lords, this limiting amendment would delete the provision permitting a Section 47 notice to be given,
"in such form as the person giving it thinks fit".
It is a simple change and one which we hope will be welcome. It was prompted by similar amendments tabled in Committee by the noble Lord, Lord McNally, and the noble Earl, Lord Northesk, to which we have given further consideration.
The fear was that the present provision contained in Clause 47(4)(h) would somehow be misused, allowing notices to be served in whatever form a particular authority saw fit to use. I believe that those fears are very much unfounded. We have said all along that there needs to be consistency in the form of notices for the sake of the authority serving them and of those receiving them. But by way of offering comfort, we are proposing here to delete Clause 47(4)(h) from the Bill. Guidance on notices will be given in the code of practice. We need to consult on the form of a notice to achieve best practice. We have set out an idea of what a notice might look like in the initial draft code of practice on which we will welcome and require comments from all interested parties. I beg to move.
The Earl of Northesk: My Lords, as a matter of courtesy, I rise to thank the Minister for the Government's response.
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On Question, amendment agreed to.
Lord Lucas moved Amendment No. 47:
Page 53, line 16, leave out ("the") and insert ("an").
The noble Lord said: My Lords, I have never yet succeeded in arguing grammar with the parliamentary draftsmen. I doubt that I shall succeed on this occasion but I beg to move.
Lord Bach: My Lords, the noble Lord says that he has never succeeded in arguing with the parliamentary draftsmen. Tonight is a first; he has succeeded beyond his wildest dreams. We spoke earlier of lawyers and closet lawyers and the incredible care with which the noble Lord has examined the Bill has paid off. We believe that he is right and we are happy to accept his amendment. We are always pleased to hear the noble Lord's drafting suggestions--perhaps not always so late at night--and on this occasion we are happy to accept his amendment.
Lord Lucas: My Lords, I have a small confession to make. The idea was not mine but that of a gentleman called Charles Lindsey from Manchester University. Clearly, academia is working at full speed on the Bill and I am delighted.
Lord Bach: My Lords, the noble Lord has just spoilt it all!
On Question, amendment agreed to.
Lord Phillips of Sudbury moved Amendment No. 48:
Page 53, line 44, at end insert--
("( ) A notice shall not be considered necessary on the
ground falling within subsection (3)(c) unless the information
protected by the key which is sought to be disclosed is
information relating to the acts or intentions of persons outside
the British Islands.").
The noble Lord said: My Lords, the amendment is ill-placed and would better sit under subsection (3). However, its object is simple enough. It attempts to bring the rationale which underlies Section 47 notices into line with that which prevails for interception warrants with which we believe Section 47 notices should be compared as regards civil libertarian and privacy aspects. That is the point of bringing in the reference to,
"relating to the acts or intentions of persons outside the British Islands",
or, as it may be better to say, the United Kingdom. I beg to move.
Lord Bassam of Brighton: My Lords, I believe that the concerns which lie behind the amendment are unfounded. The limitation suggested is already present via other existing statutes. It is unnecessary because the underlying powers of the relevant agencies which may lawfully obtain material in the interests of the economic well-being of the UK are constrained by existing statutes which confine the agencies' functions to certain activities only. That is important and has been missed by a number of commentators outside your Lordships' House.
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Section 47 notices authorised as being necessary in the interests of the economic well-being of the United Kingdom under Clause 47(3)(c) must be related to the acts or intentions of persons outside the British Islands. The reason is that the powers and functions of the relevant agencies are constrained by statute--in this case, the Intelligence Services Act 1994.
For example, the statutory function of the Secret Intelligence Service which may be exercisable in the interests of the economic well-being of the United Kingdom under Section 1(2)(b) of the ISA is constrained by Section 1(1)(a) of that Act only to where this relates to,
"the actions or intentions of persons outside the British Islands".
The statutory functions of GCHQ are similarly constrained by Section 3(2)(b) of the ISA, which also limits the economic well-being function to,
"actions or intentions of persons outside the British Islands".
The corresponding function of the Security Service is to safeguard the economic well-being of the United Kingdom against threats posed by the actions or intentions of persons outside the British Islands. That is by virtue of Section 1(3) of the Security Service Act 1989.
Section 5(2)(a) of the ISA explains that the Secretary of State may authorise a warrant only where it is necessary in carrying out the functions of the agencies, those functions being constrained as I have just described. As regards economic well-being, that must relate to the actions or intentions of persons outside the United Kingdom. It is unlawful for the agencies to act outside their statutory functions as described in the ISA.
The important point to reiterate is that the power to serve a decryption notice is simply ancillary to existing, limited powers. Therefore, to a large extent the restriction which noble Lords seek is already there, attached to the relevant underlying statutory power.
Clause 47(3)(c) is worded,
"in the interests of the economic well-being of the United Kingdom",
because we must cater for the circumstances where, for example, protected material is lawfully obtained under a warrant granted under Section 5 of the Intelligence Services Act. Such a warrant may be granted,
"in the interests of the economic well-being of the United Kingdom".
Parliament has already provided for that power. Therefore, it is right that the disclosure power in Part III of the Bill can cover it. However, as I explained, that is constrained by underlying statutes to situations where our economic well-being is affected by the actions or intentions of persons outside the UK.
I trust that that explanation will enable the noble Lord to withdraw his amendment.
Lord Phillips of Sudbury: My Lords, I am grateful for that full explanation. I believe that it is a pity that in a Bill of this nature that cannot be put on the face of the Bill rather than leaving the poor reader of the statute to chase around among a hoard of other Acts.
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I do not see why, as a matter of practical draftsmanship and utility of the measure, that should not appear here.
My second point is: what would be the situation if the intelligence agencies came into possession of protected information other than by a statutory power? Could not the Secretary of State for Trade and Industry authorise a decryption notice in the interests of economic well-being, thus escaping the defences mentioned by the Minister? I do not expect him to answer that point at five past 11 on a Wednesday night, but I ask him to dwell on the first practical issue and perhaps review his opinion before Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas moved Amendment No. 49:
Page 53, line 44, at end insert--
("( ) A notice under this section shall not require the
disclosure of any key where an application under the Police and
Criminal Evidence Act 1984 may be used to require the production
of data in a legible and usable form.").
The noble Lord said: My Lords, we have all received e-mails with attachments that turn out to be unreadable because they have been written in a program that we do not have or that our word processor will not read. As the Bill is written, such data are considered to be encrypted, because they cannot be read as plain text. A document is practically encrypted if the receiver cannot read it or make sense of it--and a right pain it is to receive it.
The police have the power under the Police and Criminal Evidence Act 1984 to require that the information be put into a form in which they can read it. The Bill addresses that problem in a different way, by requiring me, against all the copyright agreements that I have presumably entered into with Microsoft, to provide the police with a copy of whichever version of Word I have used to write the document that is unintelligible to them. PACE is a better way of dealing with encryption caused by commercial programs storing data in their own format. The amendment is a suggestion, but I shall be happy to accept that there are better ways of doing it. I beg to move.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord, Lord Lucas. He has touched on an issue that we had considered. We looked carefully at whether PACE might be sufficient to do the job, but we do not believe that it is. It is interesting that we were working in the same direction.
PACE was enacted before the growth of the Internet as a mass communications medium and the wider availability of strong encryption. PACE does not do what the authorities need on protected information. The important point is contained in Section 20 of PACE, which the noble Lord hints at in the amendment. It requires computerised material to be produced in a visible and legible form that can be taken away. The important question is whether that also means that the information should be comprehensible. We believe that there is doubt about that. The issue has already caused problems for the police.
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There is no explicit power in UK law to require someone to disclose protected information in an intelligible form; neither is there a clear power to require the disclosure of an encryption key. We are trying to remedy that with Part III. Tweaking PACE would not do that.
We recognise that any number of other statutory powers and functions may potentially be undermined by the rising use of encryption technology by criminals. That is why we have opted for a self-standing disclosure power to be properly authorised that contains its own safeguards.
If the relevant PACE provisions were sufficient, I assure your Lordships that we would not be legislating in Part III. It is because they are not that I invite the noble Lord to withdraw his amendment.
Lord Lucas: My Lords, I am grateful to the Minister for that reply. I hope that he will be able to tell me, in correspondence or otherwise, how I get round the fact that I am not authorised to provide anybody with a copy of a commercial program. I shall get into all sorts of trouble if I start copying Microsoft Word to provide it to other people. That is effectively what I should have to do if the police required me to produce the key because the program itself is the key.
All I need is some comfort that I am protected from any consequences from the author of the program for providing the police or whoever with a copy of it so that they can use it on the files which they need to understand. But I do not need an answer now and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Phillips of Sudbury moved Amendment No. 50:
Page 53, line 46, leave out from beginning to end of line 1 on page 54 and insert ("where--
(a) it is intended to be used for the purpose only of generating
electronic signatures and has not in fact been used for any other
purpose; or
(b) the protected information to which that key relates is itself
a further key whose disclosure could not be required by virtue of
this subsection.").
The noble Lord said: My Lords, this amendment is to protect signature keys. We believe that the Bill as drafted inadvertently creates a problem. Signature keys are normally numbers with special mathematical properties which are thousands of digits long. That is intended to prevent any possibility of being penetrated. In turn, that means that no one can remember his signature key numbers and thus a simple memorable pass phrase is needed in order to obtain access to the real signature key.
This matter is beyond my ken but we have informed about it by those assisting us--Caspar Bowden in particular. The problem is that under the Bill as drafted the encrypted private signature-only key is itself protected information. That is under Clause 54(1) and (4). However, if that were to come into the possession of an officer--for example, by
12 Jul 2000 : Column 358
seizure of a computer--the officer may by notice under Clause 47(9)(a) demand the owner's pass phrase, notwithstanding that he would then hold the owner's signature-only key.
The officer would not be in breach of Clause 47(9)(a) in asking for that and he is asking for the pass phrase which is undoubtedly an encryption key and for which he is thus entitled to ask. So the purpose of this wording is to close that loophole. I beg to move.
Lord Lucas: My Lords, perhaps I may point out an oddity in the groupings list. We are now discussing Amendment No. 50 which should be grouped with Amendment No. 52 and then Amendments Nos. 51 and 53 go together. The noble Lord, Lord Phillips, has not spoken to Amendments Nos. 51 and 53, which go together conveniently as the next grouping because they deal with the word "recently". Amendments Nos. 50 and 52 deal with the problem of how keys are held by people and they go together.
I entirely support what the noble Lord, Lord Phillips, said. Nobody keeps his private key in his head or anywhere. It is a long succession of digits or symbols, 128 of them, and they are not memorable. They are protected with a pass phrase. So people will carry around their digital signature in their head as a pass phrase. But, as the Bill is written at the moment, that pass phrase can be demanded and received by the police, even though it only protects one's digital signature to which the police have no right. As the noble Lord, Lord Phillips, said, Caspar Bowden has spotted a technical but important error which should be put right, if not by this amendment then by something similar.
Lord Cope of Berkeley: My Lords, I agree with noble Lords who have spoken. This is something which needs to be put right. We are given a choice of drafting here. I express a preference for my noble friend's drafting, not merely on grounds of friendship.
Lord Phillips of Sudbury: My Lords, I should have dealt with Amendments Nos. 51 and 53. There is no pride at this hour of night and if the drafting of the noble Lord, Lord Lucas, appeals to the Government, I do not care so long as the problem is resolved. Amendments Nos. 51 and 53 are designed to ensure the protection of subsection (9), which states that a notice,
"shall not require the disclosure of any key which ...
(b) has not in fact been used for any other purpose".
The insertion of the word "recently" seems sensible and reasonable. Amendment No. 53 simply defines what "recently" means.
Lord Bassam of Brighton: My Lords, I shall deal with Amendments Nos. 50, 51, 52 and 53. In Committee there was discussion of electronic signature keys and I said then, as I say now, that we recognise the importance of maintaining the security
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of electronic signature keys. The whole point about electronic signatures is to ensure the integrity and authenticity of data, but the reality of the technology is that it is possible for signature keys to be used for confidentiality purposes to protect or to encrypt the content of data or messages. After all, Part III of the Bill is all about that.
Where keys have been used for both purposes, it seems right that the Bill should provide for power to require disclosure in certain circumstances. That is the reality of the technology. As before, your Lordships' amendment recognises that in paragraph (a) of Amendment No. 50. If paragraph (b) is intended to allay the fear of cases where persons may have stored their electronic signature on their computer and, to protect it, encrypted it with a password or passphrase, the rationale is that that becomes protected information which, if the computer is seized, a law enforcement officer could demand to be disclosed under the Part III powers.
I see what this tries to achieve, but I do not believe that it is necessary. I recognise the concern and I shall try to address it. First, law enforcement will be able to serve a notice only if the tests in Clause 47 are met. Trying to obtain a key by describing it as protected information would have to be necessary. I cannot predict all future circumstances in which keys may be sought but those tests look pretty high in the example that we are discussing here.
Secondly, we are interested to ensure that these provisions are not abused or avoided by practitioners. For the record, if law enforcement officers want to gain access to decrypted information, they should do so by following the procedure set out in the Bill. They should not do so by treating the key as protected information. I am grateful to noble Lords who have raised this issue. We shall address it as a matter of good practice in the code of practice. There is a similar concern in Part II where it would theoretically be possible for someone to achieve what amounts to telephone interception by planting a bug and avoiding Part I of the Bill. Already the code of practice under the Police Act 1997 effectively prevents that and we shall repeat the inhibition in our code under Part III of this piece of legislation. What I have said probably covers Amendment No. 52, referred to by the noble Lord, Lord Lucas.
Turning to Amendments Nos. 51 and 53, they seek to insert a cut-off point for access to keys used for both electronic signature and confidentiality purposes. I understand the concern about it being asked for keys to be disclosed that were last used for confidentiality purposes some time ago. I understand what these amendments seek to achieve, but we believe that they would cause difficulties.
It is important to remember that permission for Section 47 notices to be served may be given only in respect of information that has been or is likely to be obtained under some lawful authority. The combined effect of Amendments Nos. 51 and 53 causes a difficulty. Suppose permission to serve a Section 47 notice is given, following only a week-long
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investigation, and although there are not sufficient grounds to justify it, protected information is lawfully seized, including material last encrypted with a key, say, some six months ago, are we saying that that key should not come under the ambit of the Part III power? Under the terms of this amendment, that would be damaging. There are difficulties in setting down timescales as envisaged by the amendments.
Indeed, general difficulties have been raised by noble Lords. Many are thrown up by the nature of the technology itself, ever-evolving as it does. We tried to provide protection against the set of keys used only for electronic signature purposes in Clause 49, and it is right that we do so. Safeguards are in place, but the reality is that the Bill needs to cater for occasions when signature keys are also being used for confidentiality purposes. That, too, we believe to be right in the circumstances.
I accept that that is a lengthy explanation. But I hope it helps the noble Lord to feel able to withdraw his amendment.
Lord Phillips of Sudbury: My Lords, I listened to the Minister's explanation with less than a perfect understanding of all its working parts. I shall look at Hansard carefully. It may be that I shall have to come back to this later. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 51 not moved.]
Lord Lucas had given notice of his intention to move Amendment No. 52:
Page 54, line 1, at end insert ("; and
(c) protects only a further key the disclosure of which could not be required by virtue of this subsection").
The noble Lord said: My Lords, most of what I wanted to say in relation to Amendment No. 52 was covered by the Minister. I merely wish to record, for purposes to which we shall come tomorrow rather than today, that on this basis most of the people in the world--there are a large number of them--using PGP or similar signature systems, will find those signatures open under this Bill because they are used as dual-purpose keys. That is widespread in that and other signature systems. So when we are looking at separating signatures from other keys, we are not doing it to any great extent as regards the ordinary use of current commercial systems by ordinary people. We probably are when we come to commercial organisations, but not for individual people.
[Amendment No. 52 not moved.]
[Amendment No. 53 not moved.]
Lord Cope of Berkeley moved Amendment No. 54:
Page 54, line 1, at end insert--
("( ) A notice under this section shall not confer any right
to production of, or access to, items subject to legal
privilege.").
The noble Lord said: My Lords, Amendment No. 54 is another amendment attempting to preserve legal privilege. This one was suggested to me as being
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necessary by the Law Society of Scotland and the Law Society of England and Wales as well. Judging by what happened earlier when I moved a similar amendment on behalf of the Bar Council, I shall be told it is all covered by common law. There appear to be quite a lot of lawyers on my side of this particular argument, but I accept that there appear also to be some on the government side. I beg to move.
Lord Bach: My Lords, the noble Lord, Lord Cope, as so often, is absolutely right; the magic phrase "common law" will be used to answer this particular amendment as it was used, what now seems many hours ago, earlier this evening.
We discussed the question of legally privileged material in the context of our discussion of interception under Part I of the Bill. This Bill does not rewrite the rules of evidence. If something is inadmissible because it is legally privileged, that remains the case under the Bill. That is true for all parts of the Bill.
Of course, there is the separate question of whether legally privileged material should be looked at under any part of the Bill. That is something we intend to look at under the draft statutory codes of practice and have already asked for comments on what the code should say. As regards Part III, it is important to stress that the disclosure power does not undermine safeguards in existing legislation restricting access to legally privileged material. So where, for example, such material is protected by provisions in PACE, the powers in Part III cannot be used to circumvent those safeguards since the authorities will not be permitted access to protected material which is subject to legal privilege. Where there are already safeguards in place in the underlying powers, they are not weakened by the Bill.
Then there is the question of material that turns out on decryption to be legally privileged. We deal with this in the codes. Again, I should point out that these are only preliminary drafts. If material is revealed to be protected in law so that the underlying power would not allow access to it, that material should not become available to law enforcement. I hope that that reassures the noble Lord.
Lord Cope of Berkeley: My Lords, indeed it does. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley moved Amendment No. 54A:
Page 54, line 7, at end insert-
("( ) Notwithstanding the generality of this section, for
the purpose of requiring any person to provide assistance in
relation to a notice issued under this section the person to whom
it is addressed may
(a) serve a copy of the notice on such persons as he considers
may be able to provide such assistance; or
(b) make arrangements under which a copy of it is to be or may be
so served.")
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The noble Lord said: My Lords, perhaps I may, first, apologise to the House for the fact that this is a manuscript amendment that we are slipping in here for a brief discussion. I received a letter this morning from the Post Office which raises the following point, and it seemed to me to be important to place it before your Lordships.
As I am sure that many of your Lordships know, the Post Office has nowadays a ViaCode service, which is the UK's first secure electronic commerce service and was launched by the Royal Mail last year. It therefore expects to be in a position of having to respond to notices under Part III of the Bill. Under Clause 47, the notices would normally be served on a member of the board of directors, but there are no provisions for passing on the notice to others to enable compliance. There are such provisions under Part I but not in this part of the Bill.
If the notice contains, as it presumably will, a non-disclosure provision, the director may find himself in the dilemma of facing penalties either for failing to comply or for failing to keep the notice secret if he is not in a personal position to be able to comply with the notice. It seems to me and to the Post Office that if all reasonable efforts have been made to deal with such a notice--and, where appropriate, to keep it secret within the organisation--the director should not be faced with this particular Morton's Fork. The punishment for the offence can be imprisonment. To be imprisoned either way round seems to be a peculiar difficulty in which we might place directors, not just of the Post Office but also of many other companies. I believe that the Post Office has a good point. I beg to move.
Lord Bach: My Lords, we understand the intent of the amendment and know that there is continuing concern about the extent to which a tipping-off will come into play. Indeed, we shall address that matter in a little more detail in tomorrow's proceedings. We believe that this amendment stems from the draft codes of practice, as published on Monday. The preliminary draft code recognises at paragraph 6.9 on page 16 that a senior person in an organisation served with a notice may need assistance, either technical or otherwise, from within that organisation, or another, in order to comply with the terms of the notice.
The code goes on to say that those serving the notice should be aware of that fact and, in so far as is practicable, should ascertain in advance to whom it is "reasonable" to permit a disclosure to be made. We should always bear in mind that this issue comes into prominence only once the conditions for the imposition of a secrecy requirement have been met. The conditions, which are considerable, are set out in Clause 52.
Once a secrecy requirement has been imposed, the person serving the notice and the requirement must take reasonable steps to ascertain to whom disclosure could be made in order to give effect to the notice. The code states that these details should be noted on the relevant disclosure notice for the avoidance of any doubt. These are significant matters, which we have
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sought to address in the preliminary draft code. We shall, of course, be willing to address them further and more specifically, if that is what we are advised to do between now and the time that the codes are brought back for affirmative resolution by Parliament.
At this stage we resist the notion that the recipient of the notice may himself determine without any reference to the person who served the notice who it will be reasonable for him to copy the notice on to. The imposition of a secrecy requirement will not be a trivial matter. Certain significant thresholds will have to be met. In the event that these thresholds are met, it will be important to keep an element of control over onward disclosure of these notices. It will be perfectly possible for the recipient of the notice to come back to the person who served it upon him to clarify that he can disclose the matter further to effect the notice. That is provided for in Clause 52(9).
However, we cannot go that one step further to permit the person who is in receipt of a notice to take it into his own hands to organise disclosure. That would
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seem to eat away at the very heart of the secrecy requirement. I hope that noble Lords appreciate the importance of the secrecy requirement in certain instances. I invite the noble Lord to withdraw the amendment.
Lord Cope of Berkeley: My Lords, I certainly appreciate the importance of the secrecy requirement. I shall ponder that instructive reply. I hope that I shall have the opportunity to ponder it before we reach the later amendments to which the noble Lord referred. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bach: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly and, on Question, Motion agreed to.
House adjourned at twenty-nine minutes before midnight.