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Lord Bassam of Brighton: My Lords, I was initially slightly dismayed to see Amendment No. 28 on the Marshalled List. However, it is probably healthy that we should have this debate one more time, and I thank the noble Lord, Lord McNally. It may be useful to bring the amendments tabled by the noble Lord, Lord Lucas, into the debate, as they cover similar territory. The first of the noble Lord's grouped amendments

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seeks to excise the circumstances in which keys can be required; the second seeks to delay Part III of the Bill. They go to the heart of the debate.

I think the noble Lord, Lord McNally, is trying to say that there should be absolutely no circumstances in which the authorities might be justified, or even permitted, to disclose a key or password. That is the stark meaning of the noble Lord's amendment. On a fundamental level, that cannot be right.

The circumstances under which keys can be demanded are a significant matter. We have redrafted Part III of the Bill in terms of a disclosure requirement. As I said, this emphasises clearly on the face of the Bill that disclosure of plain text is what we are after. That is what it is all about. We have rehearsed the reasons why there may be special circumstances in which keys may be required. We have added many different types of safeguards to the Bill to ensure that the keys are demanded only under very strict conditions. Underlying all this is the assertion that it must be possible in some circumstances to demand keys, for very good reasons.

I have no qualms about admitting that the majority of such instances will be cases of individuals suspected of involvement in criminality. There are those who have suggested that the requirement for keys should be limited to individuals alone and should never apply to business. I have no difficulty in reiterating how unlikely it is that keys will ever be asked for from any legitimate business. But, for as long as it remains possible that certain individuals or businesses may involve themselves in corrupt or criminal activities, it will be necessary to retain the power to demand keys in special circumstances.

The party of the noble Lord, Lord McNally, is strong on protecting individual rights--and that means, of course, rights for everyone. I am not sure how the amendment squares with that position since it has the effect of removing a potentially significant weapon which is needed to tackle crime of all descriptions. Society as a whole suffers if the police do not have the powers they need to do their job. Their powers are currently deficient in dealing with the criminal use of encryption. The reality is that there is currently no explicit disclosure power in UK law, nor a power to require anyone to disclose a key or password. This is the gap that we are plugging with Part III of the Bill by providing for a self-standing power requiring proper authorisation and subject to its own specific safeguards.

I am not sure whether the noble Lord, Lord McNally, has discussed this amendment with any chief constable, with the directors of the National Crime Squad or the National Criminal Intelligence Service, or with any of the child protection groups which have an interest in this area. They have a legitimate voice in this debate. The amendment in no way reflects that interest. No one seems to have taken on board the demands of the law enforcement agencies or of legitimate lobbying interest groups.

At Third Reading in another place the Government were criticised for not giving law enforcement the powers it needed in the Bill. We did not believe that the

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criticism was justified. But if there is a sure-fire way of ensuring that law enforcement is effectively hamstrung over encryption, it is by pursuing this amendment. I believe that the noble Lord, Lord Cope, recognises that there may be occasions when keys are required. In Committee on 28th June, when we moved amendments to put greater prominence on the face of the Bill to the disclosure of plain text, the noble Lord, Lord Cope, proposed similar wording which he said would:


    "put plain text in the front line and ... allow applications for a key only when absolutely necessary".--[Official Report, 28/6/00; col. 966.]

We had a useful debate around that principle. This, I believe, is the position we are currently at in regard to Clause 51.

In the light of the amendment, I have reflected on a couple of remarks made previously by the noble Lord, Lord McNally, about Part III in what has been, as I have said, a wholly constructive process. In Committee, the noble Lord said, at col. 955:


    "I am not one of those who believe that the new cyberspace technology is a zone that should be outside the rule of law. I still have a sufficiently strong confidence in parliamentary democracy to believe that, as a necessary protection, all parliaments should be able to construct a framework within which people conduct their activities".

I agree entirely with those sentiments. Part III has been improved immeasurably by discussion in this House. But this amendment threatens to undo that good work. In fact, it would lead to what the noble Lord said should not happen: it would effectively mean that some criminals could operate with impunity. I am not sure that that is what the noble Lord desires.

The noble Lord, Lord McNally, also said in Committee, at col. 958:


    "People out there are telling us that this new technology is so footloose and fancy free that it is beyond the powers of parliamentary democracies to control. I put forward the strongly held view that it is not".

Again, I could not agree more. But my point is that the effect of the amendment would be that some criminals would indeed be free from any meaningful effect of the rule of law. If that is so, we shall have failed to carry out our democratic duty.

At its heart, the Bill deals with powers that are necessary for keeping society as a whole safe. I have referred to that already. It is not a trite remark. It is right that these powers are properly regulated. The power to access keys in Clause 51 is closely restricted. I am not at all sure that people who may not have taken a deep interest in the Bill but who nevertheless have every right to live in a society where the police have the powers they need to tackle crime will understand, let alone appreciate, a decision by this House to damage law enforcement's powers in the way proposed by the amendment.

We are working, together with industry--both on the face of the Bill and with the codes--towards narrowing down as far as possible the circumstances under which keys can be demanded from business and to ensure that this is readily understood by everyone

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who may be in a position to demand keys. It is important to remember that when keys are asked for from anyone, the recipient of a notice is free to decide which key to disclose. The choice lies with them. What I do not think we can do is say that it will never be possible to demand keys altogether. In the case of the individual, this would remove a significant weapon against paedophile crime, among others. The Government believe that the power must remain and there is no more that they can give on this issue.

The Bill was sent here by another place with the wish on the part of some Members that it should be improved. At Third Reading in another place Mr Simon Hughes, spokesman for the party represented by the noble Lord, Lord McNally, voted for the Bill but said that he hoped your Lordship's House would deal with his party's one remaining significant objection to Part III. That objection was not about the principle of access to keys but the accusation that the offence under what is now Clause 53 unfairly reversed the burden of proof. We have fixed that, and a good deal else besides. I am grateful to all noble Lords for their part in that process.

I turn to Amendments Nos. 50 and 51. I am grateful to the noble Lord, Lord Lucas, for raising this matter and shall endeavour to answer his "lacuna" question. These amendments are fairly straightforward. However, it is worth informing the noble Lord about our aspirations as to implementation of the Bill because it has a bearing on the point which lies at the heart of the amendments. The priority for implementation rests in Part II and, to a very similar extent, Part I of this Bill. We believe that it is necessary to implement the provisions of Part II before the Human Rights Act comes into force on 2nd October of this year so as to provide reassurance that the daily surveillance operations and use of informants by the police, among others, can continue in a way that is entirely compatible with the requirements of the European Convention on Human Rights. We view that as an imperative and shall make every effort to ensure that Part II can be implemented to that timescale.

We have similar aspirations in relation to Chapter I of Part I of this Bill. The oversight provisions in Part IV are required to support any one of the other three parts of the Bill. For those reasons, we shall work hard to establish the oversight provisions in time for implementation of the Human Rights Act.

There remains the implementation of Part III, which is the specific object of the noble Lord's amendment. Part III involves new provisions with which both law enforcement and industry must come to terms. We need to conduct further work on the code of practice for Part III in conjunction with those in industry. Further, we need to ensure that all those who may impose a disclosure requirement, or the requirement for a key, are fully aware of the implications of what they do. There are powers in the Bill for circuit judges, among others, to impose such requirements. We must ensure that a training package is implemented for each judicial figure.

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In short, there is a considerable amount of work to do before Part III of this Bill can be implemented. We shall take note of the growing menace of the criminal use of encryption and proceed as fast as possible to educate all those who may be affected in one way or another by these provisions. However, this is a considerable workload. I do not believe that it will be possible to implement Part III this calendar year. At this stage we believe that we may be a considerable way into the next calendar year before Part III can be implemented. For this reason, I suspect that the aim of the noble Lord's amendment will be achieved simply through the enormity of the task that lies ahead of us. We do not want to limit ourselves to that stipulation on the face of legislation. We aim to monitor the criminal use of encryption as we go along, and that may alter the timescale. Further, it is possible that our arrangements may be put into place more speedily than seems likely at present.

Finally, I do not believe that if a delay of this kind is stipulated on the face of the Bill industry will be reassured. The real reassurance for industry is that we make progress and implement this legislation and it finds that the threats to its security, which we believe have been more imagined than real during the passage of this Bill, are illusory. The best reassurance to industry is to start this regime and let all see that it does not represent the threat that many fear. To that extent, we do not want to limit ourselves to a particular time frame.

A number of questions have been asked which I believe deserve answers. The noble Lord, Lord Howell, asked what happened when people did not know where the key was. The simple answer is that if they do not have it and cannot disclose it that is the end of the story. In response to a question put by the noble Lord, Lord Lucas, to which he has properly returned on a number of occasions, effectively keys are required by virtue of Clause 53. In those circumstances, Clause 51 does not apply. This is not a lacuna but an inevitable consequence of two facts: first, that the person may not have the protected information; secondly, that it may not be possible to show the individual the information for reasons of secrecy. Usually, that will be possible but in some cases it may not be. The situation described by the noble Lord is one in which the person does not have the information and it is not possible to show it to him. The noble Lord is concerned principally with businesses. It would be very unusual for a key to be required in those circumstances. The circumstance in which there is a withholding of information from the recipient of a notice, especially where the individual is a large or small business, is extremely unlikely. I believe that that should give the noble Lord sufficient reassurance.

The debates on these parts of the Bill have been very constructive. The Government understand the sensitivity of the issue of keys and access to them. I have sought to demonstrate throughout that the Government see very limited circumstances in which a key will be demanded. Plain text will always be preferable, but there will be situations in which it is clear that there is criminality at the root of it. We need

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access to keys in those very tightly constrained circumstances. I believe that we have clarified the narrowness of those circumstances beyond doubt.

Clearly, it is time to draw the debate to a close. However, I urge the noble Lords who have tabled these amendments not to press them. I believe that we have answered the questions put to us.

6.30 p.m.

Lord Swinfen: My Lords, before the noble Lord sits down, he did not answer the question about self-incrimination. If a person has, or is thought to have, possession of a key and fails to provide it, as a defence will he be able to exercise his right not to incriminate himself?


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