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The following document has been copied from http://www.publications.parliament.uk/pa/cm199900/cmstand/f/st000314/am/00314s01.htm forwider dissemination in relation to the debates related to the progress of the Regulation of Investigatory Powers Bill through the Parliament.
Session 1999-2000
Standing Committee Debates
Regulation of Investigatory Powers Bill
(Morning)
[Mr. Edward O’Hara in the Chair]
Regulation of Investigatory Powers Bill
10.30 am
The Minister of State, Home Office (Mr. Charles Clarke): I beg to move, That, during proceedings on the Regulation of Investigatory Powers Bill, the Committee do meet on Tuesdays at half-past Ten o’clock and at half-past Four o’clock and on Thursdays at Nine o’clock and at half-past Two o’clock.
Mr. O’Hara, I shall begin by welcoming you and your colleague, Mrs Michie, to the Chair. I am delighted to be serving under your chairmanship and I look forward to taking part in a Committee that will reflect the great tradition of discussion in the House. The sittings motion proposes that we meet on Tuesdays and Thursdays, in the morning and afternoon.
Mr. Oliver Heald (North-East Hertfordshire): May I join in welcoming you and Mrs Michie to the Chair, Mr. O’Hara? I have sat in Committee under your chairmanship before and I know that you will keep us in good order, as will Mrs Michie. The Minister has moved a sittings motion that has a familiar look to it. However, I should like to bring to the Committee’s attention various points that may have a bearing on the timing and length of our sittings. The Opposition do not oppose the principle of the Bill, but, as my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) made clear on Second Reading, we wish to raise certain issues in Committee. Perhaps the Minister will give us an idea today as to his attitude to some of those issues, so that we may judge whether the sittings proposed in the motion are adequate. Our provisional view is that they will be. May I start by asking the Minister whether he has given any further thought to clause 6? The Opposition made the point on Second Reading that the list of persons who may apply for an interception warrant is completely open ended, because subsection (2)(k) allows anyone to be given permission to make such an application by order. Will the Minister agree to the provision in the Bill of a comprehensive list of persons who may apply for interception warrants? Will he also agree to adding the Department of Social Security to the list, because it deals with some of the most serious cases of fraud? Benefit fraud is, by value, the most serious offence of all. Far more money is taken through benefit fraud than through burglary. We would welcome an early response from the Minister as to whether he will seriously examine that issue. Clause 12 requires communications services providers to obtain an interception capability. The Minister could save the Committee some time if he were able to give us further information today relating to that provision. The Federation of the Electronics Industry has told me that it may be possible to provide an interception capability for the internet, but it does not know how to do so at present. A letter that I received from the federation outlines the problem well. Packet-switched traffic is the method by which internet traffic is sent; it is also described as internet protocol traffic. The letter states that
Packet switched traffic is built on the concept of breaking up data into smaller ``packets’’ and sending them independently to their destination. This makes the utilistation of networks much more efficient and is now regarded as the only practical way to send large amounts of data over busy networks. The Internet is built on this concept and uses IP for all traffic. It goes on to point out this technology is entirely different from the old form—circuit switched network traffic:
Since the data travels as packets, the interceptor has to be able to intercept only those packets relevant to his investigation. Secondly, and more importantly, once the traffic has got past the entry point to the network, the packets can travel along more than one route and therefore it may be impossible to intercept the whole ``conversation’’ or message.
The current state of the technology is such that some, and possibly all, manufacturers and suppliers of Internet routers and switches do not currently have the technical capability to intercept individual IP traffic streams within the Internet.
Individual traffic streams would need to be intercepted at the point of initiation The costs involved in adding special capabilities that are not required for their normal operation, and the provision of contracted services, to all edge routers is likely to have a major financial impact on the Internet community at large and Ebusiness in particular.
In a letter to The Times, today, Tom Wills-Sandford, the federation’s director of information and communications technology, says:
Whatever the eventual solutions might be, added cost and complexity are certainties. That must threaten the UK’s ambition to be the best place in the world to conduct electronic business, for the one abiding truth of the internet is that electronic business will go where it is easiest to operate.
BT, another respectable source, makes the same point. It says:
The mechanism for deciding what is a ``reasonable intercept capability’’ will be a key factor in ensuring the successful implementation of the Bill and avoiding putting the UK at a commercial disadvantage to the rest of the world. It says that at present that mechanism is subject to secondary legislation.
Can the Minister give us any information to show that it is technically feasible to intercept internet communications? If not, are we being asked to give him a blank cheque? Has he set experts to work to explore the options on the costs? If so, who are they and when will they report? If they are to report during the passage of the Bill, will he undertake to let us see the report? How does he intend to consult those affected by the technical obligations and steps referred to in clause 12? I have grave reservations about agreeing to impose those obligations on communications service providers, when we do not even know whether it will be technically possible to do so or what the cost will be.
The Minister makes the position worse by taking a power to make regulations on the obligations, and to do so under the negative procedure. The chance that the obligations will ever be debated as secondary legislation is tiny. We all know that, for every 2,000 regulations that go through the House on the negative procedure, only a couple of dozen are debated. Can the Minister give us any help on that? Another problem is that the Minister has not provided that clause 12 will be commenced with only when the science and the costs are known. Governments always say, ``You can trust us.’’ [ Interruption.] The Minister says that perhaps he will not say that, but he will no doubt say that, in this area, the Government have not previously imposed undue burdens on business. These powers would enable them to do so. If we are to know exactly how much time is needed for our sittings, we must know the facts at an early stage. The Minister will have seen amendments Nos. 18 and 19, which suggest that a technical approval board should review the requirements before they are placed on individual community services providers. I should be interested to know his view.
On Second Reading the costs of clause 12 on business were raised. If the Minister can give us more information on costs before we debate clause 13, that will save considerable time. I would be grateful if the Minister could provide a progress report on the costs for business before we debate clause 13.
We also have concerns about clause 21, which relates to a wide category of people who may be designated to request communications data, logs of traffic and so on. As hon. Members have said, software is available that performs data lining. Given sufficient data, the user can delve into all aspects of a person’s life. Friendship tree software can uncover all a person’s contacts and communications, which is an opportunity for great invasions of privacy. Will the Minister consider limiting the number of people, and holders of offices, who can request communications data? Will there be a mechanism to restrict such an operation to the most serious cases? Alternatively, is it envisaged that a local authority chasing council tax arrears could obtain massive quantities of communications data and pry into every aspect of a person’s life, simply to recover a small sum of money?
There is a technical concern about the clause. Currently, the technology necessary to recover the data requested may not be available to all providers. Will the Minister provide information on that? What is the state of the science? Will he explain what the costs are, and his approach to contributing to them? That might save the Committee time. On clauses 46 to 49, do the Government intend to table amendments to meet the points made in relation to the burden of proof? An individual is required to prove that he has an innocent explanation for not having his encryption key or not knowing where it is. It was established on Second Reading that some people genuinely lose or discard their keys, for perfectly sound reasons. Should the prosecution not prove default, instead of the defendant having to prove innocence?
Criminals might choose to accept the risk of prosecution under clause 49, instead of revealing incriminatory information of serious wrongdoing. Will the Minister consider what the new clause suggests in terms of allowing evidence of prior criminal wrongdoing, or other evidence found at the scene, to be introduced to highlight the intention of a criminal without damaging the position of an innocent individual? Does he have further thoughts on the defence of due diligence, which is contained in the new clause? Can the Minister save the Committee time by telling us his conclusions, or his latest thinking, on that set of clauses?
On the issue of unifying the commissioners and providing them with investigatory staff, does the Minister have further thoughts? Is he aware that the lastest technology allows a million million bits per second to flow through a glass fibre optic cable? That means huge quantites of information every second, and 100 Million e-mail communications every day. Some say that the age of interception is over, and crime fighters of the future will have to rely on sophisticated surveillance equipment. If that is the Government’s view, and if their measures are for reasons of propriety rather than crime fighting, should they not admit it now? An interception structure could be costly for industry, and might result in the excellent technology of split-packet transmission being ruined. If it is necessary to channel those communications through small gateways, the entire benefit of the efficiency of internet traffic could be lost.
10.45 am
Finally, civil liberties and human rights issues were raised on Second Reading, such as the breadth of the powers and the judicial or non-judicial nature of the person who should make the decision on whether interception or encryption requests are to be made. Has the Minister had an opportunity to consider the amendments that we have tabled and the thoughts expressed on Second Reading? Can he give us any clue as to his thinking on those issues, which might save us time?
The Opposition agree with the principle of the Bill, and the sittings motion appears to be of the normal kind. However, the Minister would assist the Committee’s consideration of the motion if he answered some of my questions—especially on clause 12, which is causing great concern to communications services providers.
Mr. Richard Allan (Sheffield, Hallam): I am pleased that you are in the Chair, Mr. O’Hara, and that Mrs Michie will share your task. The sittings motion seems perfectly acceptable, but I should like to raise a couple of small points. First, given that the Budget takes place next week, will the Committee sit on Tuesday afternoon? Secondly, do the Government intend the Committee to sit on Thursday afternoons? If the Minister will clarify those points, we will happily support the sittings motion.
Mr. Ian Taylor (Esher and Walton): I am delighted that you are chairing the Committee, Mr.O’Hara. My hon. Friend the Member for North-East Hertfordshire (Mr. Heald) raised some serious issues that will help us to judge whether the sittings motion is appropriate. I contributed to the debate on Second Reading, and do not intend to repeat the points that I made in that speech. However, they will be relevant as we give detailed consideration to the Bill. Has the Minister had time to look at the representations made by organisations such as the Alliance for Electronic Business and the Internet Services Providers Association, which have picked up on some of the technical matters to which I referred on Second Reading? Not least among those is the need for clarity in defining what is a public telephone network and what is a private telephone network, and where the two overlap. That is especially important given the way in which the telecommunications industry is driving forward intranets and internal company networks, and many people are unclear as to how they will be affected. My hon. Friend referred to cost structures, which are important, as are many of the technical matters that arise, especially in part III. Has the Minister considered the point made on Second Reading about clause 46 notices? The problem is often not so much that the person required to reveal information is guilty, but that he or she could be guilty if, for some reason, he or she fail to reveal the private key and have to be assessed as to whether they are behaving properly or reasonably. Those are important matters, as are the wider issues raised by the Foundation for Information Policy Research, to which we shall return in the course of the Committee’s deliberations. I should be pleased if the Minister could deal with them under the sittings motion. I know from previous experience that interception is difficult and, in this new technological age, it is handled very differently to how it was handled in the past. The Government must prove that the Bill is a correct and sensible way forward, which will underpin the new networks and not cause a loss of confidence. Encryption is vital to the performance of the new networked economy, and draconian interception powers could not only undermine confidence, but drive people offshore. We shall return to these key questions during our debates on the details of the clauses.
Mr. David Ruffley (Bury St. Edmunds): In welcoming you to the Chair, Mr. O’Hara, I express my delight at being selected to serve on the Committee and to participate in the deliberations on the Bill. I hope that the Minister will not take the Opposition’s failure to vote against the Bill on Second Reading as an indication that we are content with much of its content. Of course, we agree with the notion that the Interception of Communications Act 1985 needs upgrading because of new technology and the direction in which the world of technology is moving. The broad principle that we need to update that legislation is not in doubt. However, having sat on the Electronic Communications Bill Standing Committee, it seems to me that difficult competing interests need to be balanced. I am not sure that we shall be able to address them particularly rapidly. In debating the sittings motion, we must have regard to the conflicting needs of crime fighters, who need greater and more clearly defined powers to intercept communications, and businesses, which do not want overweening regulation that would impede their ability to do business efficaciously. We must also have regard for the legitimate interests of individual citizens who wish to see their civil rights adequately protected.
In the light of those broad concerns, I echo the points raised by my hon. Friend the Member for North-East Hertfordshire. It would be useful to hear whether the Minister has given further consideration to the concerns about clause 6 expressed by the Opposition on Second Reading. The Government are rightly concerned about social security benefit fraud, yet clause 6 makes no specific provision for a Department of Social Security official to have an interception warrant granted in his or her favour. The Home Secretary said, on Second Reading, that that was not a problem because the police would routinely investigate social security fraud, that it would be the subject of criminal investigations and that there was no need for the Bill to cater for the granting of interception warrants to social security officials. We take issue with that. I would like to hear whether the Minister has received any further representation since Second Reading, and whether the Home Secretary’s comments still hold good. My instinct is that they may not. I shall move on to the issues raised by clause 13. On whom will the cost of providing an interception capability fall, and what will the magnitude of such costs be? I refer to the views expressed by the Internet Service Providers Association on that point:
If ISPs in the UK are made to carry the burden of the costs of interception, at best they will be at a disadvantage compared to their European and international competitors and at worst will be unable to operate. It does not seem that this position would help make the UK ``the best place in the world for e-commerce’’.
Transforming the UK into such a place is the laudable objective set out by the Minister’s colleagues in the Department of Trade and Industry. They are right to wish this country to be the best place in the world to do e-commerce, but has the Minister had an opportunity to take on board the representations from that association and other trade bodies? Can he give us an early indication of the cost structure arising from the obligations imposed on service providers by clause 13? I echo the point made on clause 21 by my hon. Friend the Member for North-East Hertfordshire about the burdensome nature of bill logging. Has the Minister received further representations since that point was raised on Second Reading? Can he give us comfort on that now, or will we have to table detailed amendments later, which would affect our sittings? Like my hon. Friend, I am concerned about clauses 46 to 49, under which the onus is on an innocent party—who may not have a nefarious reason for losing a key—to show why he could not provide the necessary key on request. That is the reverse of being innocent until proven guilty. Does the Minister have anything further to report? If he has not given the matter further thought and does not intend to say something now, I can envisage long and detailed technical and jurisprudential debates on that provision. I am also concerned about part IV and what seems to be an area that can be cleaned up. A set of commissioners was appointed by legislation passed by the previous Conservative Administration—a Security Service Act commissioner, an intelligence services commissioner, a chief surveillance commissioner and surveillance commissioners working under him or her—but they have no dedicated, highly qualified and highly professional secretariat to help them with their work. We could with profit examine whether that regime could be streamlined, made more coherent and supported by a secretariat. That would raise many questions as to how it could be financed and set up. I hope that we shall have an enjoyable debate. Some of the faces on the Government Benches are friendly and distinguished. I am sure that we shall have an interesting debate, but I trust that in the light of my questions—[ Interruption.] I have no wish to ruin the Minister’s career or bring it to a speedy halt. It seems to be going quite well at the moment. I hope that we can have early replies to some of the questions that my hon. Friends and I have asked, so that we can decide whether this is a proper and adequate sittings motion.
Mr. David Maclean (Penrith and The Border): I rise to make two straightforward points. The first is my usual one about the shambles the Government have got the House into on Thursdays. I see that the sittings motion includes a provision to sit at 9 o’clock on Thursday morning, finishing at half-past 11 or 25 minutes past 11 or maybe, at your discretion, Mr. O’Hara, after that time. Then, in the afternoon, we sit at another extraordinary time of
2.30 pm.
I find sittings at 9 o’clock on any morning uncivilised, ungentlemanly and not in the finest traditions of the House. I say that as a parliamentarian who believes that no breakfast should be taken before 9 o’clock in the morning. My main concern is for the Minister. We all have our personal concerns about having to consider this important Bill at such an unearthly hour, but let us consider the Minister. His officials may receive the provisional order of selection the previous night. They may then work frantically to make up the Minister’s book and put the amendments and briefing notes in the correct order. The Minister will no doubt want a briefing with his officials before coming to the Committee and that will have to be at a diabolically early hour if he is to be in the Committee ready to perform at 9 o’clock. He may try to have a briefing late the night before, but, with the best will in the world, the submissions may not be ready then. My plea is on behalf of the Minister because it is a little unfair, and that is bad for the Committee. We may want to obtain important answers from the Minister, but he may have received a skimpy briefing in his car at ten minutes to 9 as he rushes to service the Committee.
11 am
I am sure that shortly after 9 o’clock this morning the Minister had a briefing with his officials on the contents of the Bill, the first few clauses, the sittings motion, the order of consideration and the matters that may arise this morning. That is sensible and proper and allows him to respond fully and adequately to us, but I would bet that on Thursday morning the quality of the Minister’s replies, with the best will in the world, will fall considerably. Following Pepper v. Hart, we may find that, a few years down the line, the Home Secretary will have to come to the House to say that yet another learned judge must be asked to intervene and rule on a point of law because of a comment made by the Minister in a Committee that sat at the crack of dawn on a Thursday morning when he was inadequately briefed.
Mr. Heald: Does my right hon. Friend agree that his point is particularly apt for a Home Office Minister, because everyone knows that the fax machine does not work.
Mr. Maclean: No doubt someone has intercepted the fax machine and disabled it. That shows the power of the security services. My hon. Friends are aware of my view of the shambles on Thursdays when no one knows when Committees sit and the Chamber sits. It is what, in army days, was called a right bugger’s muddle. I hope that it will be unscrambled and that the Minister will move that we meet at a more sensible hour. Secondly, I am not sure how long a Committee’s proceedings should last. The Bill contains a lot of detail, which needs to be considered carefully. If I had a free hand—I do not and must follow the guidance of my hon. Friend the Member for North-East Hertfordshire—I should delete many clauses because they are irrelevant. The Bill is a futile attempt by the Government, and would be equally futile if introduced by a Conservative Government, to try to give the security services the competence and technological ability to deal with the bad boys—the geniuses who invent new computer techniques are streaks ahead of the bad guys every time—and to give them the resources to tackle electronic communication of data on the internet, in e-mails and in encryption. The one part of the Bill that is valid and sensible is part II, which provides legal cover for covert surveillance. The game is given away in part III, which admits that the only way in which to deal with criminals who encrypt data is to ask them to tell us their secret code and, if they will not, to imprison them for two years. It is an admission of the inability of any Government to have the technology to bear the new encryption technology. If such technology or techniques existed, the Bill would contain provisions authorising their use, and part III would be unnecessary. Part III represents putting hands up and saying, ``We’re stuck now. Please give us your encryption code, or you’ll get a nasty term of imprisonment.’’ Freedom of the individual is at stake.
Mr. Ian Taylor: Just for the sake of clarity, will my hon. Friend consider what he just said? Part III and clause 46 do not necessarily impinge on the criminal. However, the process of finding out whether criminal activities are going on might impinge on an innocent person.
Mr. Maclean: My hon. Friend is absolutely right. I was about to deal with that point. If I want to send a perfectly legitimate message or an on-line order to Tesco, which I must do this week to avoid running out of tea and coffee in my flat—
Mr. Charles Clarke: Champagne.
Mr. Maclean: No, it is Labour Members who have champagne. I am not a Champagne socialist. The Britishness in me wants to encrypt that order to Tesco and challenge any Government—Tory, Labour, Liberal or any other—to make me reveal the key. It is my right to do so if I wish. I am not the only stroppy person in the country—[ Interruption.] Well, fairly stroppy. Surely, it is our right as individuals and citizens to be stroppy about such matters if we wish. The difficulty is that Governments and the security services will have to require the encryption key to many genuinely innocent messages in order to find criminals who are sending guilty messages, if I may use the expression ``guilty’’ in that way. That is probably slightly different from other kinds of interception of communications. I have always argued strongly for the rights of the Executive. If Ministers, the Home Secretary or a judge have been given information on named individuals, and reasonable grounds exist for suspecting that those individuals are involved in criminal activity or are a threat to the state, the Secretary of State should grant a warrant. My worry is that part III may involve checking on the e-mails of innocent people, obtaining the encryption key, then saying, ``That’s okay. Protected information came into our hands. We’re terribly sorry. You’re not guilty; you’ve done nothing at all. You were sending an innocent encrypted message to Tesco.’’ To my mind, as a Brit, that does not seem right.
I am happy to open the e-mail of every terrorist, every paedophile, every suspected criminal and everyone who is damaging the economic integrity of the state. That causes me no problems at all, and I have no problems with the Home Secretary authorising it. It would cause me even fewer problems if a judge were to check that the Home Secretary did so correctly. However, if part III is drafted too widely, and innocent people are forced to give up their encryption codes merely because the state is not able to distinguish between the good guys and the bad guys, that is a step too far. The net result will be that electronic commerce will move out, and people will find other ways of circumventing. I have no idea how long the Committee should sit. I have no objection to sitting on Thursdays. I dissent from the Liberal view on that. I am not concerned about what time the Committee sits on Thursdays. I came here to act as a check on the Executive—
Mr. Peter Luff (Mid-Worcestershire): Not too early.
Mr. Maclean: Not too early. I do not want an early check on the Executive. I prefer to work later on Thursdays than at the crack of dawn. The Opposition support the general thrust of the Bill; no Opposition could be against it. When our proceedings finish, hon. Members will say how well you, Mr. O’Hara, and your co-Chairman, Mrs Michie, have chaired the Committee, how well it has gone and what an excellent Bill we are now passing downstairs. We must keep at the back of our mind the fact that, however much we may have moved the commas or tickled bits of it, most of the Bill may be utterly irrelevant with today’s criminals and today’s technology. That is not to say that we should not go through it carefully—we must do so—but we must be aware of our limitations, as John Wayne or another great actor like him once said. A man must know his limitations, and our limitations with the Bill may be that the technology is five steps ahead of us.
Mr. Luff: I also welcome you to the Chair, Mr. O’Hara, and your co-Chairman, Mrs Michie. I look forward greatly to contributing to the debates on the Bill under your chairmanship. Like my right hon. Friend the Member for Penrith and The Border (Mr.Maclean), I have not the slightest idea how long it will take us to scrutinise the Bill, for reasons that I shall explain to the Committee. It is common ground on the Opposition Benches that the principle underlying the Bill is acceptable, but the devil is always in the detail. I was drawn out of the Committee for a few moments to talk to my hon. Friend the Member for Aylesbury (Mr.Lidington), who tells me that the papers for the Report Stage tomorrow of the Terrorism Bill contain 197 amendments, eight new clauses and two new schedules. That is entirely characteristic of Home Office legislation of which, if we are honest, we all agree there is too much in this parliamentary session. That puts great pressure on the parliamentary draftsmen. Some 130 Government amendments to the Political Parties, Elections and Referendums Bill are being considered today, or were considered yesterday. I am told that the total will probably rise to 900 when the Bill reaches the House of Lords. That demonstrates how important it is that the Committee does it work thoroughly on a Bill so vital to the communications industry and the country’s economic well-being.
Mr. Ian Taylor: Perhaps my hon. Friend is saying that the Home Office should follow the Department of Trade and Industry’s excellent lead. It took half a Bill out during its proceedings in Committee.
Mr. Luff: My hon. Friend helpfully draws my attention to another example of chaos in the drafting of Government Bills, which led to real difficulties for the Committee considering the Utilities Bill. My hon. Friend’s suggestion would also appeal to my right hon. Friend the Member for Penrith and The Border. The Committee may wish to consider it later. An example of the kind of detailed problem that we might encounter occurs in clause 1. We have received representations from the industry about exactly what a public telecommunications system is. The Bill attempts to define a public telecommunications system, but it appears to be a more difficult exercise than any of us imagined. The point made by my hon. Friend the Member for Esher and Walton (Mr. Taylor) and my right hon. Friend the Member for Penrith and The Border is that we are shooting at a moving target, which makes considering legislation exceptionally difficult.
I vividly remember my time at the DTI as a special advisor looking at copyright legislation. It is terribly difficult to shape legislation that properly anticipates developments in technology, and much more difficult when technology is as fast-moving it is today. We shall have to look exceptionally carefully at the Bill. The Internet Service Providers Association, the Foundation for Information Policy Research, the Telecommunications UK Fraud Forum and STAND have all made detailed representations to us. My hon. Friends may be able to help me on what the acronym STAND stands for. No immediate suggestions are coming from the Committee.
I want to quote from STAND’s website, which I commend to the Minister and his officials. It says: We aren’t lawyers. This document contains the obvious errors that we’ve spotted on our own inspection of the Bill. The very fact that we, as laymen, have spotted so many problems indicates to us that many more may lay in wait. It seems, to us, a rushed bill with many unforeseen ramifications. We’re sure you can find you own bugs—
not you, Mr. O’Hara, but the readers of the website— and we’ll be happy to update this document to help publicise them. Please take advantage of our fax service to contact your MP. One of my constituents has already done so. I want to draw that to the Committee’s attention briefly. STAND continues:
Please let them know that you’re concerned, and highlight for them the problems you forsee. Feel free to quote from this document, but it’s best if you use your own words.
How wise!
Bear in mind that many Members of Parliament are technological neophytes, and may not know how to access Web resources. That makes an important point. Here we are, technological neophytes, trying to scrutinise a Bill of exceptional importance for the industry. [Interruption.]. I think I heard the words ``Speak for yourself’’ from the Government Benches. We shall see, as the Committee unfolds, whether we are neophytes or not. The important point made on STAND’s website is this:
Compared to previous government attempts, the RIP Bill— a rather unfortunate abbreviation— has been introduced incredibly swiftly and with little oversight. It has a strong chance of being law by October 4th. I am sure that the Minister hopes that that will be the case— You need to make your voice known now. I believe that STAND is right to say that.
My constituent Joseph Noyes from Droitwich Spa has taken advantage of STAND’s fax service to Members of Parliament, although I would prefer it if he e-mailed me in future. I am not a neophyte, and an e-mail would be more legible than a fax. He says:
I do not like to think that I could be monitored by a ``Big-Brother’’ state which, through this bill, has shown its complete unwillingness to trust a new technology.
He concludes:
This bill goes too far in the wrong direction and does not take one step in the right direction. I hope you will support its re-writing when the bill is next read in the house of commons. Thank you for your time.
Re-writing may be an ambitious hope, but concerns such as those must be properly addressed. We must ensure that the sittings motion gives us adequate time to scrutinise the Bill in detail.
11.15 am
I shall raise briefly three further concerns. First, the Bill deals with one of the most important issues with which we, as legislators, contend—where to strike the balance between freedom and law. Freedom under the rule of law is a fundamental tenet of the Conservative party and, I hope, of all parliamentarians. Striking that balance will be of central importance and we must apply that test time and again as we go through the Bill. We must also use exceptional care in striking a balance between national security—an important objective—and commercial opportunity, if we are to ensurethat the industry flourishes as we want, and that our citizens do not suffer undue scrutiny and intrusion. Secondly, I am deeply concerned about the number of provisions for secondary legislation in the Bill. I hope that we may be able to reduce those opportunities during our deliberations. Clause 12(1) states:
The Secretary of State may by order provide for the imposition by him on persons who—
(a) are providing public postal services or public telecommunications services; or
(b) are proposing to do so,
of such obligations as it appears to him reasonable to impose for the purpose of securing that it is and remains practicable for requirements to provide assistance in relation to interception warrants to be imposed and complied with. That is a hugely powerful order, which we shall examine with exceptional care. My final point is that, given the importance of the Bill to the industry that it seeks to regulate, it is crucial that we are seen to be open to the concerns of those outside the House who wish to make representations to us. We must proceed with care, and not too rapidly, to enable them to keep pace with our proceedings. That can be a real problem for those outside. If the Committee is to do its job effectively, it must listen carefully to those people. The potential for intrusion, and for the imposition on the industry of huge costs, is very real. I end as I began, by asking how long we shall need to consider the Bill. How long shall we need to sit at 9 o’clock on Thursday mornings, and at 10.30 on Tuesday mornings? I do not know, but we shall not have done our job well if we conclude our proceedings in Committee while those outside—whom the Bill will affect—feel dissatisfied that their voice has not been heard.
Mr. Charles Clarke: I have enjoyed this early exchange. I shall deal first with some of the procedural points that have been raised. As far as the civilised and gentlemanly right hon. Member for Penrith and The Border is concerned, I want to say how very much I appreciate his concern for my welfare. I found it genuinely touching. I thought long and hard before proposing the sittings motion. I believe that I shall be able to brief myself in the necessary way for the Bill and I hope to be able to respond as effectively as I can. I think that I am right to say that the Terrorism Bill Standing Committee—on which the right hon. Gentleman and I both sat—met at 9 o’clock on Thursday mornings from time to time. Although I have not conducted a detailed textual analysis of those proceedings, I do not think that the debates were any less coherent at, say, half past 9 on a Thursday morning than at 11 o’clock on a Tuesday morning.
I appreciate the way in which the right hon. Gentleman made his point, and I may be able to help him with a difficult, encrypted way of dealing with the complex problem of comparing Thursday to the rest of the week. If, on Thursday, one subtracts three from the normal hours in the rest of the week, that de-encryption process will lead to an understanding of the timings on Thursday, compared to whatever else may be happening at other points during the week.
In answer to the point raised by the hon. Member for Sheffield, Hallam (Mr. Allan), it is our intention to meet on Thursday afternoons. However, we are prepared to discuss through the usual channels the question that he raised about the Thursday in Budget week, to see what can be arranged for the convenience of members of the Committee.
The hon. Member for Mid-Worcestershire (Mr. Luff) said that his hon. Friend the Member for Aylesbury drew attention to amendments that have been tabled in respect of the Terrorism Bill, which will be on Report tomorrow. Many are technical and many were tabled in the light of debate in Committee, which is important. I pay tribute to the right hon. Member for Penrith and The Border, whose speech in Committee resulted in one of those amendments. That reflects the broad-tent policy that has characterised this Administration in many different ways.
The hon. Members for Bury St. Edmunds (Mr. Ruffley) and for Mid-Worcestershire paid eloquent tribute to the Bill’s attempt to balance the differing and competing interests of law enforcement, business and the individual. That is absolutely right, and the judgments that must be made as we proceed will be difficult. The interplay of those interests must be debated at every stage, and the sittings motion will allow us to do so fully. We acknowledge that the issues are difficult, and we intend to debate them openly and directly. There are differing points of view in this Committee and outside it, and they should be properly aired. I hope that no Committee member will feel that the Government have tried to short-cut the important discussions of principle that must take place.
I shall try briefly to address the detailed points raised by the hon. Members for North-East Hertfordshire and for Esher and Walton. On clause 6, we are not persuaded that the Department of Social Security should be given the powers that amendment No. 15 would provide. We shall debate the matter and set out our reasons fully when the Committee considers the clause, but we are not persuaded that we should take that course. Nor are we persuaded at this stage that clause 6(2)(k), which will provide the general power to which the hon. Member for North-East Hertfordshire referred, should be replaced by a specific list, although we are ready to listen to discussion. Several Committee members have said that it is difficult to create legislation that deals with technology as it progresses in different ways, and that is why we have retained an element of flexibility. However, I shall listen to the arguments as we debate the clause, so that the problem can be addressed in the most effective way. I can be more helpful in respect of the points raised on clauses 12 and 13 by the hon. Member for North-East Hertfordshire, whose questions on information and costs concern not only this Committee but those outside it. I have signed a letter to the hon. Gentleman and other Committee members, fulfilling my commitment on Report to assist the debate by providing the available information on costs. They will not have received the letter because we are waiting for formal confirmation from Demon that the letter may include certain information with which Demon has provided us. That confirmation should be provided in the next 24 hours. The letter will set out how matters stand and state that we have commissioned a detailed study. Data from that study will be available during the Bill’s legislative passage.
I want to be as positive as I can. I acknowledge the point that the hon. Gentleman made on Second Reading and today, because the concerns are real and there has been considerable misunderstanding. It is the Government’s job to provide the clearest possible information, and I hope that he will find the letter satisfactory in that regard.
Mr. Heald: I am grateful to the Minister for that helpful remark. Is the study being undertaken by external consultants, and if so, when does he expect to receive it?
Mr. Clarke: Yes, it is, and we hope to receive it shortly, so that the information will be available to assist the debate.
Mr. Luff: Given the Minister’s reference to writing letters against tight deadlines and the consideration of individual clauses, is there any prospect of his officials e-mailing the letters to members of the Committee so that we get them more rapidly?
Mr. Clarke: I am prepared to conduct a survey of members of the Committee who are able to receive e-mails; I believe that the hon. Member for Mid-Worcestershire is in a position to do so. Perhaps, Mr. O’Hara, we should establish a new principle of communication for the Committee, and your Clerk could consider whether that would be an exciting departure from the norm. Of course, the Home Office, as pioneers in all matters technological, would like to be the first Department of State to be able to communicate about such matters by e-mail instead of other means. However, it is a procedural matter for you and your colleagues, Mr. O’Hara.
The Chairman: Order. I shall check the position with the Chairmen’s Panel and report back in due course.
Mr. Clarke: Thank you, Mr. O’Hara. We find it straightforward to communicate in that way, and it would be interesting to take it further. However, I am in your hands and will take your advice as to the appropriateness or otherwise of doing so. The hon. Member for North-East Hertfordshire referred to clause 21, which deals with communications data. I shall leave that matter until the debate on the amendment, except to say that under clause 21(2)(f) the tax issue relates to taxes that are payable to a Govertment Department. Council tax is not payable to a Government Department, so the powers would not allow a local authority to sift data for council tax in the way that the hon. Gentleman suggested. We can debate that in detail when we reach the appropriate stage of the Committee’s proceedings.
Mr. Heald: If I may tempt the Minister to go further, clause 24(2) refers to those who can be designated as individuals holding offices, ranks or positions with relevant public authorities. However, subsection (1)(f), which is immediately prior to that, appears to refer to any public authority. What is the reason for that?
Mr. Clarke: As I said, we shall discuss it in due course. The various purposes of data collection are set out in clause 21(2). I simply make the observation that clause 21(2)(f), which stipulates the purpose of collecting a tax, specifies a tax that is payable to a Government Department, and council tax is not such a tax.
Mr. Heald: I have an argument with that.
Mr. Clarke: Okay. That means that we will have an entertaining debate when the time comes. On clauses 46 to 49, legitimate issues were raised by the hon. Gentleman and the hon. Member for Esher and Walton about statutory defence and the reverse burden of proof. However, we do not accept that the criticisms being made by civil liberties organisations—admittedly for legitimate reasons—are well founded. The statutory defence that the Bill provides is not the same as reversing the burden of proof. I make a commitment that the Committee will have the opportunity fully to debate the issue at the relevant point. However, I do not want to give the impression that we are thinking about modifying our position, because that would imply a flexibility on our part that does not exist. The hon. Member for Bury St. Edmunds—who is always referred to in my notes as ``BSE’’, although I am sure that ``the hon. Member for BSE’’ would not be an appropriate description—raised some points in relation to part IV on unifying the commissioners. We intend to have a unified secretariat, which should address the hon. Gentleman’s worries in that respect. However, legitimate issues are involved, and we are carefully considering them on the basis of the representations that were made in speeches on Second Reading. We shall be interested to hear Committee members’ views, although whether we can meet their concerns remains to be seen. I have dealt with human rights. My final point is that we do not accept the suggestion that the age of interception is over or that work in that area may be futile, as the right hon. Member for Penrith and The Border said. That would be a philosophy of despair. I understand why people take that view—they see the internet as an all-embracing vehicle that cannot be controlled by any national legislature. We believe strongly that the power of this form of communication and the nature of global crime in so many important areas, such as drugs, paedophiles and so on, is such that we must do what we can to control it. The powers in the Bill will allow us to have an impact on that. To say that we cannot do anything would be to accept a counsel of despair and we cannot accept that.
11.30 am
Mr. Ian Taylor: I accept the principle that the security services and others must try to keep up with technology. We must ensure that our legislation permits them to do so because what they do is very important. When we debate the details of the Bill, will the Minister share with the Committee the evidence from his discussions with people in other countries? The network is global and anarchic. It would help the Committee to know whether the Government have discussed with the Americans and our continental partners how they will apply similar legislation.
Mr. Clarke: I am certainly prepared to share that information. I attended a G8 summit in Moscow on money laundering when a number of those questions were raised. The matter is not straightforward, as the hon. Gentleman well understands. The legal systems in different countries vary so much that a straight trade-across is difficult. How effective we are at tackling the problem and how well we work with our allies is important. I am prepared to discuss that in Committee because it would be helpful. I think that those are all the points that I want to make in response to the debate. The sittings motion will allow full debate of the Bill, difficult as it may be for hon. Members to be here at 9 o’clock on Thursday mornings. I hope that the Committee will agree the sittings motion.
Question put and agreed to.
Resolved,
That, during proceedings on the Regulation of Investigatory Powers Bill, the Committee do meet on Tuesdays at half-past Ten o’clock and at half-past Four o’clock and on Thursdays at Nine o’clock and at half-past Two o’clock.
Resolved.
That the Bill be considered in the following order, namely, Clauses 1 to 46, Schedule 1, Clauses 47 to 56, Schedule 2, Clauses 57 to 72, Schedules 3 and 4,
Clause 73, New Clauses, New Schedules. [Mr. Charles Clarke.]
Further consideration adjourned.—[Mr. Sutcliffe.]
Adjourned accordingly at twenty-eight minutes to Twelve o’clock till Thursday 16 March at Nine o’clock.
The following Members attended the Committee:
O’Hara, Mr. Edward (Chairman)
Allan, Mr.
Beith, Mr.
Clark, Mr. Paul
Clarke, Mr. Charles
Dawson, Mr.
Dobbin, Mr.
Heald, Mr.
Luff, Mr.
Maclean, Mr.
Moran, Ms
Ruffley, Mr.
Sutcliffe, Mr.
Taylor, Mr. Ian
Thomas, Mr. Gareth R.