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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Amendment, by leave, withdrawn.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]:

10.45 p.m.

Lord Phillips of Sudbury moved Amendment No. 44:

("( ) 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

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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.

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