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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
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.
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 up 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
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
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--
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?
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