My Lords, it has been a very good debate indeed. When I first saw this grouping, my heart sank: the idea that we should be able to encompass all that within the space of just over an hour seemed a bit beyond all of us, however skilled and experienced we were, and whatever background we were able to bring to the debate today. I agree with both noble Lords who observed that we have an expertise around here that is very unusual and extremely helpful in trying to drill down into some of these issues.
The good thing that has come out from this debate, which was summed up very well by the noble Lord, Lord Kamall, is that we are now beginning to address some of the underlying currents that the Bill as a boat is resting on—and the boat is a bit shaky. We have a very strong technological bias, and we are grateful for
the masterclass from the noble Lord, Lord Allan of Hallam, on what is actually going on in the world that we are trying to legislate for. It leaves me absolutely terrified that we are in a situation where we appear to be trying to future-proof, possibly in the wrong direction. We should be very careful about that. We will want to reflect on the point he made on where the technology is driving this particular aspect of our social media and search engine operations.
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The Bill is very wide ranging and, therefore, the amendments must necessarily follow it. But, in this group, we seem to be doing three things: we are trying to recognise whether there is a problem with encrypted messaging, and its relationship to security on the one hand and privacy and human rights on the other. I am very pleased that we are doing this, but I am not quite sure that we are in a position to make long-lasting conclusions. Like everybody else, I think that the burden falls on the Minister to convince us that he has reached the right place in the consideration of this and that his proposals will be right for the present day, let alone the future.
The noble Baroness, Lady Stowell, was right: we need to be very clear what the Government are trying to do here. I am afraid that I am not convinced that I know what it is. I put it to the Minister that he should make it very evident up front. This section of the Bill, and the way that we have been grouped into discussing it—because there are other things that we will need to come back to that relate to it—will need to be convincing. At the moment, I do not think that it is.
I say that because, if you go down where the Bill is trying to get to, it is very odd indeed that Ofcom has the powers to look at the messaging of private individuals and that the same body is also regulating. In other words, Ofcom is expected to be both gamekeeper and poacher. The points made around the Chamber on this issue are unanswerable. In the offline world, we have a structure that works through RIPA, which seems an exemplary model. I have heard the Minister say in private meetings that the procedures which will be in place in Ofcom will replicate that in every way and that there should be no concern about it, but the problem is the fact that it is the same body that is doing it. Enough has been said to make a very good case that at the very least, if we go ahead on the basis of what the Bill says, the decisions on whether or not the technologies can begin to peek into the encrypted world need to be authorised by an external body at a judicial level, and that it should follow the RIPA model, which has stood the test of time and seems to work very well and to everyone’s satisfaction. That is my first point.
My second point is that if we are to go down a technological route, we have to be certain that it is necessary; I worry that it is in advance of where we perhaps need to go, and that having a bit more time before it comes into place might be a way forward. I think we have heard enough from those who have written in and in the meetings we have had that this does not seem to be a hotspot for the police, who will have responsibility for doing quite a lot of the legwork
on this. They seem to have powers which they could use to get to where they need to be in order to make sure that the crimes being commissioned or committed can be investigated and that those responsible are brought to justice. If that is the case, why are we putting in this extra step? Again, I do not have the confidence that the Bill is going in the right direction here.
We can add to that some of the technological issues, which are as important. If we have a technology capable of carrying out the inquisition of encrypted material in a way which will be satisfactory as defined by the legislation, is there not a risk that we are simply opening up the whole process to hackers and those who might be able to do more harm than good? One representation we had said that the requirement under Clause 110 to use accredited technology to identify CSEA and/or terrorism content, whether, in the words of the Bill,
“communicated publicly or privately by means of the service”,
means that a currently secure platform check and a scan of users will be opened up. That proposal imposes the decryption of something that is encrypted, which cannot be right. That would open up too much of a risk for those who are, as we have heard, in many ways and in many parts of the world dependent on encryption to carry on doing the things that we want them to do. The ability to hijack this type of technology is a worry which I have not seen reflected in any of the discussions we have had with the Government on this point.
Finally, I know this is unpopular as far as the Government are concerned, but is there not a concern that we are running a coach and horses through some of our well thought-through and important issues relating to human rights? The EHRC’s paper says that the provisions in Clause 110 may be disproportionate and an infringement of millions of individuals’ rights to privacy where those individuals are not suspected of any wrongdoing. This is not a right or wrong issue; it is a proportion issue. We need to balance that. I do not know if have heard the Minister set out exactly why the measures in the Bill meet that set of conditions, so I would be grateful if he could talk about that or, if not, write to us. If we are in danger of heading into issues which are raised by Article 8 of the ECHR—I know the noble Lord opposite may not be a huge supporter of it, but it is an important part of our current law, and senior Ministers have said how important it will be in the future—surely we must have safeguards which will protect it.