Regulation of Investigatory Powers Bill — Offences — 8 May 2000

As amended in the Standing Committee, considered.

(2) In this section "relevant Commissioner" means the Interception of Communications Commissioner, the Security Service Act Commissioner, the Intelligence Services Act Commissioner or any Surveillance Commissioner.'.-- [Jane Kennedy.]

Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Sir Alan Haselhurst):

With this it will be convenient to discuss the following: New clause 3-- Investigatory Powers Commission --

1. The Investigatory Powers Commission may appoint such officers and servants as they think fit, including investigating officers, subject to the approval of the Secretary of State as to numbers and as to remuneration and other terms and conditions of service.

2. Subject to the provisions of this Act, the Commission may make arrangements for the regulation of their business.

We already have a Security Service Act commissioner, an Intelligence Services Act commissioner, a chief surveillance commissioner and ordinary surveillance commissioners. None of those appears to have an independent investigatory team available to them.

In connection with the two additional commissioners referred to in the Bill and mentioned by the Parliamentary Secretary, Lord Chancellor's Department, my right hon. Friend said:

I seems that the Government believe that commissioning should be a growth industry.--[ Official Report , 6 March 2000; Vol. 345, c. 782.]

Anything authorised or required by or under any enactment to be done by a relevant Commissioner may be done by any member of the staff of that Commissioner who is authorised for the purpose (whether generally or specifically) . . .

Question put and agreed to .

Clause read a Second time, and added to the Bill .

(a) with intent to impede access to protected information or the putting of that information into an intelligible form, he fails to comply, in accordance with any section 46 notice, with a requirement of that notice to disclose a key to protected information; and

(b) he is a person who has possession of the key.

(2) A person is guilty of an offence if--

(a) he fails to comply, in accordance with any section 46 notice, with a requirement of that notice to disclose a key to protected information;

(b) he is a person who has had possession of the key, but that key was not in his possession after the giving of the notice and before the time by which he was required to disclose it; and

(c) with intent to impede access to protected information or the putting of that information into an intelligible form, that he did not, before that time, make a disclosure, to the person to whom he was required to disclose the key, of all such information in his possession as was required by that person to enable possession of the key to be obtained.

(3) In proceedings against any person for an offence under this section it shall be a defence (subject to subsection (4)) for that person to show--

(a) that it was not reasonably practicable for him to make a disclosure of the key before the time by which he was required to do so;

(b) where the key was not in his possession at that time, that it was not reasonably practicable for him, before that time, to make such a disclosure as is mentioned in subsection (2)(c); and

(c) that as soon after that time as it was reasonably practicable for him to make a disclosure of the key or (if earlier) of sufficient information to enable possession of the key to be obtained, he made such a disclosure to the person to whom he was required to disclose the key.

(4) Except in a case where there is no authorisation for the purposes of section 47, in proceedings for an offence under this section a person shall have a defence under subsection (3) only if he also shows that it was not reasonably practicable for him to comply with the requirement in the manner allowed by that section.

(5) In proceedings against any person for an offence under this section it shall be a defence for that person to show that--

(a) at all material times he used due diligence to store the key which he had or had had in his possession; and

(b) that were the key was not in his possession after the giving of the notice and before the time by which he was required to disclose it, that he did before that time, make a disclosure to the person to whom he was required to disclose the key, of all such information to his possession as was required by that person to enable possession of the key to be obtained.

(6) Where a person is being proceeded against for an offence under this section, then at any stage of the proceedings, if evidence has been given of his having failed to comply with any requirement of a section 46 notice to disclose a key to protected information, the following evidence shall be admissible for the purpose of proving that he had an intention to impede access to protected information or the putting of that information into an intelligible form--

(a) evidence that he has or has had in his possession other information of value on grounds falling within section 46(3) or likely to be of value for purposes connected with the exercise or performance by any public authority of any statutory power or statutory duty; and

(b) provided that seven days notice in writing has been given to him of the intention to prove the conviction, evidence that he has within the [five] years preceding the date of the offence charged been convicted of any offence carrying a maximum sentence on conviction on indictment of five years imprisonment or more.

(7) A person guilty of an offence under this section shall be liable--

(a) on conviction on indictment, to imprisonment for a term not exceeding ten years or to a fine, or to both;

(b) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.'.-- [Mr. Heald.]

Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker:

With this it will be convenient to discuss the following: New clause 7-- Failure to comply with a notice to disclose a key to protected information --

A defendant who chooses not to give or call evidence may be convicted without any mens rea--

of the offence being proved against him.

If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.

reasonable grounds for believing that possession of the key is necessary to obtain access to the protected information or--

the putting of that information into an intelligible form.

not practicable; the key could be lost or no longer used, etc. Industry may have no choice but to place their keys with secure third parties and thus it seems to be a way of reintroducing key escrow.

I was the Minister who dealt with such matters and proposed key escrow, and I am sensitive to the fact that industry still has concerns about its coming in through the back door.

In our opinion, disclosure of the key in the first instance would make most industries feel their security has been compromised and this has implications for e-commerce, an environment where consumers require complete confidence in the security of service providers.

global processing and communications operations that used to be based in the UK (including petro-chemicals, pharmaceuticals etc as well as the City)

with intent to impede access to information or the putting of that information into an intelligible form . . .

Question put , That the clause be read a Second time:--

The House divided: Ayes 136, Noes 317.

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