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Lord McNally: This is a key point. I flipped through some papers that I received from Japan where people have gone to great lengths to guarantee and protect signature keys. They regard that as a key part of public confidence in commerce in this area. I thank the Minister for his reassurances on this matter.
The Earl of Northesk: I believe that I am satisfied with the Minister's response to my own amendments. There is slight confusion. As ever, I shall read Hansard further to inform me on the point. In the mean time, I beg leave to withdraw the amendment.
My amendment seeks to address the need for objectivity rather than subjectivity. The provision has the potential of imbuing the regime with uncertainty and an unwelcome lack of clarity. I might have preferred the noble Lord, Lord McNally, to have spoken to his Amendment No. 151, which I believe seeks to deal with the problem from a different perspective. None the less, I look forward to the Minister's reply.
Lord Bassam of Brighton: I shall deal with the entire grouping, if I may. There are a number of amendments in this group relating to the nature of notices served under Clause 46. Some of the government amendments which we have already discussed have an impact on these amendments. I should like, first, to set out the rationale behind the amendments in this group.
Government Amendment No. 149XA should be welcomed. The amendment is tabled expressly as a result of representations from industry. Many in industry have been concerned that, notwithstanding the constraint on service of notices, some "spoof" notices purporting to be under the Bill could be served on companies and, in this way, security of companies could be compromised. No one wants that. We are anxious to minimise the possibility of any such spoof notices. We believe that the requirement in Amendment No. 149XA--that the office, rank or
Amendments Nos. 149YA and 150ZA relate to the information that is to be on a notice served under Clause 46. These changes are consequential on the earlier restructuring of the balance between keys and plain text.
Amendments Nos. 150B and 158A are also consequential on the requirement, covered in the new clause tabled by the Government, that notices should be served on directors of companies or equivalent. As such, I hope that these, along with the other government amendments, will be welcomed by the Committee.
There are some outstanding issues from this group which I should address. Amendment No. 145 seeks to clarify that decryption notices can be given only in writing or by electronic means. I can see what the noble Lord is driving at. But I believe that the amendment is unnecessary. Our position on the form of decryption notices is this. They will be in written form. In time, we anticipate that, where necessary and applicable, they should be capable of being served electronically. I think that that is what the noble Lord seeks. But that is already catered for by the words in Clause 46(4)(a),
In another place, we amended Clause 46(4) to put on the face of the Bill further stipulations about the form a decryption notice should take. We have continued that process today. This is in response to industry concerns about the possibility of receiving spoof notices. There is no intention that notices should be given verbally with no written back up. As the Government said in another place, there is clearly a need for consistency regarding notices, for the sake of those authorising and serving notices and for the sake of those receiving them, be it individuals or business.
There should be an agreed format to notices. How that looks in practice is properly to be the subject of consultation with industry, of course, and others. The Government want to get this right in order to achieve clarity and best practice. It will be taken forward in the public consultation on the code of practice for Part III, which will suggest an example of the notice.
Amendment No. 146, tabled by the noble Lord, Lord McNally, seeks to ensure that there should also be a record of the notice having been received. I do not argue with the intent of that amendment. I question whether it is necessary. If notices are not received, then nobody is under any duty to comply with them. If there were to be a prosecution for non-compliance, the prosecution would have to prove that the notice was duly served. Therefore, it is in the interests of law enforcement to be able to show that the notice was indeed received. For these reasons the Government believe that what the Bill currently stipulates is as much as is necessary.
The Government believe that the important requirements are already covered by subsection (4) of the clause as the Government propose it should be amended. It is not believed that the addition suggested in Amendment No. 146A will add to the verification process.
Amendment No. 148 seeks to ensure that the notice specifies which of the purposes listed in Clause 46(3) is applicable. That is certainly how the Government intend notices to be framed. That will be clarified in the code of practice.
The Government do have some sympathy with the intention behind Amendment No. 151. It is the intention of the Government that notices should be served in line with the guidance in the code of practice. There may, however, be some circumstances in which it is not possible, or not possible precisely to follow what is set out in the code. The Government undertake to consider the matter further to explore whether there is any extra reassurance that can be offered on the face of the Bill.
Amendment No. 155 seeks to ensure that where material is disclosed to an individual who is not the person giving the notice, that person should be in the same category of person as the person giving the notice. It is believed that that will remove a degree of flexibility which will be important.
Take for example the Technical Assistance Centre: where keys are to be demanded, it may be that secure transmission conditions require that the key be disclosed direct to the Technical Assistance Centre rather than the person giving the notice. Staff at the Technical Assistance Centre will be selected for their technical proficiency and their security classification rather than for the rank which they hold in a particular organisation. It is believed that the stricture required by Amendment No. 155 may limit the flexibility required in terms of secure transmission to the TAC, and for that reason it is resisted. It is to be hoped that it can be agreed that the primary objective here in the rare cases where keys are demanded is that there will be transmission. That is the objective.
I have outlined the reasons behind the Government's amendments in this group. I have also outlined why the Government do not feel able to accept the amendments of the noble Lords opposite. In one case, the offer has been made to consider the matter further. In other cases, the intent of the noble Lords' amendments is, I believe, already met by those tabled by the Government.
In the light of those considerations, it is to be hoped that noble Lords will feel able to withdraw their objections. I commend the Government's amendments to the Committee and resist those tabled by Members opposite.
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