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Lord Bach: My Lords, I believe that consultations take place in different ways and at different times. However, I can see no objection to meetings between the organisations mentioned by the noble Lord and the Home Office. Indeed, I believe that such meetings would be helpful. I am grateful to the noble Lord.

Viscount Astor: My Lords, I am grateful to the Minister for his reply on various issues. As he stated, it is extremely important for full consultation to take place with such organisations as the BMA on the code of practice. Indeed, serious issues are raised concerning the National Health Service and its Internet service providers. It is crucial that the doctor/patient relationship is preserved. It is also crucial that any worries they have do not stop doctors using the Internet, which is of enormous value to them. It would be dangerous and bad for the National Health Service, and for doctors and patients if, as a result of concerns about the use of confidential material, they stopped using the Internet. That is a concern which I realise the Minister took on board. However, I hope that he will take it back to his colleagues in the Department of Health and that there will be full consultation.

I turn to the remarks made about Scottish law. I am standing in for my noble and learned friend Lord Fraser of Carmyllie. I have to admit to being half-Scottish. However, I should not dream of trying to become even half a lawyer. I am a pale shadow of my noble and learned friend. I am grateful for the remarks the Minister made on those amendments. I wish that I knew enough about Scottish law to come back to him on various points. However, I shall have to retire, thank him for his response and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 18:


The noble Lord said: My Lords, the noble Lord, Lord Lucas, proposed an amendment on Report which would have substituted "or" for "and" in what is now page 56, line 21. Some commentators have since returned to the subject, so we have given the matter further thought. We believe that the Bill can be clarified.

Where information is protected both by an obstacle to access, such as a password, and by encryption, it is right that the plain text requirement in Clause 50(1) should apply only where the person can overcome

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both obstacles. We remain of the view that the amendment tabled by the noble Lord on Report would not have worked. However, where there is a password and no decryption, it should be enough that the person has the password. The Bill implies that in all cases he must also have the means of putting the information into intelligible form. I suggest that that is misleading. In the case I have described, no such means are necessary.

The important thing is that the person must be able to achieve access to the information and be able to disclose it in intelligible form. The first amendment, I hope, makes that clear. If he can do those things, he need only disclose the plain text. We have been round this argument before, but that is primarily our objective. If he cannot do both those things, he must disclose the key. The second amendment, which operates on subsection (3), achieves that.

I hope that we have gone some way to achieving what the noble Lord, Lord Lucas, was seeking to achieve with his amendment and improved it. I beg to move.

Lord Lucas: My Lords, I am grateful to the Minister for taking into account the arguments which I passed on to him, for finding an elegant solution to the problem raised and for explaining the problem so much more eloquently than I did.

On Question, amendment agreed to.

Lord Lucas moved Amendment No. 19:


    Page 56, line 26, at end insert ("; and


(c) shall be required, where the notice so stipulates, to provide evidence, to the reasonable satisfaction of the person giving the notice, that the disclosure made truly represents the protected information in an intelligible form").

The noble Lord said: In moving Amendment No. 19 I shall speak also to Amendment No. 20. As with the previous amendment, I passed my briefing on these two amendments to the Minister, who will therefore understand that I am looking for a couple of ways to make it ever less likely that keys have to be divulged.

Amendment No. 19 makes it possible for the person requiring the plain text--the police officer--to demand proof that the plain text is the correct text. That means that, in circumstances where producing the key might be a severe embarrassment but the police have reason to be concerned that if they did not have the key they would not get the correct plain text, they have the option--it will be their option and, I suspect, that of the other person--of looking to a third party to provide the decryption or to some other form of evidence. That will reduce the number of occasions on which a key may be required. It does not seem to me, although the Minister may correct me, that at present the Bill contains the powers necessary to allow for that option.

Amendment No. 20 relates to occasions where there are several key holders to a specific piece of information. If that information was of particular value to a company, there might be half a dozen key

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holders of whom four or five are required to act together to open up the information. At the moment, if one of those key holders is served with a notice, he clearly cannot decrypt the information by himself and therefore has to surrender his key. If he was allowed to talk to his fellow key holders, then he would be in a position to decrypt the information without providing keys.

Again, I hope that the amendment is phrased in a way which will allow effective discretion to the police or whoever wants the information so that, in circumstances where such a procedure is inappropriate they will not have to follow it. But it will provide them with the means, the mechanism and the normal arrangements to ensure that, where it is at all possible for sufficient key holders to be brought together to provide the decryption, then that would be the preferred route. I beg to move.

Lord Cope of Berkeley: My Lords, I seek only to emphasise what my noble friend Lord Lucas said. We are all keen to reduce the number of occasions on which keys are required for a variety of reasons which we have discussed on previous occasions. That is why Amendment No. 19 is desirable, or something along those lines. My only hesitation is that I am not sure that what is sought to be done by Amendment No. 19 cannot be achieved by a less formal means than changing the statute. Subject to that, an obligation to prove the correctness of the plain text may help in some cases.

Lord Bassam of Brighton: My Lords, as the noble Lord will appreciate, this amendment takes us back to an earlier discussion. Again, I am grateful to the noble Lord, Lord Lucas, for his earlier suggestions. That is probably as far as I can go on Amendment No. 19, but I can be more encouraging on Amendment No. 20.

As we continue to state, where the authorities are dealing with an entirely legitimate organisation which is not, of itself, of security concern or suspected of involvement in any criminality, requiring the disclosure of the plain text--rather than a key--will be the norm. That is similar to what happens now when, for example, the police need to approach a bank for information stored electronically. They rely on the bank's integrity and, where necessary, use them as witnesses. We envisage the same sort of scenario over encrypted material. So when the authorities are dealing with a legitimate organisation it seems to us unnecessary to stipulate that evidence be obtained attesting to the accuracy of the disclosed information.

So if the provision is unnecessary for legitimate organisations, we must ask when it might be of use. We do not believe it would be appropriate where notices are served on persons or organisations who are suspected of being involved in criminality, for obvious reasons. Let me reiterate a couple of points I made on Report.

First, if someone is a suspected criminal, it does not seem to us to be appropriate to trust that person to go and prove, presumably by means of a third party, the authenticity of the relevant plain text. Secondly, there

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is also the timing point. There may be critical timing considerations involved in a specific investigation. An additional evidential stage or test would mean time taken up for compliance, for reviewing the evidence supplied and for responding to the view taken of the evidence. We really do not see how all of that can be built into the procedure without potentially damaging the effectiveness of the Part III power. I am sure there are few in your Lordships' House who want to undermine an effective and coherent approach to investigation. It would cast the investigating agency into an uncomfortable quasi-judicial role as reviewer of evidence.

Amendment No. 20 would further restrict the cases where a key must be disclosed. I understand entirely the spirit behind the amendment and to a large degree share the intent. I hope by now noble Lords will acknowledge our sympathy with this aim. We have done what we can, even to the extent of recently tabling amendments to bolster the principle that plain text is the norm. I am therefore genuinely sorry to have to oppose this amendment.

The amendment would apply to the person who has the protected information in his possession and a key to that information, but not all the keys necessary to produce plain text. The noble Lord would allow the person to seek the assistance of the person who has the missing key and by that means to deliver plain text.

I hope that those arrangements would normally apply. But as I explained on Report, we cannot allow the recipient of a notice as of right to tell someone else about the Section 49 notice, whether to seek assistance or for some other reason. That is because the notice may contain a secrecy requirement. On the other hand, where there are no operational reasons for preventing that sort of disclosure, I agree that it should be allowed.

This afternoon I give an undertaking that we will expressly make that point in the code of practice. I realise that that may not entirely satisfy the noble Lord's second amendment. However, it may be a neater and ultimately more effective way of achieving what the noble Lord is seeking. I trust with that explanation the noble Lord, Lord Lucas, will feel able to withdraw his amendment.


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