Previous Section Back to Table of Contents Lords Hansard Home Page


Lord Bach moved Amendment No. 46:


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.

12 Jul 2000 : Column 354

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 draftsman. 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 draftsman. 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.

11 p.m.

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.

12 Jul 2000 : Column 355

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.

12 Jul 2000 : Column 356

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.

12 Jul 2000 : Column 357

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.


Next Section Back to Table of Contents Lords Hansard Home Page