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The noble Lord said: My Lords, in moving this amendment, I shall speak also to government Amendments Nos. 23 and 26 and to Amendment No. 27, which is tabled in the name of the noble Lord, Lord Lucas. Amendments Nos. 22 and 23 represent a technical change. In looking at the change that we made on Report to what is now Clause 51(2), we noted that the military police are not properly covered in subsection (2)(a). We are proposing these technical changes to correct that point.
When, on Report last week, we discussed levels of authorisation for requiring that keys be disclosed, I indicated that we would look at imposing a requirement that any direction given by the persons mentioned in what is now Clause 51(2) should be notified to the relevant independent commissioner. Amendment No. 26 is the result of that undertaking. It means that any directions for the disclosure of keys given internally by the police, HM Customs or Her Majesty's forces be notified within seven days to either the Intelligence Services Commissioner or the Chief Surveillance Commissioner, as appropriate. We have already substantially increased the level of authority required for directions to be given requiring the disclosure of keys.
This amendment introduces what we believe is an additional, but important, safeguard. I expect the cases involving internal agency authorisations to be limited. But in the operational circumstances in which they might arise, I hope that this statutory notification requirement will add a measure of further reassurance. When we discussed the issue of authorisation last week, the noble Lord, Lord Cope, said that the suggestion of notifying a commissioner was well worth consideration. I hope, therefore, that this provision is welcome.
I am most interested in the suggestion made by the noble Lord, Lord Lucas, in Amendment No. 27. Unfortunately--no doubt the noble Lord will accept this--the amendment is technically deficient. Because of the rules of procedure at Third Reading, we have been unable to table a manuscript change to correct that deficiency. In any event, we do not believe that this matter needs to be reflected on the face of the Bill. We clearly agree that chief constables should be required to notify the commissioner as soon as they can. But we do not believe that such a stricture is easily compatible with one specifying a particular time-scale. The time-scale is the important consideration; and the Bill provides for a seven-day limit.
Having said that, we shall ensure that the code of practice should encourage best practice in terms of immediate notification, or something similar. The noble Lord will have ample opportunity to comment on the code, not least when it returns to Parliament
Lord Lucas: My Lords, perhaps I may begin by picking up the Minister's final point. In that way, I can at least have the benefit of the thoughts of my colleagues on the Front Bench on my thoughts, and that might give me some guidance. I turn, first, to my Amendment No. 27. It seems to me that the procedures of this House are in the hands of the House. It is always possible for this House to do what it wants. If the noble Lord would care to indicate what amendment he would like to see, I am sure that with the agreement of the House nemine dissentiente, as the noble and learned Lord the Lord Chancellor said the other day, we could find some way of putting such a provision into the Bill.
However, if that is not possible, the sensible way to deal with the matter is to pass the amendment. The noble Lord could then set it right this afternoon in the other place. Either way, it seems to me that it is a very important reassurance for those companies that will be studying this Bill to know that it is not a seven-day delay. There is much opportunity for things to go wrong and for the situation to be made difficult during a seven-day period, whereas, if the reference is immediate or, in effect, immediate, people will feel pretty confident that the judgment of the commissioner will be the one that holds sway. With the commissioner being an independent judicial figure, I believe that that will give people a great deal of comfort.
I believe, therefore, that my amendment is important. It will cause the Chief Whip a minor inconvenience as regards this Bill making a brief reappearance in this Chamber, to general approbation, sometime tomorrow or, perhaps, the following day. Other than that, it should cause little inconvenience to get this part of the Bill right. In my view, it would make a great contribution to the overall effect of the Bill, as far as concerns the major players on the Internet.
With that in view, I have a few further questions for the Minister in the context of these amendments. First, am I right in thinking that the circumstances under which the Government envisage requiring keys come under two headings only, which might be called "trust" and "timeliness"--in other words, the first is the situation where they do not trust the person to provide plain text, and the second is where they need the information fast? Am I correct in thinking that those are the only two circumstances in which the Government envisage requiring such keys?
Secondly, on looking at the amendments that we have made to the Bill, it seems to me that the Government have an opportunity in another place to address the defect which both sides of the House seem to agree exists and which formed the subject of the
Lord Cope of Berkeley: My Lords, I shall speak, first, to the main amendment in this group, Amendment No. 26. It is good that an element of judicial oversight has been brought into the question of the disclosure of keys. It has been one of the most difficult and criticised aspects throughout our debates on the Bill that government agencies were acquiring the rights to require other people to give them keys.
That requirement has gradually been narrowed down a little during the proceedings on the Bill--notch by notch, as it were--and the safeguards have been increased. I have in mind, in particular, the new safeguard that keys shall be asked for only by direction of a chief officer of police, or the equivalent officer in Customs and Excise. Nevertheless, it was still the police who were going to make the decision. There are occasions when the time-scale would probably make that necessary and essential; for example, when terrorism and other types of very serious crime are being investigated. But, at the same time, for the police to approve such a requirement without any immediate oversight seems to be a disadvantage. Therefore, it seems to me that making the chief constable report to the commissioner that he has given such permission is an extremely important safeguard. That is particularly so when we consider the later amendments--Amendments Nos. 38, 39 and 40--which make it clear that the commissioner can make a report to the Prime Minister at any time.
A chief constable, an equivalent officer from Customs and Excise, or whoever, may require such a key. On learning about this a few days later, the commissioner may think that the officer concerned should not have done so in the particular circumstances. The fact that the commissioner can then report immediately to the Prime Minister that such action has taken place is a great reassurance. I think that will mean that in doubtful cases chief officers of police will obtain clearance in advance from the commissioner before requiring a key.
The commissioner will also be in a position to observe whether a pattern is developing in this regard, perhaps within a particular force or within the Customs and Excise. If he noticed several requests for keys, he could report that to the Prime Minister. It would take a determined chief officer of police not to think carefully before continuing with that course of action. More immediate judicial oversight is likely to prove more effective than the annual report of the commissioner--which, inevitably, is issued well after
I turn to Amendment No. 27 in the name of my noble friend Lord Lucas, which seeks to speed up the giving of the notification to as soon as possible, and not longer than seven days, after the giving of the direction to which it relates. That is a highly desirable amendment. I accept that it may not be perfectly drafted. It is always possible for amateurs such as my noble friend and myself to overlook some legal point when drafting amendments. I am sure that if the Government and the House wished, we could put that matter right straight away. I hope that the Minister will suggest that. The amendments seem to me to constitute an extremely valuable additional safeguard with regard to the most sensitive aspect of the Bill; namely, demands for keys.
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