Police and Justice Bill

moved Amendment No. 128: Page 34, line 13, leave out from ““3”” to end of line 14. The noble Baroness said: My Lords, I move Amendment No. 128 on behalf of my noble friend Lord Northesk. He has asked that I convey his apologies to the House. He simply cannot be present today due to other serious commitments. We covered most of the ground pertaining to the amendment in Committee and so I do not propose to dwell on too many of the underlying technicalities. I feel that I would not be able to and I am extremely grateful to my noble friend for providing me with a comprehensive speaking note. I also note that the Government have reformulated the paragraph in the shape of Amendment No. 129 in the name of the Minister. That ties the matter to Section 1 and Section 3 offences in the Computer Misuse Act beyond any doubt and to that extent it is welcome. Nevertheless, in the opinion of my noble friend, the substantive flaw of the provision, the likelihood test, remains. As my noble friend explained earlier in our proceedings, this equates to proscribing the supply and distribution of crowbars on the basis that they are likely to be used in the commission of burglary offences. Indeed, it is possible to envisage circumstances where the provision could be deployed to proscribe the supply and distribution of web-browsing and e-mail programs if only because they are more likely than not to be used in the commission of hacking offences. The problem here should not be underestimated. To state the obvious, as broadband and, thereby, always-on access to the internet becomes more pervasive, so there is an ever-increasing need for adequately secure and hack-free systems. In Committee the noble Earl, Lord Erroll, who is in his place, made the entirely appropriate point that that need is being serviced more and more regularly by remote access. In this context, as illustrated by my noble friend in Committee, there is a host of examples of software programs, often open source code, that can be used by systems administrators to test that the IT systems are secure, but that could also be used maliciously. They are, by definition, dual purpose tools. Frequently, those are downloaded as of need from trustworthy, that is to say quality assured, sites on the internet. However, because of the absence of legal certainty and clarity about how the likelihood test would be applied by the courts, an effect of the provision, if enacted, will be that trustworthy distribution sites of such software in the UK will be closed down rather than face the risk of possible prosecution. Indeed, there is some anecdotal evidence that that is already happening. Bear in mind that there is simply no way of telling whether any given program will be used more extensively by the good guys or by the bad guys—something which can, in any event, vary considerably over time. In consequence, system administrators and the like will have to source their software tools from less trustworthy sites, thereby running the all-too-common risk that they could include some hidden and, more likely than not, malicious, functionalities. In one rainy week on holiday in Italy, my husband and I played rather a lot of scrabble. If I had used that word, I think he might have challenged it, but I am sure my noble friend knows what it means. In effect, the provision, whether in the form of the current drafting or the amendment of the Minister, all but guarantees that the internet will be considerably less safe for UK users. That must be counterproductive and antipathetic, not only to the Government’s intention here, but also to their wider aspiration of making the UK the best place in the world for e-commerce. It is also worth contemplating what benefit would accrue were the provision to be enacted. As a generality, the vast bulk of criminal and malicious activity will be caught by the first arm of the clause, subject to the test of intent. Presumably, therefore, the likelihood test is intended to apply in instances where the internet is seeded with harmful, or even malicious, code for potential onward use as an adjunct to hacking activity, perhaps by ““script kiddies””—my noble friend is testing me here—““code monkeys”” and the like. Without delving too deeply—thank goodness—into the psychology of such individuals, it is highly unlikely that the provision would either prove a deterrent for them or that, in reality, the offence could be adequately investigated and so prosecuted in practice. In sum, therefore, the provision will almost inevitably do much more harm than good. In Committee, the noble Lord, Lord Bassam of Brighton, prayed in aid the Government’s adherence to the virtues of consultation. As he put it: "““We consult regularly, take on board the results of those consultations and try to reflect them where relevant in any necessary changes to legislation””.—[Official Report, 11/07/06; col. 608.]" We do not doubt the sincerity of this. Nevertheless, given that my noble friend has not found a single IT professional prepared to endorse the Government’s proposition here throughout the two-odd years it has been under consideration, it would be helpful if the Minister could flesh out how the Home Office perceives the industry’s attitude towards it. I am enormously grateful to my noble friend for his assistance with my speaking note. I hope it will enable the Minister to address the matter fully and I look forward to her reply. I beg to move.