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Lord McNally: My Lords, this matter continues to be of concern to industry. A brief from the London Investment Bankers Association refers to,


We have debated this issue many times, but industry is concerned that the transfer of a key will open up doubts about confidentiality, particularly for the members of the London Investment Bankers Association, who have wide and very confidential international responsibilities.

Lord Lucas: My Lords, I shall be popping up on several occasions in the hope that the message will wing its way from the box to the Minister to deal with the back end of the amendment that we lost. My understanding of what the Minister said at that time is, yes, there is a lacuna in the Bill; yes, if the police, or

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whoever, were in possession of protected information that they were not prepared to reveal to the subject of the notice, they could force a disclosure of a key; and that disclosure would not be subject to the Clause 51 safeguards. If that is the case, then this amendment is all very well but it will not achieve anything because there is a great, gaping hole in the Bill around the side of it.

I should like to know at some stage whether I have completely misconstrued the Bill and what the Minister said, or whether there is a problem and we should be looking at ways of dealing with it.

Lord Bach: My Lords, we are at Third Reading and we are dealing with amendments tabled for Third Reading; we are not at Committee stage. I shall reply to the amendment moved properly by the noble Lord, Lord Cope, and suggest why our amendment is to be preferred. Some background questions have been asked. Whether they should have been asked is another matter--but they have been and I shall do my best to respond to them.

As far as concerns Amendment No. 24, we are all on the same side. We can see exactly what the noble Lord is trying to get at. He is trying explicitly to include in considerations of proportionality any considerations related to the potential impact on a business. We do not think that his amendment is in the correct place in Clause 51. We believe our amendment will achieve the same effect by amending subsection (5) of Clause 51. He is quite right, the word "reputation" does not appear in our amendment as it does in his. That is because we believe the value of the reputation in this context lies in its value for business. I ask the noble Lord very gently if he will consider withdrawing his amendment in favour of ours, which I should like to move next in our proceedings.

The point made by the noble Earl, Lord Northesk, concerns information other than the protected information which is covered by a key. That danger led to Clause 51(5), which was inserted at the instigation of the noble Earl, Lord Liverpool. We are as confident as we can be in relation to the matters mentioned by the noble Earl. We know that there are concerns from a business point of view. We have met them as best we can. But I really do not feel that Third Reading is the time to go over matters that were debated fully and properly at the Committee stage.

The Earl of Liverpool: My Lords, I rise only briefly to express my regret--

6 p.m.

Lord Bach: My Lords, we are at Third Reading and the rules of Report stage prevail. I am looking to the Table to see whether I am right about that. The last thing I want to do is to stop the noble Earl speaking, but those are the rules.

Lord Cope of Berkeley: My Lords, as between the two amendments--the government amendment

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and my amendment--I am convinced by the Government's case. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bach moved Amendment No. 25:


    Page 58, line 40, at end insert ("and


(b) any adverse effect that the giving of the direction might have on a business carried on by the person on whom the disclosure requirement is imposed.").

The noble Lord said: My Lords, this amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 26:


    Page 58, line 40, at end insert-


("(6) Where a direction for the purposes of subsection (1) is given by a chief officer of police, by the Commissioners of Customs and Excise or by a member of Her Majesty's forces, the person giving the direction shall give a notification that he has done so-
(a) in a case where the direction is given-
(i) by a member of Her Majesty's forces who is not a member of a police force, and
(ii) otherwise than in connection with activities of members of Her Majesty's forces in Northern Ireland,
to the Intelligences Services Commissioner; and
(b) in any other case, to the Chief Surveillance Commissioner.
(7) A notification under subsection (6)-
(a) must be given not more than seven days after the day of the giving of the direction to which it relates; and
(b) may be given either in writing or by being transmitted to the Commissioner in question by electronic means.").

The noble Lord said: My Lords, I beg to move.

[Amendment No. 27, as an amendment to Amendment No. 26, not moved.]

On Question, Amendment No. 26 agreed to.

Lord McNally moved Amendment No. 28:


    Leave out Clause 51.

The noble Lord said: My Lords, with this amendment we should like to discuss Amendments Nos. 50 and 51. We are at Third Reading. The intention behind the amendment is to ask the Government even at this late stage to pause and think. Yesterday's New York Times said of this measure:


    "The measure ... would make Britain the only Western democracy where the government could require anyone using the Internet to turn over the keys to decoding e-mails messages and other data".

Throughout the proceedings on the Bill, and in the last gasp briefings we have received from the Federation of The Electronics Industry, the CBI, investment bankers and so on, great concern has been expressed that the powers in the Bill will have serious and detrimental effects on business. We want to be absolutely sure that the Government know that the gun is loaded and that it is the considered advice of industry that there are

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consequences to carrying through Clause 51 and Part III. While there are all the other benefits of the Bill, is there not time to pause and consider the implications of Part III for e-commerce and Britain's international standing within it? I beg to move.

Lord Howell of Guildford: My Lords, I know that noble Lords will not want to go over this crucial part of the Bill again and would not want to do so at Third Reading. However, the proposal in the amendments either to drop altogether or delay the introduction of Part III and certainly Clause 51 gives an opportunity to those who are deeply worried about the Bill to ask a final question before it passes from our hands.

We know--it was said at Report stage--that the purpose here is to impose national legislation on what is a global communications system. That is bound to create some limitations on what can be achieved. We also know--again it was said at Report stage--that technology is moving very fast in this area and may well render some of the provisions of the Bill ineffective almost before it becomes a statute. What worries me about Clause 51 is best put as a question to the Minister. What will happen if a handler of data traffic--a person or persons on whom a disclosure requirement is served--or an Internet service provider, when asked for the key, says, "I do not know where it is. I have no idea of its location"? It may be that messages are passing between a giver and receiver within United Kingdom jurisdiction, but it is perfectly possible, as we heard at Report stage, for the Internet service provider to be in Dubai, the application service provider to be in Bangalore and the key to be anywhere. It could be in Bahrain or it could be moving around. It might not be located in any national jurisdiction and therefore would not be available.

Clause 51(5) of the Bill directs its attention towards,


    "any protected information, in addition to the protected information in respect of which the disclosure requirement is imposed, to which the key is also a key".

That rings very loud warning bells. The experts and technologists, for good reasons or bad--probably for market driven reasons--will devise, and may already have devised, means by which the location of the key is just not possible. What will happen when the answer to the question, "Where is the key? You must provide the decryption key", is, "We do not know. We genuinely do not know where the key to these data lies. If you do not believe in the plain text and you feel it is justified that a notice should be served for the divulging of the key, I am sorry. We cannot help you. It lies without our jurisdiction and indeed perhaps without any jurisdiction"? How will that problem be solved?

People outside the House are already talking about a world in which the whole attempt to impose the spirit of Clause 51 and the related clauses will be rendered nugatory by the rapid advance in technology and may make our efforts in relation to this part of the Bill look rather ineffective and absurd.


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