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Lord Bassam of Brighton: I am grateful to all Members of the Committee who have contributed to the debate. I am grateful also to all those who have made positive contributions, and most of the contributions were positive. I shall try to answer as many of the questions as I can, although I must study in some detail the questions of the noble Earl, Lord Northesk, and reflect on them because they were rather more complicated.
The noble Lord, Lord Cope, asked who authorises the acquisition of the key in those circumstances. It is the Secretary of State, a circuit judge or magistrate or a police superintendent or equivalent in the Customs and Excise and Armed Forces. I believe that that answers that important point.
Quite rightly, the noble Lord, Lord Cope, was delighted, as we were, that Members of the Committee have been furnished so quickly with a revised version of the Bill. That was a helpful initiative. We also hope that the noble Lord, Lord Cope, and other Members of the Committee have similarly found helpful the document that we sent out to describe exactly how we see our revisions working. We shall continue to perform in that way because it is right that we put as much in the public domain by way of explanation, context and understanding as we can.
While no government likes criticism, it is essential. If it stimulates important debate and enables us to focus on hard issues, it does a great service. In this exercise it has been extremely helpful.
The noble Lord, Lord Blackwell, made comments that related to the point of principle and to matters of practicality. As I understand his comments, they seem very helpful. I hope that the way in which we have
The concept of "key" is defined in Clause 52 and it bears some close reading. If there is no key to encrypted data, clearly the powers cannot be exercised. The whole point about encrypted data is that someone somewhere will have the key to that data. That is plain.
It may be useful if I refer to the point raised by the noble Lord, Lord Lucas, in relation to self-incrimination. The Article 6 point can arise only in the context of criminal proceedings brought against a person who has been required to disclose a key and where the data that that key unlocks are used by the prosecution in any proceedings against that person. Clearly, that will not arise in many cases--for example, where encryption requests are made to third parties, communication service providers, and not to the accused. We believe that our proposals are ECHR compatible, even when the holder of protected data is required to disclose the key. Of course, the key itself is not self-incriminatory.
In our view, the correct analysis is that a key has an existence independent of the will of the subject. We believe that that was explicitly approved by the European Court in the leading case of Saunders v. United Kingdom in 1996. The court found that the right against self-incrimination does not extend to the use in criminal proceedings of material that may be obtained from the accused for the use of compulsory powers, but which has an existence independent of the will of the suspect; for example, documents recovered under a warrant. I hope that that clarifies the issue for the noble Lord.
The noble Viscount, Lord Goschen, asked about the circumstances. I believe it would be circumstances in extremis. He also asked whether plain text would be involved in the majority of cases. I believe that plain text will suffice in most cases. That is our clear intention, and that is why we have been more than happy to rewrite this in the way that we have.
The noble Earl, Lord Liverpool, said that he thought that our amendments had not addressed his concerns. The simple answer is that we already believe that the Bill, as drafted, effectively addresses them, but we are more than happy to consider further the point that he has made. After giving it further consideration, we may bring forward an amendment on Report that puts the matter beyond doubt. We are happy to look again at the issue he has raised.
I felt that the argument of the noble Earl, Lord Northesk, was based on pessimism. From what he said, it seemed that the imaginative criminal mind will always be so far ahead of us that it would be self-defeating to attempt the art of enforcement and the recovery of information. I do not believe that he thinks that is the case in his heart of hearts, but that was how it sounded.
The Earl of Northesk: I actually said the opposite. I said that in pure terms, so far as encrypted data are concerned, the resources available to law enforcement agencies in terms of forensic hacking and so on, are better arms at their disposal than something that is so patently easy for the criminal to get round by being on the face of the statute.
Lord Bassam of Brighton: I am prepared to take the argument at face value. I do not believe that the noble Earl has entirely disabused me of his intention. From what he has said, it seems that he believes that we should not be legislating in this area at all and that we should approach the matter from a completely different angle. That is an argument that rests on pessimism.
I said that I would respond in detail because the questions were detailed. I hope that I have answered as much as I can in what has been a useful debate. On that basis, I shall move our amendments. I hope that noble Lords will withdraw their amendments in favour of the government amendments, which try to answer the points raised in the various amendments tabled for this debate.
Lord Lucas: Perhaps I may return to a couple of matters. As the noble Lord said, the paragraphs of Clause 46(1) cover the situation whenever the police or the Customs and Excise are on a raid. It is inconceivable that under those circumstances the warrant will not ask for the key. In those circumstances the key will be needed; you will not trust the people concerned to do the decryption for you. Although the Government say that only exceptionally in the current set-up will keys be asked for, I believe that they will be asked for every time there is a raid. There must be tens of thousands of raids a year. Anyone raiding premises for computer equipment will go equipped with a warrant saying, "We want the key". Unless we have clear comfort by way of letter, I believe that we shall have to be firm on this matter on Report.
To throw another stone into the pool of self-incrimination, I keep my passwords in my head; they are not written down anywhere. Presumably, under those circumstances, I could not be asked to reveal them.
Lord Cope of Berkeley: I am still slightly uncertain as to exactly who can authorise a key as opposed to plain text. The Minister said that authorisation could be given by the Secretary of State, by a circuit judge, by a magistrate, or by a police superintendent or equivalent person in other areas. I am not sure how the police superintendent comes in at this stage. Reading the Bill--perhaps I read it wrongly--it seems that the warrant from the Secretary of State, the judge or the magistrate giving permission would, in various cases, need to state that a key had to be disclosed or was required so that the police superintendent or equivalent person could put that into the notice. If the warrant did not state that, the police superintendent or
It is important to understand, if we can, what the line of defence is as between plain text and key. Is it the Secretary of State, judge or magistrate issuing a warrant or the officials of the law enforcement agency, the police superintendent or above, who are giving the additional permission for the key to be obtained?
Lord Bassam of Brighton: I believe the comfort the noble Lord is after is in Schedule 1, which follows on from Clause 46(7). That sets out the various levels at paragraph (6). If the noble Lord is not satisfied with the explanation I gave earlier, then I shall be more than happy to come back and provide him with some extra comfort, as we shall through all stages of this legislation. I trust that that answers his point.
Lord Cope of Berkeley: The Minister is very kind to look after my comfort. But the specific part about which I am concerned is Schedule 1, paragraph (4). That seems to widen the permission but is so obscurely phrased that it is difficult to be certain exactly what the effect will be in practice, at least as far as I and others with whom I have discussed this matter can see. In my view, it may well need amendment to ensure that the additional permission required to go for the key as opposed to plain text should be given by, at the very least, a magistrate in the course of giving permission for the operation to take place.