Computer Misuse Bill
As amended (in the Standing Committee), considered.
New Clause 2
Search Warrants For Offences Under Section 3
To move the following Clause:—
'(1) Where a justice of the peace is satisfied by information on oath given by a constable that there are reasonable grounds for believing—
(a) that an offence under section 3 above has been, is in the process of being, or is about to be committed in any premises; and (b) there is reasonable cause to believe that any person has in his custody or under his control or on his premises anything which there is reasonable cause to believe has been used, is being used, or is intended to be used to commit an offence under section 3 of this Act;he may issue a warrant authorising a constable to enter and search the premises, using such reasonable force as is necessary.
(2) A warrant under this section—
(a) may authorise persons to acompany any constable executing the warrant; and (b) remains in force for twenty-eight days from the date of its issue.
(3) In executing a warrant issued under this section a constable may seize an article if he reasonably believes that it is evidence as aforesaid.
(4) In this section "premises" includes land, buildings, moveable structures, vehicles, vessels, aircraft and hovercraft.'.—[Miss Emma Nicholson"]
I beg to move, That the clause be read a Second time.
With this it will be convenient to discuss the following: New clause 3—Warrants for the surveillance of telecommunication traffic—
'(1) A justice of the peace may issue a warrant requiring the person to whom it is addressed to mount surveillance of public telecommunication traffic as described in the warrant, and to record its contents; and such warrant shall require the person to whom it is addressed to disclose all the recorded material to police in such manner as described in the warrant.
Amendment No. 9, in clause 14, page 8, line 36, at beginning insert(2) A warrant may only be issued by a justice of the peace:
(a) after an application supported by an information in writing, has been made by a constable, and (b) in pursuit of sections 2 and 3 only of this Act, and (c) a warrant issued by a justice of the peace shall be restricted to the surveillance and recording of computer transmissions only.'.
Amendment No. 3, in line 36, leave out 'justice of the peace' and insert 'circuit judge'. Amendment No. 5, in line 38, leave out'Subject to subsection (IA) below,'.
Amendment No. 6, in line 40, leave out'or is about to be'.
Amendment No. 10, in line 43, at end insert—'or is about to be'.
Amendment No. 18, in line 47, at end insert—'(1A) The power conferred by subsection (1) above may be used only in circumstances in which—
(a) The nature of any material or signal transmitted from or to the premises in respect of which the warrant is sought gives reasonable grounds for believing that an offence under section 1 above has been committed in the premises in respect of which the warrant is sought; and (b) more than one person resides or is employed at the premises in respect of which the warrant is sought.'.
Amendment No. 16, in clause 16, page 11, line 4, leave out 'The reference in section 14(2)' and insert—'but does extend to searching the contents of a computer for evidence of the offence aforesaid, albeit that evidence may be amongst material of the kinds mentioned in section 9(2) of the Police and Criminal Evidence Act 1984.'.
Amendment No. 7, in clause 17, page 11, line 37, at end insert—'In section 14—
(a) the reference in subsection (1) to a circuit judge shall be read as a reference to a county court judge; and (b) the reference in subsection (2).'.
'; and an individual cannot be authorised to access a computer by a warrent served under section 3 of the Security Services Act 1989'.
I shall speak to new clauses 2 and 3 amendment No. 18, which stand in my name. That does not reflect upon the other amendments which have been grouped with my new clauses and amendment, which have been tabled by other hon. Members.New clause 2 seeks to place a provision in the Bill for search warrants for viruses and for other amusingly named irritants which can be put into computer systems and which, as we all know, can cause considerable problems for their users. Current legislation has not yet caught up with the age of information technology. That is why the Bill is so welcome. I congratulate the promoter—my hon. Friend the Member for Romsey and Waterside (Mr. Colvin)—on the excellence of the work that he has already done. I shall make my contribution in the spirit of getting the Bill through the House on Report this morning so that it may make its way to another place. I do not do so in any delaying sense. It would be wrong for me, however, to miss the chance of warning the House of the deficiencies of the Bill and about the concerns which Scotland Yard and I have that the Bill as it stands will be unenforceable in any practical sense of the word, and may turn out to be a short-term measure unless it is amended rapidly. Alternatively, there will have to be a follow-up Bill, which I hope will come from the Government, to put this Bill right. As we know, the police have been struggling for a long time to combat computer-related crime with existing legislation. There has been some success under the Criminal Damage Bill 1971. Perhaps one good reason for the Bill coming before the House is the failure of the Forgery and Counterfeiting Act 1981 to offer the police any help. Large losses due to computer fraud have been reported by the CBI and the City. Although those figures cannot be verified—the police cannot keep proper records, as so much of computer fraud does not come within current criminal legislation—the number of cases being reported to the police is increasing all the time. Weapons are badly needed to combat new forms of crime. Having set the scene, I turn directly to new clause 2. I shall give a typical example of why it is badly needed. Let us imagine that the owner of a small shop employs three staff to look after his customers and to control the stock records. All the stock records are on a computer system and the staff have authorised access to the computer. The three staff naturally use it daily. Let us suppose that one of them does not have the salary that he believes he should enjoy, and he therefore becomes disgruntled. Unknown to the rest of the staff, but in a normal scenario in today's world, he has a small computer of his own at home, and on that machine the creates a "time bomb". That is a small piece of programme and a few instructions that are destructive of his employer's system. The term "time bomb" is used to describe a piece of destructive programming which takes effect on a particular date. The employee, in this context, copies the time bomb on a floppy diskette, takes it to his place of work and inserts it on to the hard disk of his employer's computer. That is not a difficult thing to do. On a pre-set date, his small piece of programme is triggered and it wipes out all the records on the employer's computer. Of course, the employer has a back-up for his data in the grandfather-father-son sequence, but the employee uses his employer's computer to delete that as well. There is a financial loss to the shopowner, who must revert to his paper records for his stock keeping. He has to call in an outside computer programmer, who discovers the time bomb, disposes of it and inputs the paper into the computer to restore its files to the orginal condition. If it is a small shop, it would cost the shopkeeper the fees for couple of day's work for a computer programmer—perhaps £480. Programmers are quite cheap, at about £30 an hour, and he would need to do 15 or 16 hours work. The loss is equivalent to about a half-day's taking. However, it has caused the shop owner great anxiety and he is concerned that it might happen again. The shop owner calls in the police to discover which member of staff is responsible so that he can be prosecuted. Of course, the police also do not know who is responsible, and they mount an investigation. None of the staff has a criminal conviction. They all have track records as reliable and trustworthy employees. The police interview the three members of staff, who all deny the offence. The police later discover that one member of staff is attending an evening course on computer programming. They then receive an anonymous telephone call from a man claiming that that same member of staff has a computer at his home address. The next day, that same member of staff complains that his salary is not high enough, and he asks for a rise. It is obvious that one of the three staff has committed the offence. One of them is attending a computer course, but although the police have been told that he has a computer at home, that cannot be verified. He has denied the offence, but he is a suspect. It is probable that evidence of a time bomb would be found on his home computer. The police decide that they have reasonable grounds to believe that they would find that evidence if they searched his home address. Of course, this is a hypothetical case. Let us assume that the Bill has already become an Act. The police look to the Act for the power to obtain a search warrant. Under section 14, they can apply for a search warrant if unauthorised access has been gained to the computer—but the employee in question is authorised to use his employer's computer. In addition, the power of search is restricted to searching the place where the offence took place, which is the shop. The police can find no power in the Act to search the suspect's home address to find evidence of a time bomb. The police look to other legislation for the power to search, because without a search warrant they cannot succeed. Section 6 of the Criminal Damage Act 1971 would have given the police the power of search, but section 3(6) of the Computer Misuse Act has removed that power as the offence is no longer construed as criminal damage. The Police and Criminal Evidence Act 1984 does not provide the power of search, because no serious arrestable offence has been committed. The police could search the home address if they first arrested the employee. However, the employee has denied the offence and the police have no evidence to the contrary. They are unhappy about arresting the employee in the hope of finding the necessary evidence later to justify the arrest. That is a perfectly proper stance for the police to take. It would not be proper for the Computer Misuse Act to encourage the police to arrest someone purely because they believed that there might be a possibility of finding evidence. However, the Act offers them no other route. Faced with that problem, the police might write to their local Member of Parliament asking his advice about whether they should make the arrest. After all, it is the House that has given the police that ethical and moral problem. It is difficult to know what advice the local Member of Parliament should give the police. 9.45 am Do we really want to encourage the police to arrest someone on flimsy grounds of suspicion, so that they might later obtain the necessary evidence? The evidence might not be found. The police suspicions may be incorrect. New clause 2 would solve the problem and provide the police with a lawful and proper means to obtain a search warrant. The home address could be searched without having first to make an arrest. Evidence might then be found to justify making an arrest that deprives the suspect of his liberty. Would not that be a more appropriate way to deal with the matter? I accept that this House does not want to offer the police further search powers—or, indeed, any powers—unless it is absolutely necessary, but the alternative is even more worrying. It may not impinge upon our consciences today, but it will impinge heavily upon the police if they do not have the additional power of search at the home address because, if they wish to pursue the crime, as we have asked them to do, they will be forced to make unnecessary arrests on flimsy grounds. It is a matter of some gravity that I believe is best addressed by new clause 2. New clause 3 deals not with the powers of physical search, but with the powers of electronic search. It seeks the power to obtain warrants for surveillance. It is a difficult and troublesome matter. I draw the attention of my hon. and learned Friend the Minister to the Council of Europe Legal Affairs Committee directive "Computer-related crime", which will come into effect in 1992. It contains the recommendation adopted by the Committee of Ministers of the Council of Europe on 13 September 1989 and the report by the European Committee on Crime Problems, Strasbourg, 1990. The problem may well come before the Minister, even if he and the House do not wish to examine it properly within the context of this Bill, although that is exactly where it should be examined. I accept that the vehicle of a private Member's Bill is fragile, and perhaps this heavyweight debate is too much for it to bear. That strengthens the view of myself and many others that this should be a Government Bill, so that we could discuss all related matters freely and easily. It is a highly related matter and an acutely difficult topic, but we should not duck it in the Bill. No one would deny that cases of tapping are notoriously difficult to investigate. Scotland Yard's computer crime unit has been attempting to investigate such offences since the unit's inception in 1985. Its experience has been that the hacker often works alone—perhaps from his bedroom at home—on a personal computer, using the telephone line to communicate with other computers. The hacker can also use the international telephone network—but because that is expensive, he usually gains access first to a local computer, from which to bounce off his transmissions to other computers, which keeps his own telephone bill to a minimum. The hacker often makes his overseas telephone calls through a third party's computer line, whose owner then incurs the call costs. The evidence of any offence that is committed travels along the telephone wires. The problem confronting the police is how to recover that evidence. The Strasbourg directive points out that there are problems in respect of
The fuss and bother, and the fears and concerns rightly expressed by right hon. and hon. Members in respect of freedom of information and personal privacy, do not apply to digital transmissions of computer data, which merely happen to use the same route. It is not at all the same thing as settling down to listen in to a personal telephone conversation. If the House is as concerned about the tapping of telephone conversations as the Committee considering the Bill was led to believe, surely it should address itself to the prevalence and ease of purchase of tiny devices with which any member of the public can tap into virtually any unscrambled telephone conversation in the United Kingdom. If we are not fussed about that form of listening in to our fellow citizens' telephone conversations, why are we ultra-sensitive and over-concerned about monitoring digital transmissions of computer data, which are totally and wholly incomprehensible to any human ear? I suggest that it is merely because computer data employ as their transmission medium the same telephone lines that the rest of us use to exchange knowledge. It is the monitoring of human conversation that should concern us, not that of computer data. The stance may be taken by my right hon. Friend the Minister, by the Bill's promoter and by other right hon. and hon. Members—though it is not my stance—that we need not worry about monitoring telephone data transmissions at this time—but if we duck that issue today, it will be put back on our plates tomorrow by the European Community, which considers it of immense importance, particularly in relation to the European convention on human rights, to monitor developments and an issue that should be considered further with a view to harmonising the various coercive powers that exist."the powers of entry and search premises, the powers of seizure, the duty of witnesses to testify, the duty of witnesses to produce evidence, and the problems of wire tapping … In most countries it is questionable whether or not the above-mentioned traditional coercive powers are adequate for all aspects of investigations in computerised environments, since most of the traditional provisions … were created with respect to tangible property or telephone communications between human beings and not expressly designed for intangibles and the special needs of the computerised information society."
My hon. Friend referred earlier to the Council of Europe. Was that a slip of the tongue? Did she really mean the European Commission?
I was referring to both bodies, in respect of a joint initiative. The issue is one that concerns all countries of Europe, North America, Australia, and many others throughout the world—including the USSR, which now has its own hackers club.In the United Kingdom, it is possible to monitor digital transmissions and capture evidence only with the use of a data monitoring cartridge. It is specially designed to record computer data, not human speech—hence the validity of my point that there is an enormous difference of perception as to whether the police should be given monitoring powers in relation to digital transmissions. The data monitoring cartridge identifies and records only computer data, not human speech. It was strongly argued in Committee that the police can already obtain the permission of a victim to trace incoming calls and to install a data monitoring cartridge on his line. That is comparable to the arrangements relating to obscene telephone calls. If I were the victim of such calls, I could ask the police to tap my line. The problem for the police in respect of digital transmissions is proving the source of the calls. In the case of international data transmissions, are the police to request the international call carrier to trace calls made to the United Kingdom, and then the carrier in this country to complete the trace to the call's origin? Unfortunately, that is technically impossible. Britain has two main types of telephone exchange, Strowger and system X, of which the first is the older version that uses non-automatic switching. One encounters vast problems in respect of that type of exchange. Another problem is that detection relies on the carrier agreeing to assist the police. The major telephone communications carrier in this country is British Telecom plc, but now we also have Mercury—and I am personally in favour of breaking up that duopoly, but that is by the bye. Unfortunately, British Telecom has often proved unwilling to assist the police in computer cases, despite comments to the contrary, I justify British Telecom's stance on the ground that it is a private company and no longer a state monopoly, so it is entirely within British Telecom's capacity and good judgment whether or not it wishes to assist the police. Why should it do so, when it can no longer be coerced into co-operating because it is a state monopoly? The corollary is that British Telecom often does not assist the police, and that causes the authorities great problems if they are not given powers of search and monitoring of transmission lines by this Bill or by any other legislation. I believe that British Telecom's reluctance to co-operate is due not least to the cost incurred in mounting such an exercise, with no prospect of financial recompense. I give an example of the difficulties that British Telecom's intransigence—understandable though it may be—cause to the police. In respect of an investigation that is currently under way at New Scotland Yard, the solicitor of the victim concerned is even now seeking an audience with the Home Secretary to discuss the appalling situation in which the police find themselves because, over a period of months, British Telecom plc has not bothered to reply to police requests for assistance. It is often known who hackers are and where they live, but it is never know who will be their next victim. In those cases, the victim cannot authorise the police to monitor his telephone line because he does not know whether he will be, or has been, attacked. The proper place for the data monitor cartridge is on the hacker's telephone line, as it would give crucial evidence about the hacker's activities, recording the date, time, length and duration of the call and who the victim is. Without that method of gathering evidence, the police have little, if any, chance to catch those responsible. Let us consider the cuckoo's egg. Dr. Clifford Stoll, who met me in my constituency the other day, told me that, when he started to track the West German hackers who got into at least 20,000 security computers in NATO and into many other industrial secret places, the Federal Bureau of Investigation told him that, if the hackers came from the United Kingdom, he would have no chance of tracking them down because he would not get the required co-operation. 10. am We live and trade in the 20th century. In this fast-moving age of information technology, we need to track down criminals who use 20th-century methods. The personal computer was invented in 1984—the computer was probably a British invention—and it is a sadness to me that we lag so far behind in methods of computer surveillance. Millions of people now own and use personal computers. Computers are on the increase. It is a sunrise industry, and hardware and software costs are dropping all the time. In a free-market system, more and more people—thousands of millions—are beginning to use computers. It is logical to infer that computer crime will increase in proportion to the number of computers in use. If the Bill is a serious piece of legislation, the basic principle of gathering evidence must be examined in detail. If computer hacking is to be an offence, we need to allow the police a method of enforcing such legislation. In the United Kingdom, the only realistic way to do so is to allow them to be granted a warrant from a court to allow such evidence to be obtained. If a serious crime, as defined under the Interception of Communications Act 1985, is committed, it is true that, despite the Computer Misuse Bill's weaknesses, the police can already make an application to the Secretary of State for a warrant. Does the House not realise that evidence thus obtained cannot be used in court, because the 1985 Act was not designed to capture digitalised data transmissions for computer crime? It was designed for security purposes. Thus, the 1985 Act puts the police in a hopeless situation if they want to make the Bill stick. The paper produced by the Council of Europe, related to the European Community's work on the subject, also discusses the procedural law problems in full. New clause 3 offers the police a practical method of obtaining evidence. The courts will be able to ensure that the law is not abused, because they will decide whether to grant a warrant to obtain the evidence that they will hear in future prosecutions. Does the House not wish that the courts—the heart of British justice—should decide rather, than that the police should have to go continually to the Home Secretary? The latter procedure is invisible to the public. That is an important point.
Is my hon. Friend suggesting that the issue of warrants in such circumstances will be open and visible to the public?
Yes. I believe that applying for a warrant will be, as my hon. Friend says, open and visible to the public and that that is the right and proper way forward, whereas seeking an application for a warrant from the Home Secretary is slow and invisible to the public. Was that my hon. Friend's point?
Yes, although I am surprised to hear my hon. Friend's answer.
I am aware that I have been on my feet for a long time, and I do not want to take too much time which other hon. Members may wish to use. Amendment No. 18 is designed to write into the Bill the ability to search a computer which contains confidential information. That sounds a little esoteric, but at the moment the police are properly constrained from searching through data which include confidential information.Let us postulate that the police have received a complaint from a research establishment which says that someone has gained unauthorised access to its computer system and has deleted some of the research data. That is a common scenario. Those responsible have sent the research establishment an electronic mail message which reads, "We are the super-hackers and we'll get you again soon." That scenario is similar to the case of the university hacker who is being prosecuted at the moment, whose activities I referred to in an article in The Times last year. It is true that the research establishment has not lost any money. It has a back-up of its data, and it takes perhaps three hours of the system manager's time to restore it. Although that is time wasted, the real worry is that the establishment has no idea how the hackers managed to crack its efficient computer security, and it is immensely concerned about the possibility of another attack which would unnecessarily delay the research project. In the same article in The Times, I referred to the CERN establishment on the borders of France and Switzerland, where security has been massive, yet hackers have planted a virus. In our smaller British example, the systems monitor would provide the police with computer logs to show where the hacking call originated. The research establishment has a dedicated line to a local computer bureau which processes some of its data. The computer logs show that the hacking call originated from the bureau, so the police would investigate the bureau and find that it has six employees and processes data for a number of clients, including banks, solicitors, a local supermarket and a number of accountancy firms. The majority of the data held by the computer bureau is highly confidential. The police cannot ask permission from anyone at the bureau to search the computer for evidence, because they do not know who committed the offence and they are worried that, if they ask for the search, the evidence may be destroyed immediately. As the hacker sent an electronic mail message, the police have reasonable grounds to assume that the message may still be in the bureau's computer, with other evidence of the attack—electronic fingerprinting. They look to the Computer Misuse Bill for powers to obtain a search warrant. Clause 14 gives a power of search at the bureau because unauthorised access has been gained from those premises, but that power of search would not extend to authorising a search for materials of the kind mentioned in section 9(2) of the Police and Criminal Evidence Act 1984. Remember that that Act was not designed with computer crime in mind, and that the type of crime that the Computer Misuse Bill seeks to identify was not a crime then. The police know that they have to search the bureau for computer evidence, but they will clearly come up against a mass of confidential information during their search. They realise that the evidence that they require is bound to be mixed up inextricably with confidential data, because the hacker will have used a disk on which client data are already stored—that is known as free parking. No serious arrestable offence has been committed, and the police cannot use the powers under the Police and Criminal Evidence Act. I refer again to the fact that, without new clause 2 the police lose their powers of search under the the Criminal Damage Act 1971. How can they search for evidence that leads to the making of an arrest? They cannot. Another crime will therefore not be solved, and the criminals will not be prosecuted. My amendment solves the problem by allowing a search to be made of the contents of the computer system, despite the fact that the evidence may be contained within or held alongside confidential material. In the two new clauses and the amendment, I seek to make the point that the Bill will be only a slight vehicle without them. Unless the police have the powers contained in the new clauses and the amendment, they will be unable to identify or prosecute 99 per cent. of those whose activities will be unlawful under the Bill.
I congratulate the hon. Member for Romsey and Waterside (Mr. Colvin) on promoting the Bill and on having provided answers and explanations for the difficult and important questions that were put to him in Committee.The hon. Member for Torridge and Devon, West (Miss Nicholson) spoke eloquently to new clauses 2 and 3, both of which contain search powers that could be authorised by a justice of the peace. However, my amendment No. 3 would transfer that search power authorisation from a justice of the peace to a circuit judge. I believe that that would strengthen the Bill. I shall not rehearse our debates in Committee on the extent of search powers by the police. If the Bill had contained on Second Reading the search powers that were incorporated in Committee, I suspect that there would have been much stronger opposition to it. There would have been great concern about the civil liberty implications of those search powers. Anyone who owns a computer would be open to such action and his computer could be seized. I hope that the House will decide to amend those search powers so that they can be authorised only by a circuit judge, rather than by a justice of the peace. As clause 14 now stands, any home owner with a telephone is now under threat. There could be a knock on the door at midnight. Even if the offence of computer trespass and unauthorised access has not been committed, a search warrant could be obtained from a justice of the peace, based on the belief that an offence will be committed. The search warrant would allow search and seizure to take place within a month of that belief having been formulated. It would allow for the breaking down of a front door, under the guise of reasonable force. I do not like that approach, and the Law Commission was unhappy about it. It referred to the need for strong evidence of the practical need for any extension of those powers. The Law Commission was not in favour of the Police and Criminal Evidence Act 1984 being used in these cases. In paragraph 4.11 of its report, it said:
10.15 am Amendment No. 3 would remove the authorisation of search powers by justices of the peace and transfer it to a circuit judge. Amendment No. 16 deals with the position in Northern Ireland, where authorisation would be by a county court judge. I consider that judges would be much more rigorous than justices of the peace in- examining whether the police belief that a crime had been committed had any foundation. Justices of the peace are unpaid, they have no technical knowledge, they are often elderly and perhaps it is easier for the police to convince them than it is to convince circuit judges. There are many more justices of the peace, so the police could choose one who might be more compliant. Authorisation by circuit judges rather than by justices of the peace would ensure that the search and seizure powers in the Bill are less open to abuse. The need to convince a circuit judge rather than a justice of the peace would probably lead to the evidence presented in support of a. search warrant being of a much better quality. It would not be unusual to seek authorisation from a circuit judge. Under section 4 of the Data Protection Act 1984, when the Data Protection Registrar seeks a warrant, he has to convince a judge that it is justified. The clause 1 offence in the Bill is similar to that which the Data Protection Registrar investigates. Paragraph 1 of schedule 4 to the Data Protection Act, which provides the Data Protection Registrar with his powers of search and seizure, begins with the words:"We have already pointed out that even within the confines of the present law there are substantial and effective methods of identifying and apprehending both outside hackers and internal misusers of computers. In addition, if our recommendation is accepted that the 'ulterior intent"' hacking offence should carry a maximum penalty of five years' imprisonment, that will be an arrestable offence which, in a case where there is reasonable suspicion that the offence is being committed, will under the present law attract powers of arrest, entry in order to arrest, and search of the arrested person's premises. These are substantial weapons. To go further, as some have urged, and create powers of search before arrest, even in the case of suspected basic hacking, would be in effect to extend the search provisions of Part II of PACE to cases far different from the serious arrestable offences for which that regime was designed. For such a step to be contemplated there would, in our view, have to be as a minimum requirement very strong evidence of practical necessity, which evidence has not been provided by the, admittedly limited, submissions made to the Commission."
If such a provision is appropriate under that Act, it would be equally appropriate to apply it to the Bill. In Committee the hon. Member for Torridge and Devon, West moved an amendment relating to the Interception of Communications Act 1985 which was rejected. She realised then that there was a problem because she wanted a circuit judge rather than a justice of the peace to sign search warrants. The hon. Lady's amendment added the words, "or a circuit judge" nine times. I hope that she will agree that, as it is clearly what she wanted then, it is also appropriate in this case. For those reasons I shall, at the appropriate time, move my amendment No. 3 calling for a circuit judge, and county court judge in Northern Ireland having the power to authorise searches, rather then a justice of the peace. That is a small but important point, and I hope that the House will accept the amendment. Amendment No. 10 sets out conditions under which search powers are allowed. I tabled it because that argument was used in Committee as justification for the search and seizure powers in the first place. In Committee, it was stated that British Telecom had all the powers it needs to locate where somebody is using a computer in his own room to hack into a computer somewhere else. However, it was said that extra powers would be needed in case there was more than one person on the premises. That was the sole justification given in Committee as to why these draconian search and seizure powers are needed. I tabled amendment No. 10 to call the bluff of the Bill's promoter and Minister. My amendment repeats exactly what they stated: that there are reasonable grounds for believing that the signal has come from a premises, and that"If a circuit judge is satisfied by information on oath supplied by the Registrar."
It will be most enlightening to hear from the promoter, and perhaps the Minister, why amendment No. 10 is not acceptable to them, as its contents were their sole cause for proposing the draconian search powers in the first place. I await the answer with interest. Amendment No. 7 relates to search powers not so much as they are generally applied, but as they are specifically applied. It refers to the security services and their powers. We need some answers as to what powers they have in relation to hacking because that matter has never been discussed in the House. We did not discuss it during debates on the Security Services Act 1989 or the Interception of Communications 1985, and it has not been properly discussed during debates on this Bill. That is why I moved my amendment stating that"more than one person resides or is employed at the premises"
I was appalled to learn from the Minister, in asides in Committee—at columns 19 and 72 in the Standing Committee report—that the Security Services Act 1989, by default, legitimises hacking by the security services. I hope that that will be explained in more detail because the more I think about it the more I find it another example of how the Government keep reducing parliamentary democracy while giving unrestricted powers to the security services to do almost what they like. It is the opposite to what has been happening in eastern Europe, where the security services' powers have been curtailed and sometimes removed. Attempts are certainly being made there to make them more accountable, whereas our services are less accountable under this Government. As the House knows, the Security Services Act legalised burglary through a warrant signed by the Secretary of State. That was highly contentious legislation, opposed by many and severely criticised by all parties, including some Conservative Members. The hon. Members for Thanet, South (Mr. Aitken) and for Aldridge-Brownhills (Mr. Shepherd) made strong cases against it. I am sure that most hon. Members thought that the warrant allowed the security services physically to break into premises, as long as they did not commit another offence. I emphasise the word "physically" because, as I understand it, under the terms of the warrant, the authorised person can invade premises in that way. Until the Minister spoke in Committee there was no sign that the warrant could authorise MI5 staff to hack into any computer whenever they wanted, without committing this Bill's proposed offence of unauthorised access. That power to give a warrant to legalise computer hacking was not discussed in debates on the Security Services Act. The way in which the matter is being pushed through means that the House is being deceived because we are not having a proper debate, and those powers are not being properly restrained and decided on. Hacking, although perhaps not physical burglary, is remote burgalry. It occurs on a much larger scale than the physical burglary of premises. If someone hacks into a computer he gets all the information from it, vast amounts of which can be used or misused. That issue was raised when the Interception of Communications Bill was being debated, and the Government made the concession that any intercepted information not needed by the security services would be deleted and would not be held. That was an important concession, but there is no such concession in this Bill. Under its powers, the security services can hack into a computer, get all the information, keep it for as long as they like and use it for whatever purpose they like. They are under no obligation to delete the information. On page 360 of "Spycatcher", Peter Wright states:"an individual cannot be authorised to access a computer by a warrant served under section 3 of the Security Services Act 1989".
The Government data network will give them wide powers and the police computer will give them vast amounts of information, as will all the private computers that they can hack into. They do not have to adhere to the data protection principals because, under section 27 of the Data Protection Act 1984, they are exempt from doing so. There is no code of practice about how they should use the information and the Data Protection Registrar has no powers over them. In The Guardian on 6 April 1989 it was stated that the security services had information on the political activities of about I million people in this country, and I suspect that that is an understatement. Clearly, with the hacking power that they are being given, they will be able to obtain even more information, and have almost unlimited access. In section 23.21 of its report, the Lindop committee stated that with independent supervision the security services would"The main interest F branch (of MI5) had in the Computer Working Party was to establish widespread computer links, principally with the National Insurance Computer in Newcastle."
Instead, the national security apparatus has been given a free hand, and it will be able to hack almost at will. Amendment No. 7 places a temporary stop on that state of affairs and prevents the security services from misusing computers until the Government introduce primary legislation that can be debated fully. Before the Security Services Act and the Interception of Communications Act, everybody could hack, including the security services, because it was not an offence and there was no need to obtain a warrant. Those Acts did not outlaw hacking, but now the House is saying, as a matter of principle, that hacking is not acceptable and is a criminal offence. Instead of any change being made, the Minister says that as long as a warrant is obtained hacking can continue. Legalising a criminal activity such as burglary is wrong in principle. The security services should not be above the law. There may be circumstances in which they must break the law, but if they are caught they should be subject to the law and court action. Hacking is remote burglary and it invades personal privacy. The house is saying that it should not be allowed and that the security services should be subject to proper constraints. The purpose of tabling amendment No. 7 is to ensure proper parliamentary consideration of the matter. I hope that the Minister will give a clear explanation."be open to the healthy—and often constructive criticism and debate which assures for many public servants that they will not stray beyond their allotted functions".
I congratulate my hon. Friend the Member for Romsey and Waterside (Mr. Colvin) on introducing the Bill, which is an important and much needed measure.I am pleased that the amendments to which I put my name have been joined with the two new clauses that have already been discussed by my hon. Friend the Member for Torridge and Devon, West (Miss Nicholson). She is an expert on these matters, which I most decidedly am not. It was a particular pleasure for the House to hear her discussing the new clauses with her customary elegance, charm and depth of knowledge. I thought that she did very well indeed. I am pleased to have put my name to the amendments tabled by the hon. Member for Leyton (Mr. Cohen). I found myself in a perhaps astonishing amount of agreement with hon. Gentleman. I can think only that there is something catching about the air in north-east London. The Bill is extremely important. Computer misuse is increasing extremely fast. Offences, and the potential for them, are becoming worse. It is high time that we had a Bill such as this. I am rather surprised that one was not introduced earlier, because if one had been in place five years ago its provisions would have been of much use and value not only in this country but throughout the world.
Does my hon. Friend recall that I introduced a private Member's Bill last April which contained some of the measures proposed in the new clauses? Had the Government proceeded as they should have, even with only a White Paper, these crucial points and some of those made by the hon. Member for Leyton (Mr. Cohen) would unhesitatingly have been incorporated.
My hon. Friend is right. She is well known for her expertise on these matters and for her tenacity.I am convinced that the Bill should have been on the statute book a long time ago. I must confess to some surprise that the Government have not made more of the running in this crucial matter. They should have considered it some time ago rather than leaving it to the device of a private Member's Bill.
I am most grateful to my hon. Friend for giving way on that important point. In all fairness to the Government, they have been exercised by this grave problem for some time. One must tread carefully when extending the criminal law, which is why they instructed the Law Commission to consider the matter carefully. It was only following the commission's working paper No. 110, the discussion paper on the subject and the report of the Law Commission, No. 186, that it was decided to proceed. By the time the Law Commission's report was published, the Queen's Speech was presumably in draft. That may be a bad thing, but it is my good fortune.
I always give the Government credit where possible. I give them credit for the fair wind they are giving to the progress of the Bill.It is good to see hon. Members taking an interest, with perhaps the remarkable exception of the Liberal Democrats. For all I know, they are all in their places but as invisible as usual. I dare say that they are rejoicing in the defeats inflected on them yesterday and preparing to build on their losses in their inimitable manner. The use of computers is growing among not only the security services and Departments but private users. I am not an expert on computers. My computer is an Amstrad PCW9512—I hasten to add that I have no interest in Amstrad plc—and many other similar computers are in private use. I do not know whether there are thousands or hundreds of thousands of them, but ownership is growing rapidly. Having owned one for a year, I can say with my hand on my heart that I do not know what I would do without it. Computers are environmentally sound because reams of paper are no longer necessary. All the information necessary is put on one small disk which can be accessed at any time.
In one respect at least computers are far from environmentally sound: they allow people to send reams of letters to hundreds of different people, particularly Members of Parliament. Allowing computers to continue but reducing the number of word processors might be a boon to the paper industry and the forests of the world.
My hon. Friend is quite right, but he is wrong to lay the blame at the door of the computer. It is the fault not of the computer but of the operator that it produces reams of paper. All hon. Members' postbags show all too clearly that far too many people rejoice in sending huge amounts of paper, which almost invariably find their way straight into the bin and straight out again.
Perhaps I could offer my hon. Friend a virus which he could send through the post to all people who have those computers, thereby eliminating any data addressed to the House of Commons.
That is certainly an excellent idea. If I could, I certainly would do that with all mail, with the exception of all items bearing the post code London E17. That mail already receives top treatment from me, but such a measure would enable me to give it, if anything, even better treatment.I listened carefully in Committee to the hon. Member for Leyton speak to amendments Nos. 9 and 10 on civil liberties. We rightly give the police extensive powers to enable them to carry out their work. We should not forget that the work they have to do these days is no longer of the relatively small nature of police work a few decades ago. The village bobby would have had to investigate the pilfering of half a pound of sweets from the local sweet shop, but today it is a different matter. Crimes and criminals have become much more sophisticated, and criminals use computers in planning and executing their crimes. To fight those crimes, the police must use the same weapons. It is right that the police should have extensive powers so that they can stop an offence either before it happens or, one hopes, after it has happened. On the other hand—there is always another hand in these matters—the rights of the individual must be protected. The hand of the law can be a very heavy hand. Sometimes it must be heavy, but at others it must be exercised in a particularly heavy way. The police may gain information from an informal source, perhaps from spending an evening in a pub. I do not say that in a derogatory way, because I know that the police often get good information from listening to people talking in pubs. The police may overhear that Mr. Jones of 1 Acacia avenue is contemplating committing an offence. They may decide to do something about it. As the hon. Member for Leyton graphically described it, there may be a knock on the door at midnight. Anyone who has read books such as George Orwell's "1984" knows that possibility all too well. The amendments are designed to ensure that the individual's rights are given as much due weight as the rights of the police. Paragraph (b) of amendment No. 10 would ensure that if only one person lives on premises where an offence is thought to have been committed, he should be exempt. This is an important point. We are talking about an individual, not a company, a corporation or even a Government Department. I said at the beginning of my speech that the rights of the individual were important. Sometimes the individual's rights tend to be submerged under a welter of legislation and regulation. I have great faith in the ability of the British individual to rise above that, but sometimes he may feel that the odds are stacked against him. We all know that ignorance of the law is no excuse, but that does not alter the fact that this place churns out vast quantities of legislation. Every individual is supposed to know exactly what that legislation means. 10.45 am Hon. Members all hold surgeries in their constituencies. We all have constituents who ask us about the operation of legislation. I am afraid that, more often than not, I have to confess that I have no knowledge of the legislation complained about. I say that I am not a lawyer, but my constituent may say, "You are a Member of Parliament, the place that produces all this legislation." It must sound pretty lame if a Member says "I am sorry, but I do not have the necessary knowledge. I shall have to take advice, look up the details, write to a Government Department," and so on. Sometimes I feel that constituents leave feeling dissatisfied because they think that their Member of Parliament has, in a way, let them down. That is often not our fault. It is impossible for us to have intimate knowledge of every piece of legislation on the statute book. I listened with great interest to the comments of the hon. Member for Leyton about justices of the peace and circuit judges. I agreed with much of what he said. On the whole, justices of the peace are extremely worthy and hard working, but they are lay people and cannot be expected to have intimate knowledge of every matter that is brought to their attention. I must be a little careful in what I say because my mother-in-law is a justice of the peace. If she thinks that I am too derogatory about justices of the peace and their abilities, I shall be in for a hard time when I see her tomorrow, when her memory will be fresh.
I do not wish to interfere in my hon. Friend's family relationships, but would he agree, on further reflection, that justices of the peace, who are drawn from all walks of life and all backgrounds, are infinitely more likely to be conversant with modern machines, such as personal computers, and with business procedures which are computerised than outdated, antiquated judges, as shown by their comments on ordinary things in life? Does my hon. Friend think that my suggestion is valid?
My hon. Friend raises several important issues. The most important issue going through my mind on the subject of my mother-in-law is who will pay for dinner tomorrow.
My hon. Friend will.
My hon. Friend is right. I fear that I have perhaps gone too far to retrieve the situation.
Seriously, does my hon. Friend feel that in a legal system where cases are computerised. judges are the worst possible people to think that the cause of the computer is important? They do not know what they are talking about; lay people do.
While listening to my hon. Friend the Member for Torridge and Devon, West, I recalled the famous remark by one judge, "Who are the Beatles?" I suspect that he said with a note in his voice that implied that he knew perfectly well who they were but that he was not going to let on. I do not agree with my hon. Friend. It probably depends on the age of the justice of the peace. Some of the older ones have little knowledge of computers. They may know what an abacus is and doubtless, being of the older generation, they know their ABC—and those are necessary attributes today.
I am a little surprised at the turn that the debate is taking. Does my hon. Friend accept that age is an attitude of mind? Many judges spend considerable time writing judgments on extremely sophisticated word processors. Many justices of the peace do not know nearly as much about word processors or computers as many judges. It is unfortunate for us to start stereotyping lawyers, judges and magistrates in a debate on computer misuse.
My hon. Friend is a little hard. I had not started stereotyping any particular group. All I said was that the age of justices of the peace is relevant to whether they know about computers. I am in a rather unfortunate position, as I am neither of the younger nor the older generation, but somewhere in between.
Yes, I may just as well admit that I am middle-aged. However, my generation is in a rather more unfortunate position. We are not old enough to be fuddy-duddies, but we are not of the generation that has used computers in schools. We have to decide whether to get a computer and, having done so, we have to learn all about programs, disks, bytes, hardware and software. We probably get them muddled up, but we hope to win through in the end. As my hon. Friend the Member for Wanstead and Woodford (Mr. Arbuthnot) has said, many in the legal profession have come to realise that the use of computers is now essential. The days of clerks scratching away with quill pens in dark, dusty corners have long gone except, perhaps, in some dull corner of Lincolns Inn Fields. Many judges have learnt to use up-to-date technology and they find that it is very useful to them.We have already discussed justices of the peace in some detail and I hold firmly to the view that the older magistrates remain mistrustful and even resentful of the use of computers, whereas the younger ones, especially those who are business men, know perfectly well that today, the use of computers is essential and most important in the execution of their duties.
I hasten to withdraw my comments about the stereotyping of judges. They sprang more from my irritation about judges' remarks in serious cases of child abuse. I take them back and they are not germane to the discussion.Amendment No. 3 concerns search warrants. Does my hon. Friend agree that clause 14 provides the power to obtain a search warrant? It is not a new power, but is copied directly from the Copyright, Designs and Patents Act 1988. I was fortunate enough to be a member of the Committee on that Bill so I know that it invests the power to grant warrants in justices of the peace. Under current legislation, all search warrants may be obtained from a justice of the peace with the sole exception of special procedure material under the Police and Criminal Evidence Act 1984. My own earlier request to class computer offences as serious arrestable offences was unacceptable to the Government, so there is no reason why the power to grant such search warrants should not remain vested in justices of the peace. What are my hon. Friend's thoughts on that?
I wholly agree with my hon. Friend that there is a precedent which can most usefully apply. However, my hon. Friend may not have fully taken on board my points about the different capacities of justices of the peace and circuit judges. My hon. Friend, who is an expert on these matters, tends to forget that the average lay person is not an expert.Let us consider a magistrate who does not understand computers. It would be all too easy for a police officer who understands computers to baffle that magistrate with the science of computers. I can imagine an incident late at night. The magistrate might be hauled out of bed, fuzzy from lack of sleep, with his spectacles awry and his hair over his eyes. He might suddenly be confronted by a police officer in a state of great excitement. The police officer might say that he had a search warrant and might then produce a whole lot of totally incomprehensible gibberish. The magistrate would want to get back to bed. He might just have been out to dinner and have a rough night ahead of him, yet he might have to get up early the next morning to dash off to a business appointment. He might ask where to sign and scribble his signature, after which the policeman would go off thinking that he had done a good night's work. I suggest that that would not be such a good night's work. A circuit judge is a more appropriate authority and would have far more knowledge of what was going on. We are discussing potentially extremely serious cases. I firmly believe that the extension of police powers is a serious matter. The rights of the individual need to be protected and, in this case, the circuit judge would be more likely to ensure that the liberties and rights of the individual were preserved and upheld. Amendments Nos. 5 and 6 are interesting. They seek to remove the possibility of obtaining a warrant to enter and search premises to obtain evidence when a computer misuse offence is about to be committed. The warrant would be available only when an offence had been committed. Here again, we are talking about the rights of the individual. It is clear that if an offence has been committed, all due resources of the law should be available and should be used. However, I am concerned about giving the police powers to enter premises where they believe that an offence is about to be committed, especially in the context of computer misuse. There are many ways of misusing computers; if there were not, there would be no need for the Bill.
My hon. Friend must bear in mind that some offences and the evidence relating to them are, by their very nature, transient. Although there may be clear signs that offences have been committed in the past and, as a result, that they are likely to be committed in the future, there may be no evidence available about the past offences. The only way in which one could establish the offence might be by anticipating the future offence.
There is a difficulty here. I do not think that anticipation is necessarily enough to warrant giving the police power to enter and search premises to obtain evidence; nor do I believe that, merely because offences have been committed in the past, there is a likelihood that they will be committed in the future. After all, if a man commits offences and is brought to trial, convicted and sent to prison, when he comes out of prison it should not be thought that he will commit offences in the future.
Frequently the point at issue is that there had been no conviction for hacking. Although there may be evidence of computer interference, it may not be possible to pin that evidence on an individual unless one anticipates the possibility that he will continue his habit of repeatedly interfering with computers.
If the evidence of an offence is already available, that is a different matter, and it can then be proceeded with. However, we are talking about anticipating a crime. We are talking about giving the police draconian powers to enter premises to obtain evidence when a computer-misuse offence is about to be committed. The matter is not sufficiently concrete. There is too much anticipation about whether it will happen. Because of that lack of certainty, I am not convinced that the police should be given power to enter and search premises.I have already spoken at some length about the rights of individuals. An individual has the right to live at home, undisturbed and at peace with the world and his neighbours. No one in authority is entitled to come barging in—possibly at night—saying that there is evidence that a crime is about to be committed, especially when there is no concrete evidence. That is part of the problem. The nature of computer misuse is different from the example that I gave earlier—That of stealing half a pound of boiled sweets from the village shop. Some crimes, although not insubstantial in themselves, yield no concrete evidence for charges. For example, copyright law is a morass and a quagmire. It is important and needful that we should have copyright law, but it is notoriously difficult to enforce.
My hon. Friend will know that the defence of intellectual property is difficult, but the Copyright, Designs and Patents Act 1988 contains the model of the protection of intellectual property in terms of computer software. It is the draft of the current EC directive—the work of experts, including many senior members of the British Computer Society.Does my hon. Friend agree that it would be infinitely better for the police to have search powers to obtain evidence than to have to follow the other route—to arrest in order to obtain evidence? If so, would it not be proper for him to withdraw his support for amendment No. 5 and to support my new clause 2?
My hon. Friend put words into my mouth in the first part of her intervention. I listened with great interest to her introduction of her new clauses, and perhaps she has found a solution to the problem that is better than that set out in the amendment. The House should debate that further.The purpose of amendment No. 7 is to prevent hacking or similar activities by the security services by providing that
The activities of the security services concern us all. To some extent, they are at the root of the security of the state and that of our democratic system. It is nevertheless essential that there should be proper democratic control of the security services. Earlier I referred to our democratic system, and observed that, sadly, it was necessary for us to have security services to protect us from enemies of this country who seek to undermine our democratic system. However, I sometimes feel that the security services are a two-edged sword. As I said, they are important in underpinning our democratic system, but they must be truly accountable. Amendment No. 7 takes account of the worries and fears of many people that our security services may not be sufficiently under democratic control. As for computers, those peculiar machines that so many of us use but whose workings so few of us understand—with the exception of my hon. Friend the Member for Torridge and Devon, West—it is all too easy for the security services to make full use of computer systems, at the same time ensuring that their activities do not come to the notice of those who are rightfully in control of them. There is concern on both sides of the House about the control of the security services. Last year the House passed the Security Services Act 1989. Rightly, the Security Service reports to the Home Office and to the Prime Minister. However, we may need more safeguards to stop the misuse of computers, and it is right that the hon. Member for Leyton should have taken the opportunity to try to introduce additional safeguards. No doubt my hon. Friend the Minister will be giving the Government's views on these important matters, and I hope that he will pay special attention to amendment No. 7. The amendment has been placed at the end of the group. I know perfectly well that that does not detract in any way from its importance: to my mind, it is by far the most important amendment in the group, and I expect my hon. Friend to devote most of his time to it."an individual cannot be authorised to access a computer by a warrant served under section 3 of the Security Services Act 1989."
My hon. Friend asks why. The House knows perfectly well that this is a most important and serious matter, and the debate deserves the fullest and most comprehensive reply.
My hon. Friend tells me that he is fully conversant with A, B and C, if not with hexadecimals. Would he care to explain to the House—to you, Mr. Deputy Speaker, in particular—how the English used in the amendment works? It is missing either a noun or a verb, or both; it simply does not make sense.
My hon. Friend is being very hard on those who drafted the amendment. It is perfectly clear. In any case, we in the House understand each other perfectly well. We do not have to bother about putting nouns and verbs in their right places, provided that we understand what is being said. For goodness sake, this place is not a school for young girls; it is the home of Britain's full-blooded democracy. We must be heard by the people of Britain to speak in terms that they understand.
Will my hon. Friend give way?
Would my hon. Friend like to tell us what the amendment means? Perhaps it is only a pronoun that is missing, but the amendment is supposed to be in English and it is not.
No doubt my hon. Friend will complain next that there is a split infinitive somewhere in the amendment. The points that she has raised are thoroughly obstructive, and not at all in the spirit of the amendment, which the whole House understands. My hon. Friend may be an expert on computers, but I suggest that she should leave to other hon. Members the business of speaking the language of ordinary people. I am certain that when my speech is televised, as I am sure it will be, my constituents will congratulate me and say that they understood exactly what I was talking about. All my hon. Friends talk about bytes and mini-bytes and disks——
And viruses, as my hon. Friend says. Such talk is totally over the heads of most people in this country. That is why we have a Computer Misuse Bill. It is designed to protect people from the depredations and activities of some of those who are meant to look after the interests not only of individuals but of departments, corporations and companies that use computers.It cannot he stressed sufficiently strongly that this is an extremely important Bill. Films have been made about computer misuse and hacking. A year or two ago a film whose name I cannot remember was made about someone in America who hacked into the American defence computer. It was just a film, but that does not alter the fact that there are those among us—perhaps not in the House, with the exception, of course, of my hon. Friend the Member for Torridge and Devon, West—who have such knowledge of and expertise in these matters that they can do grave and irreparable damage to many of our institutions. That is why the Bill has been introduced. 11.15 am I end, as I began, by congratulating my hon. Friend the Member for Romsey and Waterside on his Bill. He is doing the country a signal service and the Government are right to give the Bill a fair wind. I look forward with considerable interest to hearing what my hon. Friend the Minister has to say about the extremely important matters that have been raised.
On a point of order, Mr. Deputy Speaker. I did not want to raise a point of order during the speech of my hon. Friend the Member for Walthamstow (Mr. Summerson) and so interrupt his most interesting comments, but I feel that I must do so now. I sat through the whole of last Friday's debate—I think that you, Mr. Deputy Speaker, were also present—during which a series of Opposition Members raised points of order drawing attention to the community charge. Is it not strange, in the light of our result in Wandsworth last night—the Conservatives substantially increased their majority as a result of setting a low community charge—that there have not been points of order concerning the community charge today? Why such silence? Could it be that at last the message is coming home to the British people: if one votes Conservative, one votes for a low community charge?
A few moments ago I was congratulating myself on the fact that we had reached 11 o'clock without any points of order. I am afraid that I jumped the gun.
I had originally intended to speak at length in the debate. No doubt some hon. Members will be relieved to know that I propose to be relatively brief, although the point of order raised by the hon. Member for Gainsborough and Horncastle (Mr. Leigh) tempts me to prolong my speech by some hours.I congratulate the hon. Member for Romsey and Waterside (Mr. Colvin) on his Bill. The reason why I had reservations about it was that certain changes were made in Committee. I was glad to sponsor the Bill when the hon. Member asked for my assistance, but I was most concerned about one amendment tabled in Committee, as I explained at the time. I refer specifically to clause 14, which allows a search warrant to be issued in respect of an offence which has been committed, which it is believed has been committed, or which it is believed might be about to be committed. I share the concern of my hon. Friend the Member for Leyton (Mr. Cohen) about the effect on civil liberties of making possible the issue of a search warrant in respect of offences under clause 1, especially in view of the specific recommendation of the Law Commission that a search warrant would not be necessary in such circumstances, and as clause 1 covers offences which, while they might be regarded as serious by some people, would not be regarded by the courts as serious arrestable offences. In Committee, I cited incidents in Birmingham and the west midlands that had caused me grave concern about allowing the issue of a search warrant to the police. In my experience, that power would be abused in some circumstances. I shall not repeat the examples that. I gave in Committee, although I know that my hon. Friends shared my misgivings, but had there been no prospect of an amendment, I should have wanted today to describe in detail the reasons for my misgivings, and that might have prejudiced the progress of the Bill. I strongly support the amendment tabled by my hon. Friend the Member for Leyton, which would mean that, to obtain a search warrant, the police would be required to go to a circuit judge instead of to a justice of the peace. I intend no disparagement or criticism of justices of the peace, but with a matter as important as this, entailing the potential infringement of civil liberties, we should not make it too easy for the police to obtain a search warrant. My hon. Friend the Member for Leyton and I have suggested a compromise by proposing that, in such circumstances, a warrant should be obtained from a circuit judge. I understand that that is not unprecedented in law, and such a change would mollify those who, like my hon. Friend and me are concerned about civil rights, and would somewhat alleviate our anxieties. I am sure that we do not want to wreck the chances of this Bill becoming law. As my hon. Friend the Member for Leyton said, we are all concerned with remote burglary, and we do not condone computer hacking. However, we are concerned about the risk of making possible other serious infringements of civil liberties in future. The House should always be careful in such matters. I have been told that the hon. Member for Romsey and Waterside intends to accept our amendment and that is why I will be much briefer than I would otherwise have been. I am grateful to the hon. Member for Romsey and Waterside for his willingness to compromise. I am aware that representations were made to him and to the Goverment by bodies including the CBI. Representatives from the CBI met me, and I was grateful for their ready recognition of the problems that I described to them in the west midlands. I am grateful to learn that the CBI told the Government and the hon. Member for Romsey and Waterside that it would be sensible in the circumstances to accept amendment No. 3. On the basis of compromise, we can proceed and pass this Bill, which has rightly been described as one that will do a great deal to stop the invasion of privacy that is the result of computer hacking. I was delighted to learn that the hon. Member for Walthamstow (Mr. Summerson) has been persuaded by my arguments and those of my hon. Friend the Member for Leyton. We were deprived of the pleasure of his company in Committee, but he has clearly read our proceedings and been seduced by them into support for civil liberty. He shares our passion to defend civil liberties in this country. I was much impressed by his defence of full-blooded democracy. However, I believe that the hon. Member for Walthamstow made such a lengthy speech for other reasons. Perhaps he was more concerned with the progress of other Bills on today's Order Paper. I wonder whether he was put up to make his speech, which he had clearly written beforehand and carefully researched, to impede progress on other worthwhile measures that would otherwise have come before the House. Those measures include the Rights of Way Bill, which is supported by Opposition Members and also by the hon. Member for Gainsborough and Horncastle (Mr. Leigh). That Bill is also supported by my right hon. Friend the Member for Birmingham, Small Heath (Mr. Howell) who would be most concerned if the hon. Member for Walthamstow was trying to impede the progress of a Bill which would improve and protect rights of way.
I see that the hon. Member for Walthamstow is trying to reassure me that he has no objection to the Rights of Way Bill. Perhaps he has objections to the Elimination of Poverty in Retirement Bill, which was introduced by my hon. Friend the Member for Islington, North (Mr. Corbyn). Perhaps the hon. Gentleman is more concerned about the Fuel and Energy Provision Bill, introduced by my hon. Friend the Member for Coventry, North-East (Mr. Hughes). It also occurred to me that the hon. Member for Walthamstow might be anxious to stop children and young persons from being protected from tobacco.Perhaps, like the hon. Member for Gainsborough and Horncastle in his point of order, the hon. Member for Walthamstow is concerned about the poll tax. Had we not had such a long speech from the hon. Member for Walthamstow, we might have reached other Bills on which the hon. Member for Gainsborough and Horncastle—who has just left the Chamber—might have wanted to comment. We might have heard whether the hon. Member for Gainsborough and Horncastle supported the abolition of the poll tax in discussions on the Poll Tax (Abolition) Bill, the Second Reading of which is to be moved today by my hon. Friend the Member for Coventry, North-East. Perhaps the hon. Member for Gainsborough and Horncastle might have spoken to the Poll Tax (Restoration of Individual Privacy) Bill introduced by my hon. Friend the Member for Leyton. After the glowing speech by the hon. Member for Walthamstow about the importance of civil liberties and human rights, perhaps he would have wanted to talk about the need to restore individual privacy in connection with the poll tax. However, as a result of his long speech, he has prevented us from considering that Bill.
Will the hon. Gentleman give way?
No, I will not give way, because I am anxious to make progress.The hon. Member for Walthamstow made a very long speech, which means that we will not have the opportunity to discuss the Bill on rape in marriage. That is an important crime in the moral sense. My hon. Friend the Member for Leyton should be congratulated on bringing that Bill to the House. He will be prevented from speaking on that subject. Indeed, he will be prevented from discussing the Bill to abolish hare coursing. I would have supported my hon. Friend the Member for Leyton on those Bills. I understand that the lengthy speech by the hon. Member for Walthamstow had nothing to do with the Bills to which I have just referred. His speech about the importance of civil liberties will be marked, remembered and kept by Opposition Members, particularly by my hon. Friend the Member for Leyton, who is a neighbour of the hon. Member for Walthamstow. My hon. Friend will miss no opportunity in future to quote from the speech made by the hon. Member for Walthamstow whenever issues affecting civil liberties come before the House. I am sure that the Walthamstow Labour party will also study the hon. Gentleman's speech with great interest. No doubt the Walthamstow Labour party will want to question the hon. Gentleman about the way he has voted during the short time that he has been a Member of this House, and in the short time remaining to him. I believe that the length of the speech by the hon. Member for Walthamstow—and the length of other speeches which might be made—have more to do with the second Bill on the Order Paper today. It seems that it is inconvenient for Privy Councillors to be present later. Therefore, as Privy Councillors need to be here for us to make progress on the Rights of Way Bill, we will have to debate the Computer Misuse Bill, despite the commitment of the hon. Member for Walthamstow to full-blooded democracy, for at least another hour and a half or two hours, simply to allow a Privy Councillor to come to the House. The hon. Member for Walthamstow, aided and abetted by the hon. Member for Torridge and Devon, West (Miss Nicholson), will no doubt talk to other amendments. I am almost tempted to ask you, Mr. Deputy Speaker, to accept a manuscript amendment. Having listened to the hon. Member for Walthamstow, I am persuaded that, instead of a circuit judge, perhaps we should have a Privy Councillor to issue search warrants. I would have been interested to hear the views on that of Conservative Members and the Government supporters who are anxious to wait for a Cabinet Minister to be present to enable the Rights of Way Bill to make progress. I wonder, Mr. Deputy Speaker, why you have not been invited to adjourn the House so that we may pass this most valuable Bill. congratulate the hon. Member for Romsey and Waterside on his initiative in bringing it forward and then go off and have a cup of coffee while we wait for a Cabinet Minister to arrive. I should have thought that that was a more sensible way of making progress. I express my appreciation to the hon. Member for Romsey and Waterside for his willingness to compromise and to meet us halfway. He has accepted that there is genuine concern on the Opposition Benches about civil liberties; that was reflected in the speech made by the hon. Member for Walthamstow. He has accepted our concern about the way in which clause 14 would, on the experience of other necessary and justified provisions in other Bills, allow the police to abuse police powers. I thank the hon. Member for his compromise.
I join other hon. Members in congratulating my hon. Friend the Member for Romsey and Waterside (Mr. Colvin) on introducing this important Bill. I also congratulate my hon. Friend the Member for Torridge and Devon, West (Miss Nicholson) on her work on computer misuse.Important issues have been raised in the group of amendments headed by new clause 2. Those issues relate to the balance that must be drawn between the degree of risk in various offences and the costs that may be incurred and the possible intrusion into people's privacy in their ordinary way of life. I believe that my hon. Friend the Member for Walthamstow (Mr. Summerson), whom I had previously understood to be one of the great romantics of the House, was slightly uncharitable in terms of his mother-in-law jokes. He was living rather dangerously, particularly if his mother-in-law is a magistrate. I believe that my hon. Friend's support for some of the amendments was wrong. I intervened in his speech, and I want to address that issue before I consider other points raised by my hon. Friend the Member for Torridge and Devon, West.
I am interested in my hon. Friend's comments about magistrates. We all appreciate the work that magistrates do, and it was good to see support of the judiciary, particularly from Opposition Members.Many people in Dorset still have uneasy feelings about magistrates, particularly those people living in Tolpuddle, because of the martyrs. The history of the Labour party is well known in that respect. Unfortunately, I have some had news for the hon. Member for Leyton (Mr. Cohen). In a local council by-election in Tolpuddle yesterday, the Conservatives won that seat on West Dorset district council.
Order. I hope that the hon. Member for Stevenage (Mr. Wood) will not be tempted to go down that road.
I did not intend to be tempted, Mr. Deputy Speaker. We have already had some comments on elections, and there have been some eminently satisfactory results. I do not want to go any further down that road.Having spent many years in the computer industry, I am interested in the implications of the Bill for the industry and users. Before my hon. Friend the Member for Dorset, South (Mr. Bruce) intervened, I was about to say that it is far too simplistic to say that, if a provable offence has not been committed, it should not be possible to go in with a search warrant to investigate whether an offence is being committed. If that constraint were imposed, I believe that there would be a multitude of cases of hacking that we would not be able to proceed with to a conclusion, to the conviction of individuals who could be causing immense problems for expensive and major computer installations. I wish to refer to the various responsibilities that go with computer use and those that rest with users and manufacturers, as well as the need to ensure that we pursue those who are committing serious offences. My hon. Friend the Member for Torridge and Devon, West took as an example a shopkeeper and an employee. and the problems that might arise with the employee using a personal computer. There are some merits in new clause 2, but I was far from persuaded by my hon. Friend's example. A multitude of the personal computers that are now in use were produced for what I would describe as lightweight purposes. Many personal computers have no protection systems. If computers have been produced in that way, is it right to introduce blockbuster legislation to deal with abuse? I have some reservations about how far we should go. A balance must be struck. I wonder whether it is right that we should be talking about taking out search warrants that will apply to individuals' houses. I am mindful of the circumstances that could arise. The example of my hon. Friend the Member for Torridge and Devon, West involved putting a "time bomb" into an employer's computer. If the employee left at home the program that had been produced arid developed, he would be extremely foolish. In constructing a "time bomb", he would have plenty of time to delete any possible evidence. That would certainly be the position if he, the employee, were competent enough to produce a "time bomb". He or she would certainly be competent enough to remove the evidence from the personal computer. Although I am not impressed by the example of my hon. Friend, I accept that the Government may have to review the workings of the Bill in a year or two to ascertain whether the offences that it will introduce are capable of being pursued in the way that is necessary to sustain the legislation in a meaningful way. At this stage it would be unwise, perhaps, to introduce more draconian rights to search than those that are contained in the Bill. Many computers are used and controlled in a fairly casual manner in various premises. On the other hand, there are major computer systems of enormous expense—university systems, for example—where hacking has been a vast problem, and where the costs of impeding hacking would be excessive. There would be an excessive burden on the provider of the service, and also on individual users. It is therefore right that there should be provision to enable us to crack down on hackers who interfere with a computer system by impeding its use in a variety of ways—by putting in viruses that cause enormous damage or producing time bombs that have an immensely adverse effect after a period. Major abuse, even if, the people concerned have only a minor intent, must be tackled by the Bill. That is why I favour it, and believe that there must he rights of search. Otherwise, I do not believe that the Bill will be enforceable. In considering the new clauses and amendments, we have discussed the merits of justices of the peace and of judges. I am reluctant to take up any of the stereotypes that have been pursued. I know justices of the peace who have great knowledge of computer systems. Equally, I know many who have no such knowledge. I hope that, in implementing the Bill, the police will regard it as a. responsibility upon them to take up issues with those who know something about the matters that are being pursued. It is important that the enforcement of the law is regarded with respect. The same principle applies to judges. Some judges have an intimate and expert knowledge of computer systems and the abuses that may occur. Equally, others have no such knowledge. If we are to involve judges in the pursuit of search warrants, I hope that appropriate members of the judiciary will be involved, judges who have a relevant knowledge and understanding of computer systems. If that is done, the granting of search warrants will be carried out properly. I took careful note of what my hon. Friend the Member for Torridge and Devon, West said about the interception of telecommunications traffic. I have some sympathy with her arguments, but I thought that she was being somewhat unfair to British Telecom in terms of its willingness or otherwise to support interceptions where there appears to be an abuse of a system. My impression of BT has been much more favourable. Perhaps we shall find ourselves in a dilemma when we come to consider the costs and other implications of some interception activity and the consequences of the offence that is taking place. If an offence is being committed that has a trivial impact, should we spend thousands of pounds to try to prevent it? It is a difficult question, and one that will not become any easier over the years. As the Bill has been introduced by a private Member, I think that it would be inappropriate to insert the new clause. I believe that, after a year or two, the Government will need to review the workings of the Act, as it will then be. I hope that the Bill will take its place on the statute book before too long. If it is felt that it needs strengthening so that we can ensure that the various tasks necessary to uphold the law can be carried out, Government legislation should be introduced that will have that effect. To add such significant powers of search and interception would be a mistake. I understand that my hon. and learned Friend the Minister intends to accept an amendment. I am happy with that, although it calls into question the role of justices of the peace. I would not want the new clauses and other amendments to be accepted, because they would make the Bill draconian, and a private Member's Bill should not be used in that way.
Hon. Members can imagine my ecstasy last week when I realised that the Bill had been set down for debate the day after the local government elections. Having come from Scotland on the morning plane, I have had very little sleep, but I have been roused by the stimulating speeches from hon. Members on both sides of the House. I am therefore encouraged to put in my pennyworth.I well understand why there have not been many comments from Conservative Members on yesterday's local government elections—even Pyrrhus would have difficulty in finding satisfaction in the results. There are now 300 fewer Conservative councillors in England. That can be only good for the country.
What about Wandsworth?
If I were offered £700 to vote for the Conservative party, I must confess that, as a good Scotsman, I would consider it seriously.
Does that mean that the hon. Gentleman is not a committed member of the Labour party?
Order. After that interlude, I hope that we can now return to discussing the new clause.
The Minister will no doubt delight us with his speech later. He has attempted to draw our attention to a different issue.It is incumbent upon us to consider very carefully any matters affecting civil liberty. I have listened carefully to what has been said both today and in Committee, and especially to what was said by the hon. Member for Torridge and Devon, West (Miss Nicholson). I am not convinced that the likely range of offences covered by the Bill require the measures contained in the new clause. I trust that the Minister will take a similar view and that the hon. Lady will not press it to a Division. I suspect that the Bill's sponsors also hope that. I shall be brief, as I know that other hon. Members wish to speak and there are other vital Bills to be considered today. My hon. Friend the Member for Leyton (Mr. Cohen) has tabled an amendment that would require authorisation by a circuit judge for a search warrant, rather than by a justice of the peace as proposed in the Bill. It is a sensible proposal, which reflects the gravity of any action necessary to obtain a search warrant. That should never be taken lightly. Hon. Members have lucidly outlined the arguments, and I do not propose to prolong the debate, other than to say that I agree with the hon, Member for Walthamstow (Mr. Summerson) on the importance of preserving individual liberties. The Bill will be a better measure if my hon. Friend's amendment is accepted. I understand that the Bills's sponsors have no objection to it, and I commend it to the House.
I shall not detain the House for more than a few minutes. I congratulate my hon. Friend the Member for Romsey and Waterside (Mr. Colvin) and the other sponsors of the Bill on introducing a most important and interesting measure. We have come a long way from the days when even the mere mention of the word "computer" on the Floor of the House produced either mirth or raised eyebrows. Those days are long behind us.I have always been under the impression that the powers of this House are so vast that it can do almost anything. However, one thing that it cannot do is change a noun into a verb. That brings me to my substantive point. Clause 17(2) states:
"A person secures access to any program or data held in a computer if by causing a computer to perform any function he …
That is an extraordinary sentence and I want to discover its precise meaning. I suggest that it means, "if he causes the computer in which it is held to reveal part or all of the data that it contains". I hope that my hon. Friend the Member for Romsey and Waterside can clarify that in due course.(d) has it output".
I suspect that "output" is the opposite of "input".I support what my hon. Friend the Member for Walthamstow (Mr. Summerson) said about amendment No. 7, which relates to security services. He suggested that there might be complaints about a split infinitive, or pedantry of that sort. I think that my hon. Friend the Member for Torridge and Devon, West (Miss Nicholson) had in mind not a split infinitive but the absence of one, because the amendment contains the phrase "to access", and "access" is a noun, not a verb. I wish to speak to new clauses 2 and 3. I congratulate my hon. Friend the Member for Romsey and Waterside (Mr. Colvin) on his great success in bringing the Bill thus far. However, only last week we were made aware of how delicate a flower a private Member's Bill can be, so we should not count our chickens too soon. I hope that the Bill reaches the statute book as it is a most valuable piece of legislation. New clause 2, moved so eloquently by my hon. Friend the Member for Torridge and Devon, West, is based on the premise that there is an absence of police powers of search. If that is true, it is most curious, because civil law provides a means to search premises. I am open to correction, but my understanding is that, under civil proceedings, in the example given by my hon. Friend, the police could have applied for an Anton Pillar order. That order is used in cases such as copyright infringement. If a person believes that a former employee is, for example, making clothes in infringement of a copyright, in certain circumstances he can apply to the court for an order to go in and inspect the premises of his former employee. The Anton Pillar order has been criticised as too draconian and intrusive, but the contrast between the civil and the criminal law is interesting. I agree with the points made by my hon. Friend the member for Walthamstow about the need to protect the rights of the individual. I should he interested to hear the reaction of my hon. and learned Friend the Minister—it is a pleasure to call him such—to the comparison that I have drawn between the criminal and the civil law. I am extremely unhappy about new clause 3, which amounts to making telephone tapping subject to restrictions far less onerous than those that apply to the tapping of conversations. My hon. Friend the Member for Torridge and Devon, West implies that the power will extend only to the monitoring of data transmissions, but I believe that she herself has argued against the same point in emphasising the importance of such transmissions, and the fact that they are just as sensitive in some instances and no less entitled to enjoy privacy. I believe that my hon. Friend was right to make that argument. I believe that surveillance such as that suggested in new clause 3 should be treated very seriously. I understand that, in the case of the tapping of telephone conversations, my right hon. and learned Friend the Home Secretary himself must first give his authority, whereas new clause 3 would grant that power not to the Home Secretary, or to a High Court, circuit, county or Crown court judge, but to a magistrate. I doubt whether that is a sensible step, and I have not been persuaded by suggestions that High Court judges or any other judges are less with it, up to date or informed in respect of computers than magistrates are. High Court judges and magistrates have the same kind of education, and are as much exposed to newspapers and periodicals, as anyone else. They are highly qualified—I suppose that that is their only distinction—and it would be wrong for us to accept the stereotype presented. To suggest that High Court judges and older magistrates are more conversant with advocacies—unless the correct word is advoci—than they are with computers is also wrong. I have been persuaded by the argument of the hon. Member for Leyton (Mr. Cohen) that we should rely on judges rather than magistrates. It is a question not of which are more qualified but of the importance that we attach to the invasion of the individual's privacy. I diverged completely from the remarks of the hon. Member for Leyton only when he described computer hacking as remote burglary. On Second Reading, he eloquently made the point that hacking is a form of trespass—which in British law is not, generally speaking, a crime. To that extent, I disagreed with the hon. Member for Leyton. New clause 3 suggests that warrants should be restricted to the surveillance and recording of computer transmissions only, but how is one to tell the nature of the transmissions being surveyed unless one surveys them all? One could restrict recordings to those of computer transmissions, but there would have to be surveillance of all transmissions, to identify those not emanating from a computer.
As there are dedicated telephone lines for computer data transmissions, one can distinguish them from other types, as my hon. Friend proposes. Methods are already available for monitoring data transmissions without reference to my right hon. and learned Friend the Home Secretary. One merely attaches a loop around the line and listens in. That is how criminals gain information—and how the police sometimes have to obtain it. My argument is that the police should be able to take such action openly, so that evidence thus obtained would be admissible in court.Although I accept that a private Member's Bill is not the correct vehicle for such a clause, I tabled it because it is germane and central to the issue of computer crime and its detection, and to put down a marker for a full debate when the resultant Act itself is ripe for amendment, and when the police have experience of enough cases to refer the Act's provision back to the House.
My hon. Friend makes her point very well, as always. If she accepts that the Bill is not the correct vehicle for such a clause, I need say no more. I should be unhappy about reducing the security and privacy of telephone lines on the say so of a justice of the peace, and I believe that the House should not do so without giving the matter serious consideration. If my hon. Friend the Member for Torridge and Devon, West is proposing that such consideration should be given at some future date, I fully accept her contention.
We have enjoyed a wide-ranging debate on the Bill and on the new clauses and amendments that have been tabled. It is interesting that the group of amendments that contain the majority of the proposed alterations to the Bill were tabled by the two hon. Members most involved in the Bill's passage hitherto. I refer to my hon. Friend the Member for Torridge and Devon, West, who would be the first to agree, I am sure, that she represents the Scotland Yard view of the need for such legislation and the form in which it should appear on the statute book, and the hon. Member for Leyton (Mr. Cohen) who, it could be said, represents the civil liberties view.As the promoter of the Bill, I must steer a middle course. The House should endeavour to do so in the case of private Members' Bills, or they can founder on the rocks of controversy. In all our debates, and in discussions that have taken place outside the Committee Room and this Chamber, we have reached conclusions as to what might or might not be acceptable that should rendered the Bill a better one and ensure its progress. I was pleased to hear my hon. Friend the Member for Walthamstow (Mr. Summerson) justify his 11 th hour support for some of the amendments in a most stirring speech that certainly brought life to the Chamber this morning. He is right to emphasise the enormous growth in the use and misuse of computers and computer networks. The American film to which he referred was "War Games". Although it was a frivolous, teenage film, it nevertheless told a very serious story. It contained an element of truth, in that today's teenagers, thanks to the extent to which computers are available in schools, can finish their education fully computer literate. The film highlighted the temptation to stray down the path of trespass and the serious consequences ultimately of that activity. So although "War Games" was in itself a frivolous movie, it has a serious story to tell. The hon. Member for Birmingham, Hodge Hill (Mr. Davis) ably supported the hon. Member for Leyton in his advocacy of civil rights. The hon. Member for Hodge Hill was right to draw attention to the need for safeguards, and I am the first to thank him not only for sponsoring the Bill but for the constructive way in which he negotiated over the question of the safeguards that I hope the House will now introduce. 12 noon My hon. Friend the Member for Stevenage (Mr. Wood) has made welcome contributions throughout the passage of the Bill. He brings to our debates a considerable expertise of the computer industry, as a former employee of ICL. The Opposition Front-Bench spokesman, the hon. Member for Kirkcaldy (Dr. Moonie), has been thoroughly constructive throughout. I applaud the official Opposition's stand on the Bill, and I regret the total absence of a spokesman for or of any interest from hon. Members of the minor opposition parties. I tried to get them to take an interest in the Bill—I tried to recruit someone from those parties to sponsor the Bill and to be on the Standing Committee, but to no avail. My hon. Friend the Member for Havant (Sir I. Lloyd) and I have a similar interest in the issue as one of the biggest IBM factories is in his constituency. With his well-known perspicacity, he put his fingetr on a particular problem in the Bill and he got me turning the pages fast when he referred to clause 17 (2)(d). For a moment, I thought that my hon. Friend the Member for Wanstead and Woodford (Mr. Arbuthnot) had dealt with the matter—following the old adage that one should set a thief to catch a thief. The House can be excused from sometimes turning out unintelligible legislation, and that is one reason for trying to reduce the number of lawyers in the House. We are lucky to have my hon. Friend the Member for Wanstead and Woodford here. As a prominent lawyer, he explained what was intended by the clause. My hon. Friend the Member for Havant may be interested to know that I raised the same matter when the Bill was drafted. I think that the Bill went through eight drafts before it came to Parliament. As a result of its passage through Committee, it has been redrafted and will no doubt be redrafted once more.
My hon. Friend should note that a Liberal has just come into the Chamber and is running away again.
I did not see him, but I hope that that fleeting visit goes down on the record. All that I saw was a back view. Perhaps another hon. Member could say who he was.
My hon. Friend saw the back view of a rapidly disappearing species—the Liberal party.
I am grateful for that intervention. My hon. Friend's eyes are sharper than mine.My hon. Friend the Member for Havant mentioned the word "output" used as a verb. I have checked the word with parliamentary counsel, who confirm that its use in the Bill is correct.
Whether it is in the dictionary or not, it is an appalling way to phrase anything. Perhaps we might change it in time for the next stage in the House.
I take the hon. Gentleman's point.I congratulate my hon. Friend the Member for Torridge and Devon, West on the way in which she moved new clause 2. It is appropriate that she was the first person to speak this morning because, with her knowledge of computers and computer systems, and the way that she has made us all more aware of the menace of computer misuse, it was right to give her pole position this morning. I know that the order in which hon. Members are called is largely the luck of the draw, but nevertheless it was appropriate, and I am sure that the House will join me in paying tribute to her work in putting computer misuse high on the parliamentary agenda. This group of amendments is broadly concerned with powers of investigation, and with police powers in particular. Hon. Members have raised many matters. As the promoter of the Bill, it is important for me to reply in some detail and to raise a few more points so that there is a clear statement on the record of the thinking behind the various clauses and amendments, and why some may be approved and others not. Police powers of investigation were discussed at length in Committee. We have had an interesting debate today and I shall respond to each new clause and amendment separately. It may be helpful for the House to know that I shall conclude by asking hon. Members to accept amendments Nos. 3 and 16, tabled by the hon. Member for Leyton, but that I shall try to persuade the proposers of the other amendments and new clauses not to move them or withdraw them. My hon. Friend the Member for Torridge and Devon, West ably moved new clause 2, but I hope that she will withdraw it. The offence of basic unauthorised access, one of the three new offences defined in the Bill, is summarised in clause 1. The offence is triable in a magistrates court and would not normally attract any powers of arrest or search. Although I doubted that that should be the case at first—hon. Members will recall what I said on Second Reading—I was eventually persuaded that it would have left prosecution of the offence difficult to enforce. In a classic hacking case, it is relatively easy to pinpoint the source of the hacking, but without powers of search it may be difficult to identify the individual doing it. Clause 14, which we added to the Bill in Committee, provides the police with the ability to obtain search warrants for the basic clause 1 offence. As that offence is an essential ingredient of the clause 2 offence, the new power will apply to such cases. It will also be relevant to many clause 3 offences. Clause 14 is concerned only with search. There is no new power of arrest. I remind the House that clause 2 and 3 offences are automatically arrestable offences under the Police and Criminal Evidence Act 1984. That means that the police have the power to arrest and to search at the time of arrest. In certain cases, if the consequences have been or are likely to be, particularly grave, those offences could become serious arrestable offences. In that case, the police would have additional powers under PACE, in particular, the power of search not linked to arrest. PACE is a relatively recent. Act—it is only five years old. Given the seriousness with which the House rightly views police powers, I believe that we should vary its provisions only if a particularly strong case is made. New clause 2 seeks to allow the police to obtain a search warrant for clause 3 offences—the unauthorised modification offence. I hope to persuade hon. Members that there is not a strong case for that amendment. Where unauthorised modification follows unauthorised access—when a hacker gets into a system and starts to change things—the new search powers of clause 14 will apply. It is true that they will not apply in all cases. For example, if someone puts an affected disk into circulation, physical evidence will be available and the police can apply traditional detective techniques leading to an arrest and search on arrest. We are not dealing with classic hacking where the only thing that leaves the hacker's premises is a signal over the telephone line. Physical objects will be available to the police for their detective work. No doubt there will be some cases where the new power that my hon. Friend the Member for Torridge and Devon, West proposes would be useful to the police, but that would be a relatively small proportion of the total which do not have the special features that justify the serious step of varying the PACE regime. Therefore, I shall urge my hon. Friend to withdraw the new clause. My hon. Friend referred to the importance of the Council of Europe recommendations that we are soon to examine. She referred also to the European Community when she spoke to new clause 3. The Council of Europe has made recommendations, but they do not bind anyone; its proposals lie on the table. The European Community is considering the matter, but it cannot publish directives relating to the criminal law. There was a joint conference between the Council of Europe and the European Community in Luxembourg on 27 and 28 March 1990. My Bill was on the agenda and received considerable support and applause from those present. They saw at last some evidence that the United Kingdom was coming into line. I hope that the Italian and Belgian delegates at the conference took note of that fact because they, too, need to put their house in order, or they may become so-called hackers' havens. New clause 3 would allow the police to obtain a warrant from a justice of the peace requiring someone—in practice, British Telecom or Mercury—to intercept computer transmissions over the public telecommunications net-work and to make the results available to the police. I shall argue that new clause 3 is unnecessary. Parliament established the law on the interception of communications in the Interception of Communications Act 1985. As in the case of police powers, this is a sensitive area. A delicate balance needs to be struck between individual privacy and the interests of the community and the nation. I should not want that balance to be disturbed without good reason. If I were to try to do so, I believe that I would put the Bill in jeopardy. The technology and the powers already exist to trace hackers. I have discussed them in detail with the police, British Telecom and Mercury, and I thank those organisations most sincerely for the help that they have given me. Telephone calls can be traced, without special powers, through the network. If a suspected hacker is identified, it is possible to record what numbers he calls, and for how long, although without looking into the content of the call. Clause 1(2)(b) of the 1985 Act provides that any call can be intercepted if either the sender of the recipient agrees. If the victim of the hack agrees, the hacker's calls to him can be intercepted. If necessary, that can be done at the hacker's end, using special equipment—it is called data monitoring—that is programmed to record calls to the victim's number only. If the hacker goes via an innocent third party, the third party would normally co-operate with the police. Again, the calls could be monitored. The powers, therefore, already exist, but co-operation is needed between the police and the telecommunications operators. Having spoken to them, I am sure that the will to help to enforce the Bill, if and when it is passed, exists. I listened to what my hon. Friend the Member for Torridge and Devon, West said about the difficulties that have been experienced over co-operation. She must provide details of those difficulties. It would be possible for Her Majesty's Government to say to the police and to the telecommunications systems, "You must get your act together, because it is in your interests to co-operate." Compulsion is not the answer. I am therefore reluctant to create a new duty to assist the police. 12.15 pm Still less do I want to disturb the delicate balance of the 1985 Act, simply to compel co-operation to do something that can already be done, if the police and the operators continue to work together. Therefore I invite my hon. Friend to consider withdrawing new clause 3. Amendments Nos. 3 and 16 go to the heart of the debate. They were ably moved by the hon. Member for Leyton (Mr. Cohen). Amendment No. 3 requires the police to apply to a circuit judge rather than to a justice of the peace for a search warrant, if there are reasonable grounds for suspecting that a clause 1 offence has been or is about to be committed. The effect would be to introduce more rigorous control over the issue of warrants. I agree with that. Clause 16 makes a similar provision in respect of Northern Ireland. The extension of police powers is a serious issue. The hon. Member for Leyton is right to press for appropriate controls. I pay tribute to him and to his campaign, to secure civil liberties. Under the Bill, the aim of a warrant would be to enable the police to discover who was operating the computer when the offence was committed and to gather evidence. Without such a power, the police would be at a severe disadvantage; all that they could do would be to identify the location of the hacking, not the individual involved. Search warrants to enter and search for evidence are usually issued by justices of the peace. They act independently. When framing clause 14 I was satisfied that due care and attention would be paid by them to the merits of each case. Justices of the peace do not perform a rubber-stamping exercise. A judicial review by a circuit judge, as proposed by the hon. Gentleman, is called for only when entry and search is required for special categories of material, such as items subject to legal privilege, confidential personal records which have been acquired or created in the course of the holder's occupation, journalistic material and information about a person's financial dealings, assets or medical data. I have discussed the hon. Gentleman's proposal with him and with my hon. and learned Friend the Minister for Industry. I am persuaded that his amendments could be accepted. To provide search powers for a summary offence—a magistrates court offence—is relatively unusual, but in this case the Standing Committee thought that it was justified because of the nature of the crime. As it is unusual, I sympathise with the hon. Gentleman's concern about the use, or perhaps the abuse of the new power in clause 14. I accept that it needs to be exercised with circumspection and that a review by a circuit judge would inspire greater public confidence that sufficient grounds exist for a search. I assure justices of the peace that no slight is implied. I am merely responding to the concerns that have been expressed. I appreciate that that is a slightly unusual approach, especially in a private Member's Bill, but I wish to accommodate the hon. Member for Leyton and I hope that my hon. and learned Friend the Minister will say that the Government, like me, are prepared to accept his amendments Nos. 3 and 16. Amendments Nos. 5 and 6 seek to remove the possibility of obtaining a warrant to enter and search premises to gain evidence when the police have reasonable grounds for believing that a computer misuse offence is about to be committed. The warrant would presently be available only when an offence has been committed. I am reluctant to limit the power of search in that way. It is not uncommon for police to act on information given them to prevent crimes from occurring. Computer misuse offences are no different in that respect from the ordinary run of crimes. Hackers are notorious for exchanging and spreading information about what they have done and intend doing. Unauthorised access can have serious consequences and where there is an opportunity to prevent the cost and destruction of such access, I should be reluctant to hinder it. Surely prevention is better than cure. I do not agree that this would be an opppressive power, even in the context of offences as defined. A warrant will be issued only where a circuit judge—provided that amendment No. 3 is accepted, as I hope it is—is convinced of the grounds for believing that an offence is about to take place. That enhanced form of judicial review is a more than effective check to ensure legitimate use of power. The fears of the hon. Member for Leyton are unfounded and I ask him not to move the amendments. They are deceptive anyway because they fail to remove an identical reference in subsection 4. Amendment No.7 was also tabled by the hon. Member for Leyton, who has a longstanding interest in the activities of the Security Service, as does the hon. Member for Linlithgow (Mr. Dalyell) who had much to say about the subject in Committee. That interest is shared by those who wish to ensure that the Security Service can effectively carry out its essential role in protecting the security of the country, particularly against threats from espionage, terrorism and subversion. That is one reason why, only last year, the House passed the Security Service Act. Section 3 of that Act provides that
The Act contains a series of restrictions and safeguards. It establishes a commissioner, whose job it is to keep under review the exercise of the Secretary of State's power to issue warrants under the Act. Those safeguards should reassure the hon. Member for Leyton. The passage of the Security Service Act was marked by the most detailed discussion and careful consideration of the various provisions now in force. Therefore, I am reluctant, in my Bill, to vary legislation that the House passed with considerable debate so recently. For that reason, and because the amendment is not compatible with clause 17, or grammatically correct, I hope that the hon. Gentleman will not press it. Amendment No. 9 is a paving amendment for amendment No. 10 and I shall therefore refer to them together. By tabling amendment No. 10, the hon. Member for Leyton seeks to amend clause 14, the warrant clause, so that the police could obtain a search warrant to enter and search premises only if the material or signal transmitted from the premises gave them reasonable grounds to believe that an offence had been committed, and only if more than one person resided, in, or was employed at, the premises. Subsection (a) of amendment No. 10 is unnecessary. Usually, the police, with the help of telephone services companies, will have been able to locate only the premises where the clause 1 offence is being committed, by using data monitors and the dialled number recorders. That evidence will usually be the material that they will present to the circuit judge as reasonable grounds for the belief that an offence has been committed. Where that information is not available, the police may find it difficult to show sufficient grounds. I do not wish to exclude the possibility that occasionally there may be other relevant evidence to show that an offence has been, or is about to be, committed or that such material could not be presented in addition to evidence gained from data monitors. The amendment has the unfortunate consequence of excluding relative evidence in both cases, neither of which is sensible. Subsection (b) will allow sole occupants of properties to be exempt from the issue of warrants for the clause 1 offence, which cannot be right. My hon. Friend the Member for Walthamstow spoke strongly on that point although he has signed the amendment—no doubt to ensure that he had the opportunity to speak on it. The investigation into a clause 1 offence, before obtaining a warrant, will not identify who is committing the offence, but only the premises in which the offence is being committed. At that stage, the police will have no idea whether those premises are ones of single or multiple occupancy, and even if they do, it will not be clear that the occupant is the person operating the computer. The occupant could easily allege that it must have been a friend or acquaintance and thus create sufficient doubt to avoid conviction. I am convinced that the hon. Gentleman's amendment would severely impair enforcement of the clause 1 offence. It is essential to identify the culprit, irrespective of the occupancy of the premises. Therefore, I invite him not to move the amendment. Amendment No. 18 was tabled by my hon. Friend the Member for Torridge and Devon, West (Miss Nicholson). I fully understand the intention behind it, and agree with what she seeks to achieve. However, the conditions that she hopes to obtain are already fulfilled and the amendment is unnecessary. Therefore, I oppose it. It seeks to ensure that a computer will not be exempt from a clause 14 search warrant simply because some of its contents are excluded from the warrant by virtue of section 9(2) of the Police and Criminal Evidence Act 1984. The effect of that section is not to prevent the police from searching a room, or even a building, if it is thought that, inter alia, excluded material might be there."No entry on or interference with property shall be unlawful if it is authorised by a warrant issued by the Secretary of State".
Does my hon. Friend agree that it might be useful to hack into the computers that so inaccurately forecast the local election results in London, particularly for the constituency of my right hon. Friend the Member for Finchley (Mrs. Thatcher), where the Conservative party gained seats, rather than lost them, as forecast by the Labour party's computer, and for the London borough of Ealing, where the Leader of the Opposition now has a good right-wing Conservative council that will reduce his community charge?
I am sure that the hon. Member for Romsey and Waterside (Mr. Colvin) will not be tempted by that intervention.
I am most tempted, but in the interests of progress I will resist the temptation.
It is possible that hacking has occurred. The computer predictions of the BBC or ITV yesterday that if there were a general election there would be a 186 majority for the Labour party suggest that somebody had already hacked into the computer. When the results came in, we saw how inaccurate those predictions were.
The hon. Member for Romsey and Waterside had been as good as gold until those interventions were made.
I have been thrown. I was trying to explain the effects of section 9(2) of PACE. I shall try to get back into my stride after those irrelevant but welcome interventions, which prove that yesterday people voted on the performance of local authorities rather than the policies of the Government.
Does my hon. Friend know that the Data Protection Registrar has determined that 21 local councils have overstepped the mark in obtaining information on the community charge? Is he aware that the bulk of those councils are Labour, or certainly were?
That is an interesting point to put on the record. I am sure that the appropriate authorities will take action as a result of that news.The purpose of section 9(2) of PACE is not to prevent the police from searching a room or building if it is thought that, inter alia, excluded material might be in it but to stipulate that such material must not be the subject of the warrant. The subject of a warrant to investigate clause 1 offences would be material that would prove who had committed the offence. It is conceivable that the police, when executing a warrant, might happen upon excluded material. That would not nullify the validity of the warrant but would simply mean that such material should either not be seized or, if it inadvertently was, that it could not be used as evidence. Were that not the case, any warrant could be opposed on the pretext that excluded material was contained in the premises for which it was issued. I hope that I have reassured my hon. Friend the Member for Torridge and Devon, West and that if she catches your eye, Mr. Deputy Speaker, and obtains permission to reply she will withdraw new clause 2. The hon. Member for Leyton has made the case well for accepting amendments Nos. 3 and 16, which substitute circuit judges for justices of the peace in respect of issuing warrants under clause 14. Those amendments will be moved formally later when we consider clauses 14 and 16 and I look forward to hearing the Government's view on them. I cannot accept new clause 3 or any of the remaining amendments, on which we have had a good and constructive debate, for reasons that will be known to hon. Members. I hope that they will not feel compelled to press them.
My hon. Friend the Member for Romsey and Waterside (Mr. Colvin) accurately expressed the views that I have formed about the amendments and new clauses. Therefore, it would be to the convenience of the House if I expressed my views briefly and in summary form.Like my hon. Friend the Member for Romsey and Waterside, I commend to the House amendments Nos. 3 and 16, which were tabled by the hon. Member for Leyton (Mr. Cohen) and to which my hon. Friend the Member for Walthamstow (Mr. Summerson) put his name. For the reasons given by my hon. Friend the Member for Romsey and Waterside, I am unable to accept the remainder of the new clauses and amendments in this group. However, is right that I, on the Government's behalf, should express to my hon. Friend the Member for Romsey and Waterside our gratitude not merely for carrying the Bill forward but for doing so with considerable distinction and For expressing his views with considerable lucidity and elegance. My hon. Friend the Member for Torridge and Devon, West (Miss Nicholson) deserves considerable credit for bringing this matter to public attention. She was, rightly, the first to speak in this morning's proceedings, so it would perhaps be appropriate if I dealt first with the two new clauses and one amendment in her name. As she well knows, I am sorry to disappoint her by not being able to accept them. The arguments of my hon. Friend the Member for Romsey and Waterside are persuasive. On new clause 2, I start from the presumption that one should not extend powers of search unless it is essential to have those powers of search to prove that a criminal offence has been committed. I have been persuaded that it is necessary to increase the rights of search in respect of clause 1 offences. I know that—the hon. Member for Leyton reminded me of this—I expressed scepticism about that fact when the matter was considered by the House on Second Reading. I have concluded that, partly because of the arguments advanced by my hon. Friend the Member for Torridge and Devon, West, in connection with clause 1 offences it is essential to have an extended right of search. The justification for that was touched on by my hon. Friend the Member for Romsey and Waterside when he said that, in respect of clause 1 offences, often the only evidence one can obtain is to determine the identity of the person occupying the premises from which it is possible to establish that the relevant communication was transmitted is that which is obtainable following a search. I do not feel that the same applies to clause 3 offences. Many clause 3 offences are also clause 1 offences—they are subsumed within the clause 1 acts. Consequently, a right of search also arises under clause 14 in respect of a large number of clause 3 offences, because they involve clause 1 acts. Moreover, all clause 3 offences are also arrestable offences. The ordinary rights of search that arise upon an arrest for a clause 3 offence will automatically arise. Some clause 3 offences will also be serious, arrestable offences, therefore, the pre-emptive rights of search provided for in PACE will apply to them. I accept that a small minority of cases will not fall under one of the heads which I have itemised. In the great majority, where the police could properly exercise a right of arrest, they will also be able to obtain a clause 14 search warrant. To put it another way, I find it difficult to believe that there are many cases in which it would be possible to obtain a warrant for search under clause 14 where the police could not properly effect an arrest under ordinary powers. A small minority of cases may not be covered by what I have said. However, we need to be extremely careful about extending the rights of search. In the vast majority of those residual cases the police, by proceeding with the ordinary process of investigation, would be able to establish sufficient evidence to bring the charge home. However, nothing in this place or elsewhere is written in concrete and the matter must be kept under constant review. Relevant statutes will be enacted in future and there is bound to be a Criminal Justice Bill from time to time. If my hon. Friend the Member for Torridge and Devon, West is correct, I anticipate that the Government of the day may want to address the problem subsequently. New clause 3 was moved eloquently by my hon. Friend the Member for Torridge and Devon, West. I agreed entirely with what my hon. Friend the Member for Wanstead and Woodford (Mr. Arbuthnot) said on the point. The new clause refers delicately to "surveillance", but my hon. Friend the Member for Wanstead and Woodford was right when he characterised it as telephone tapping. I agreed with my hon. Friend the Member for Romsey and Waterside when he pointed out that, without obtaining additional powers, it is already possible to mount many relevant surveillances, partly because under the Interception of Communications Act 1985 that can be done with the consent of the recipient and partly because, without the necessity for additional powers, the fact of the transmission, the duration and date can already be obtained by surveillance methods. The House has long been cautious about giving to any authority the right to maintain telephone tapping of a communication. That is why the warrant of the Home Secretary is required under the 1985 legislation. Any hon. Member would be slow to ask the House to make an exception in this case. We may come back to the matter in future, but I am confident that we should not do so today. I agreed with the view of my hon. Friend the Member for Romsey and Waterside that amendment No. 18 is unnecessary. The fact that a computer may contain excluded material is not a reason for refusing a clause 14 warrant, although, of course, if the police wanted to make use of the excluded material that they found, they might have to use the special procedure set out in the Police and Criminal Evidence Act 1984. The effect of amendments Nos. 3 and 16 is to provide that the clause 14 warrant should be issued only on the authority of a circuit judge. I understand the arguments in favour of that. There are precedents for doing that, and to carry the maximum consent for the Bill I commend the two amendments to the House. I find the argument in favour of change advanced by my hon. Friend the Member for Wanstead and Woodford the most persuasive. It is not a matter of the qualifications of the justice of the peace or of the judge. The two could be equally well qualified, and I make no differentiation between the two. My hon. Friend the Member for Wanstead and Woodford was correct in saying that by entrusting that responsibility to a circuit judge we are marking the importance that we attach to the process. That is a persuasive argument. For that reason alone, I am content to accept the advice of my hon. Friend the Member for Romsey and Waterside. Let me refer briefly to amendments Nos. 5 and 6, which were spoken to so eloquently by the hon. Member for Leyton. I agree with my hon. Friend the Member for Romsey and Waterside: it is entirely right that the police should have a right of search when a circuit judge has been persuaded that an offence is likely to be committed. There are many circumstances in which the House would require the police to have a pre-emptive right of search, arising on sufficient and credible grounds. This is such a case, and I hope that the hon. Member for Leyton will not consider it necessary to press the Amendments to a Division. 12.45 pm Amendment No. 10 was also tabled by the hon. Member for Leyton, and again I agree with what was said by my hon. Friend the Member for Romsey and Waterside. It would not be right to exclude relevant, credible and admissible evidence—perhaps in the form of documents—from the scrutiny of the courts, but that would be the effect of the hon. Gentleman's amendment. In many cases, it would be difficult to determine how many people were residing in the premises for the purposes of the amendment. The concept of residence is not easy. For instance, my daughter—I am happy to say—is at university, but frequently returns to my house. Is she residing in my house for the purposes of the hon. Gentleman's amendment? That is a difficult question, and I am not sure of the answer. I raise it not to give the answer but merely to illustrate the type of problems that will arise when an application is made to the court. Amendment No. 7 is also in the name of the hon. Member for Leyton. It seeks to exclude the Security Service from the scope of the Bill. Again, I am persuaded by what was said by my hon. Friend the Member for Romsey and Waterside. We all remember the attention that was given to the Security Service last year when the Security Services Act 1989 was debated. I don't believe that the time is right for us to disturb the extremely delicate balance that was achieved by that Act, or that this is the appropriate legislation. Although I congratulate the hon. Member for Leyton on taking the opportunity to raise the matter, I hope that he will not press his amendment to a Division. My hon. Friend the Member for Havant (Sir I. Lloyd) made an interesting intervention, which had me worried for a moment, about whether the word "output" was appropriate. I have some sympathy with the hon. Member for Kirkcaldy (Dr. Moonie), who suggested that it was a horrible word. He is probably right, but it is a relief to see a definition section in the Bill. That precisely answers the question asked by my hon. Friend the Member for Havant. Although it is in an unusual place, the definition section is there—in clause 17(4)(a) and (b). I have tried to deal with the various points that have been raised, especially those of my hon. Friends. In substance, I strongly commend amendments Nos. 3 and 16 to the House. I hope that the House will accept them, and that it will not be necessary to put any other new clause or amendment to a Division.
My hon. Friend the Member for Romsey and Waterside (Mr. Colvin) described me as loosely representing the views of Scotland Yard. I should like to put it on record that my interest in this matter is that United Kingdom business and industry should flourish in the electronic era, and to do so it will need a little protection. I am also especially interested in the health and growth prospects of the software industry, and concerned that they, too, should burgeon. The industry already has a European value of £32 billion. Perhaps my hon. Friend the Member for Romsey and Waterside should know that Italy already has extensive anti-hacking laws, which it enforces thoroughly, although alas, the same cannot be said of milk quotas.Through the good offices, energy and wisdom of my hon. Friend the Member for Romsey and Waterside, we are now moving rapidly towards the criminalisation of hacking and the planting of viruses. That is why, to me, the matters remaining to be dealt with centre on police effectiveness in enforcing the provisions of the Bill. Both my hon. Friend the Member for Romsey and Waterside and my hon. and learned Friend the Minister of State suggested that only a relatively small proportion of the legislation would be "running free", to use the same phrase as my hon. Friend the Member for Romsey and Waterside—that only a small minority of cases would not be touched by the Bill as drafted. My hon. Friends agree that the Bill is not comprehensive enough to catch all the criminals who will commit the offences defined in it. We differ only on the size of the category for which it will not work. I believe that it will include by far the larger proportion of potential cases—perhaps nearly all of them. Time will prove the Bill to be unenforceable in its present form, and the police will have a catalogue of crimes to bring to justice. In 18 months' time, the worth of new clause 2 will become apparent and its purport will be adopted, perhaps in a new criminal justice Bill or by means of solid and substantial amendments to the present Bill. New clause 3 and amendment No. 18 might also properly be discussed then, although I recognise and wholly accept the intellectual and emotional difficulty of giving transmission lines different legislative treatment according to the material that they carry. My hon. Friend the Member for Romsey and Waterside was persuasive. He has succeeded in convincing me that, if I press my new clause to a vote, the consequential loss of time—and perhaps a lack of numbers—may extinguish the Bill. My hon. and learned Friend the Minister led me to the same conclusion. I cannot take such a course because, however defective the Bill may be in terms of enabling the police to catch criminals, it will allow the police co-operative powers internationally and thus it will start to bring the United Kingdom into the crucial business of protecting the information marketplace. I believe that we will go further later but, for the time being, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
Unauthorised Access To Computer Material
I beg to move amendment No. 1, in page 1, line 19, at end add—
'(4) No offence under this section is committed by any person if the computer that performs the function is the computer to which access is secured or intended to be secured, and
(a) the computer controls equipment used only for personal, domestic or recreational purposes, or (b) the computer has been lost and the access in question is secured, or intended to be secured, in order to establish ownership of the computer, or (c) the place where the computer is located can be used by unauthorised persons, and the access in question is secured at a time when that place is authorised for use by unauthorised persons.'.
With this. we may take amendment No. 2, in page 1, line 19, at end add—
'(4) For the purpose of this section, it shall be a defence to prove that the access in question was in the public interest.'.
I shall try not to delay our proceedings. Amendment No. 1 would introduce into the Bill a definition of a "computer". I made several attempts in Committee to get a definition included, or at least to restrict the extent of the problems that will arise because no definition is included. As I said on Second Reading, that is a flaw in the Bill.In Committee and on Second Reading, I said that there was a danger that a section 1 offence could apply to a variety of consumer electronics and domestic appliances that have some computing functions. At the moment, that could apply to a long list of appliances which I have listed in amendment No. 8. My opinion is shared by the well-respected barrister, Alistair Kelman, who is an expert on computer law and an occasional adviser to the police on computer-related crime. In an article in Connexion on 21 February, he wrote:
That is the point I have been making: it would be absurd for that to happen. The definition will be a problem in future, but we should try to narrow it down now, and that is the purpose of my amendments. According to amendment No. 1, only one computer would be involved and if that was used"The Bill may throw up some unlikely hackers if it survives unamended. These could include those who fax other people's letters to third parties without the author's permission and neighbours who use washing machines and microprocessors without prior consent."
no section 1 offence would be committed. Similarly, if a computer had been lost and access to it was obtained to establish ownership, that would not be an offence. If there is no proper definition, many problems will arise. I am sure that it is not the sponsor's intention that the Bill should apply to washing machines and microprocessors, but there is a danger of that occurring in future. Amendment No. 2 provides that"for personal, domestic and recreational purposes",
Amendment No. 2 is important, because it follows the line adopted by the Law Commission report in 1981 on breach of confidence. That report recommended the need for a public interest defence. That would be a useful addition to the Bill. In that regard, we must bear in mind the case of the journalist, Mr. William Goodwin, aged 24, who is a trainee reporter with a trade magazine called The Engineer. He received a telephone call that divulged confidential company information. On checking the facts with the company, he received an injunction. Despite appeals to the House of Lords, on 10 April he was fined for refusing to disclose his sources. That decision by the Law Lords has been severely criticised. A Guardian editorial on 11 April stated:"it shall be a defence to prove that the access in question was in the public interest."
That view is supported by The Economist which stated in that same week:"Only the English judiciary with their narrow and restrictive approach to free speech could have ruled in favour of commerce. British courts have a tawdry record in defending a free press. They have already been reversed in the Distillers and Harman cases, and Spycatcher will shortly follow. Once the Goodwin case reaches Strasbourg, it will be judged in accordance with article 10 of the European Convention on Human Rights which recognises the importance of a free press in a democratic society. Though it has never ruled on disclosure of sources, its record leaves no doubt that the English courts will once again be found in breach of the convention."
That is my view, as shown in amendment No. 2. It is important to try to defend whistleblowers who are acting in the public interest and who are performing a public service. That has happened in three cases. One was that of an employee of a drugs company which was dumping drugs, banned in the west, in the Third world. An employee informed the Inland Revenue that his employer, a major insurance company, was defrauding the taxpayer. Another employee informed the Ministry of Defence that his employer, a contractor, had been grossly overcharging. In those three cases, the public interest should be a defence that the courts could weigh. 1 pm I shall give the House two examples. A journalist might receive a phone call during which the caller says, "I am taking a risk in telling you this. However, if you use this number and a password, dial into the computer and read the file, you will find evidence of a disgraceful event that should be made public." Let us suppose that the journalist does that, and a story is printed about the wrongdoing. By doing that, he is condemning himself to what will be a section 1 offence, even though he is acting in the public interest. Let us suppose also that a journalist receives a smart card—not a piece of paper—containing certain data, and that he puts it into his computer to discover the information that it contains. As soon as he does that, he commits what will be a section 1 offence, even though he is acting in the public interest. What will be a section 1 offence could become the equivalent of the old and discredited section 2 offence under the Official Secrets Act 1911. Surely we do not want to go down that road. The public interest defence should be included in the Bill, and the courts could then decide whether that defence outweighed the offence that had been committed. As The Economist observed, the whistleblower still has to establish that a wrongdoing was involved in leaking information. I have introduced a reasonable amendment so that we do not drift into replacing section 2 offences under the 1911 Act with what will become section 1 offences."Under the common law of confidentiality, a company can stop a paper publishing news improperly leaked (for example, by an employee or from a stolen file), unless the paper can demonstrate an overriding public interest (for example, the revelation of wrongdoing). The company will insist that publication would do it dire harm. The judge must weigh the rival interest."
I listened carefully to the hon. Member for Leyton (Mr. Cohen). He talked about the three different categories of exemption, the first being gaining unauthorised access to
Let us suppose that the "equipment" is the radar or navigation equipment of a small aeroplane. Unauthorised access to that equipment could be extremely serious. Secondly, some computers may be used for dual purposes, for both personal and non-personal use. As drafted, the amendment would provide that those who access the computer for whatever purpose would not be guilty of an offence under clause 1. The second exemption of lost computers for which the amendment provides is surely not necessary. Unless there were a clear instruction to the contrary, an individual—someone in authority, or the police, for example—would reasonably assume that the owner of the computer would want it to be traced. Accordingly, I do not think that the second exemption is required. The hon. Gentleman's third exemption would mean that an offence would not be committed if the place where the computer was located could be used"computer controls equipment used only for personal, domestic or recreational purposes."
That exemption would surely create a legal loophole that we would not wish to enshrine in an Act. It would allow those who have authority to be in a room—for example, office cleaners late at night—to be able to gain access to a computer that is in the room without committing an offence. It would go even further. Anyone who entered the room when the cleaners were allowed in would be able to access the computer with impunity. A dishonest employee could stay behind for that purpose. The exemption would create a most undesirable loophole. On the basis of those points, I hope that the hon. Gentleman will withdraw his amendment. Amendment No. 2 makes provision for those who commit clause 1 offences to escape conviction if they can prove that they were acting in the public interest. It is most undesirable to introduce a general and vague public interest defence. The result would be to create a criminal offence that was so weak and uncertain as to call into question its very existence. The Bill must state clearly and precisely what would be the predictable consequences of committing the offences it creates. The hon. Gentleman suggests that, even though the mischief identified in clause 1 has been done, there is some differently perceived and wider interest that, in effect, means that the mischief does not matter. Surely it always matters. Such an exemption would mean that anyone—he mentioned journalists—could hack into a computer if, in his personal judgment, however misplaced, he thought that he was assisting some general public good. That undermines the offence and runs counter to the whole purpose of the Bill. I remind hon. Members that we are not talking about competing or balancing interests, as under civil law. Still less are we trying to reopen the 1989 debate on the Official Secrets Act. We are talking about outlawing and deterring unauthorised access to computers, and in particular what should be the predictable consequences of that activity. A public interest defence had no place in such a scheme. I hope that the hon. Gentleman will not feel compelled to press his amendment."by unauthorised persons … at a time when that place is authorised for use by unauthorised persons."
I profoundly agree with my hon. Friend the Member for Romsey and Waterside (Mr. Colvin). I understand the argument of the hon. Member for Leyton (Mr. Cohen), but I hope that he will feel that the case put by my hon. Friend is sufficient to persuade him not to press the amendment to a Division.
I take the point, and I shall not press my amendment. However, I hope that my point about the public interest will be picked tip at some future date. We may well have to return to it in relation to this Bill. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Relevance Of External Law
I beg to move amendment No. 13, in page 6, line 16, leave out
and insert'in their opinion the condition is not satisfied'
', on the facts as alleged with respect to the relevant conduct, the condition is not in their opinion satisfied'.
With this we will discuss Government amendments Nos. 14 and 15.
These are splendidly technical and wonderfully complicated amendments. I shall summarise the effects of amendments Nos. 13 and 14. Clause 8 provides that offences are triable under clause 4(4) provided that the act complained of would involve the commission of an offence under the law where it was intended to take place. Clause 8(5) provides for a presumption that the act complained of is unlawful unless the defendant serves a counter notice requiring the prosecution to prove illegality.On further consideration of the Bill, it was felt that it might have the effect of compelling a defendant who did not service a counter notice to accept both the acts complained of and the criminal intention attributed to him. That was not the purpose of the Bill, and out of an abundance of caution this group of amendments has been introduced. Amendment No. 15 deals only with Scotland. It would enable the prosecution to present oral or documentary evidence during the hearing, which would otherwise be inadmissible because the defence had not given the prescribed notice in advance. As I said, the amendments are technical and complicated, but I hope that the House will accept them.
Amendment agreed to.
Amendments made: No. 14, in page 6, line 18, at end insert—
'(5A) In subsection (5) above "the relevant conduct" means—
(a) where the condition in subsection (1) above is in question, what the accused intended to do or facilitate; (b) where the condition in subsection (2) above is in question, the agreed course of conduct; and (c) where the condition in subsection (3) above is in question, what the accused had in view.'
No. 15, in page 6, line 21, at end insert—
'( ) If by virtue of subsection (6) above a court of solemn jurisdiction in Scotland permits the defence to require the prosecution to show that the condition is satisfied, it shall be competent for the prosecution for that purpose to examine any witness or to put in evidence any production not included in the lists lodged by it.'.—[Mr. Douglas Hogg.]
Search Warrants For Offences Under Section I
Amendments made: No. 3, in page 8, line 36, leave out
'justice of the peace'
and insert 'circuit judge'.
No. 16, in clause 16, page 11, line 4, leave out 'The reference in section 14(2)' and insert—
'In section 14—
(a) the reference in subsection (1) to a circuit judge shall be read as a reference to a county court judge; and (b) the reference in subsection (2).'.—[Mr Cohen.]
I beg to move amendment No. 12, in page 11, line 44, after 'computer', insert
I have suggested to my hon. and learned Friend the Minister outside the Chamber that as clause 3 creates the offence of the unauthorised modification of computer material, clauses 3(6) and 17(6) may create a loophole that my hon. and learned Friend and my hon. Friend the Member for Romsey and Waterside may care to consider. The question is of the back-up of computer data, normally in a secure location separate from the main system. I wonder whether the fact that the material is held at a separate location, away from the main computer, may mean that it will not be covered by the legislation—so that if someone physically attacks the back-up data, by exposing it to magnetism, for example, that action will not constitute an offence.'or by any other means.'
My hon. Friend has explained that the amendment's purpose is to bring damage to computer data storage media that are not held in any computer, and achieved other than under normal conditions of operation, within the meaning of the clause 3 offence. My hon. Friend is right in thinking that the offence does not extend to such conduct, but I do not believe that it should.I know what my hon. Friend has in mind and appreciate how damage could occur and that the consequences of such behaviour could be serious—particularly if a data storage medium was exposed to a magnet or if someone scraped his fingernails across a floppy disk, which could seriously inconvenience the data user. If the original material had not been backed up, the loss would be doubly serious. However, I do not accept that such conduct, remote as it would be from the computer itself, threatens the integrity of the computer in the same way as the conduct that is the subject of clause 3. Such an activity is more akin to criminal damage. Given my response, I hope that my hon. Friend is persuaded not to pursue her amendment.
In view of my hon. Friend's remarks, I beg to ask leave to withdraw the amendment.
Amendment, by leave withdrawn.
I beg to move amendment No. 19, in page 12, line 11, after 'program,' add—
This amendment raises a new point, centring on the admissibility of evidence. Some computers have a means of policing themselves to the extent that they can produce logs of unauthorised activities. However, if such logs are produced as crucial evidence in criminal proceedings, there could be problems, because section 69(1) of the Police and Criminal Evidence Act 1984 requires the production of a certificate stating, among other things,'(11) Reference to evidence obtained from the contents of a computer, in this Act, shall be admissible as evidence, albeit that the computer has been the subject of unauthorised access.'.
for that, read computer log,"that there are no reasonable grounds for believing that the statement"—
It may be argued that because the computer has been accessed by an unauthorised use, that renders evidence produced by the computer tainted. Under the Bill, it will be for the prosecution to show reasonable grounds for believing that the evidence produced has not been affected by the unauthorised access to the computer. There could be all kinds of evidential problems in that respect, so I commend amendment No. 19, which would make such evidence gained admissible in court."is inaccurate because of improper use of the computer."
The effect of amendment No. 19 is to provide that even though there may have been unauthorised access, a computer-generated record should be admissible as evidence. In view of my earlier explanation about PACE I do not believe that that is necessary or desirable. The fact that unauthorised access has occurred would not render inadmissible any evidence produced by an affected computer. It would be up to the prosecution to show, if necessary, that access did not materially affect the evidence.There seem to be some misconceptions about the operation of the PACE provision. Computer printouts used in computer misuse cases would usually be provided to show the internal state of a computer and how it was interfered with. That evidence would support any oral testimony given by the person responsible for running and monitoring the computer. In such cases, it would not fall within section 69 of PACE. However, if the printouts were used as direct evidence, they would fall within section 69 of PACE. That is right, as it provides the safeguard that if computer records alone are relied upon, they are reliable. We should bear it in mind that computers are not predictable or wholly reliable. In criminal cases a person's liberty is at stake. In most cases computer-generated evidence would probably be only a small element in the case provided by the prosecution. Evidence is likely to come from a number of sources and could include the results of monitoring equipment with expert testimony from a licensed telecommunications operator, as well as material evidence such as notebooks. No amendment covering this subject should be dealt with in the relatively narrow context of such offences. If any amendment to the Police and Criminal Evidence Act is justified it should apply to the criminal law as a whole, and should be considered in the context of the 1984 Act. On that basis, I hope that I have persuaded my hon. Friend the Member for Torridge and Devon, West to withdraw her amendment.
I hope that the complexity of these matters, has become clear to the hon. Member for Birmingham, Hodge Hill (Mr. Davis), who earlier laughingly complained that we would have to spend an hour and a half discussing the Bill—that was only halfway through the morning. He complained that he had to listen to me and I apologised. The complexity of the matter shows that we need considerably longer than the short time allowed for debate this morning.
It is always a pleasure to listen to the hon. Lady's arguments, and Opposition Members have paid close attention to her arguments in Committee and on Report. I was not seeking to inhibit or constrain the hon. Lady from advancing arguments for subsequent amendments. I stayed to listen to them. I was suggesting that her interventions in the speech of the hon. Member for Walthamstow (Mr. Summerson) were perhaps unnecessary and that we could have had even longer to listen to her arguments for these important and interesting amendments, had she not helped to waste time—in the interests of the Government Whips and the Privy Council—which also put in jeopardy other meritorious Bills on the Order Paper.
I accept gracefully the hon. Gentleman's comments. It is difficult to bring a Bill of such complexity to the House as a private Member's Bill.I congratulate my hon. Friend the Member for Romsey and Waterside (Mr. Colvin) on his outstandingly good work. For once, I am persuaded to withdraw my amendment. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Order for Third Reading read.
I beg to move, That the Bill be now read the Third time.This is a particularly important measure and I am pleased that hon. Members have seen fit to approach it in a critical but welcoming manner. The consultations which I have had with interested parties have convinced me that there is a great deal of misuse of computers and computer systems, although it is not possible to quote any substantiated figure. The increased dependence that modern society places on information technology suggests that misuse is destined to become more widespread in the future. You may have read the press reports on Wednesday, Mr. Deputy Speaker, about a hacker who is alleged to have gained access to the computer of several academic institutions. His actions caused damage amounting to £25,000. I cannot comment on that case; it is sub judice. However, I draw attention to a case in the United States—that of Mr. Robert Morris. In 1988, he released what became known as the Internet worm. That program infiltrated and paralysed several thousand computers in the United States. It filled then with useless data and consequently overloaded them. Mr. Morris is due to be sentenced shortly, having been convicted of
The loss that he caused was very much greater than that. The maximum penalty that he faces in the United States is five years in prison and a fine of $250,000. That is not dissimilar to the penalties that he would face if he had been convicted under the Bill. Those are just two examples of the havoc that hackers can cause. I was extremely fortunate during the passage of the Bill to have the benefit of an excellent report published by the Law Commission. The Bill is based on that report. I diverge from the commission's recommendations in only minor respects, simply to reflect the further discussion that the report stimulated. The Bill's underlying policy remains very much in line with the commission's recommendations. That is a great compliment to the enormous amount of work that was done by the commission, under the guidance of Mr. Richard Buxton, QC, in producing its report and to the fact that it was able to reflect accurately the needs of computer users. The Bill was considered in Standing Committee for three weeks. During that time the members of the Committee had the opportunity to deliberate on a wide range of issues. Without the process, the Bill would not be in such good shape and I should not be so confident as I am now of its ability to withstand close scrutiny in the courts. The courteousness and helpfulness of hon. Members in Committee played no small part in that process. Legislation alone cannot be the answer to stopping the misuse of computers. It is important that users recognise the need to protect their systems against intrusion. During the relatively short period—about four months—that I have been interested in the subject since I was successful in the ballot for private Members' Bills, I have attended 12 conferences and seminars on computers and computer systems. It is significant that 10 out of the 12 concentrated on computer security. The industry takes the problem very much to heart. Proceedings on the Bill have to some extent focused attention on the problem. I am pleased that the Department of Trade and Industry is running a three-year awareness campaign to bring home that point. Practical security and this legislation complement each other admirably. I take this opportunity to thank all those who have helped the Bill to reach its current stage of preparedness, including the representatives of the many organisations, companies and individuals outside the House who have helped me to iron out any deficiencies prior to and after the Bill's introduction. In particular, I thank the representatives of the Confederation of British Industry and the CBI computer users group, and also the small group of legal and technical experts who gave me a great deal of advice and help during the various stages of the Bill's progress through the House. The House has taken the opportunity to signal the fact that computer misuse runs contrary to the public interest. I feel satisfied that we now have an appropriate vehicle with which actively to discourage that behaviour and to prosecute those who attempt to defy the law."intentionally and without authorisation gaining access to federal computers, preventing the authorised use of the machines and causing a loss of at least $1,000."
I congratulate the hon. Member for Romsey and Waterside (Mr. Colvin), who has done a good job with his Bill. He has been meticulous in answering the points raised at various stages, including today. The Bill makes hacking a crime and makes it clear that it is not an acceptable practice, a view shared across the House. The point about it being remote burglary is also relevant.However, it contains flaws, which I tried to make clear during our debates on the Bill. There is a danger that it will lead to criminal law being brought to bear in consumer electronics, just because of the presence of computer-like functions. That could lead to some farcical prosecutions, although I hope that it does not. The Bill has extended penalties more than the Law Commission originally proposed. Possible computer misuse by the security services was an issue that I raised today and about which I am still concerned. The matter of the public interest defence not having proper weight was also discussed, and that could bring problems in future. Another flaw is that computer owners have not had a duty placed on them or been encouraged to ensure that they have proper security measures. The advice of the Data Protection Registrar has not been fully followed in relation to that. The two biggest flaws are that the Bill does not define or give guidance about what a computer is. It is left to the police and the judiciary to interpret, which could lead to funny decisions. The search-and-seizure power could also be abused. I appreciate that that at least has been dealt with today in a spirit of compromise by the hon. Member for Romsey and Waterside, who accepted the amendment which provided that only a circuit judge can authorise such warrants, and I am pleased about that. There are some flaws but, in all, I think that the hon. Gentleman has done well. The flaws mean that the House will have to improve the measure at some time, but we shall first have to see how it works. I suspect that it will not be the last legislation on computers. I congratulate the hon. Gentleman on the Bill.
I wish to emphasise the importance of the legislation and thank those who have been particularly active on it. When I was first approached by various companies and the Telecommunications Managers Association, for which I work on parliamentary matters, I was surprised that people put such emphasis on the problems of hacking and other computer misuse.My hon. Friend the Member for Romsey and Waterside (Mr. Colvin) had previously had no experience of computers, but he has become a computer misuse expert within a short period. It is wonderful to see how he has taken a complicated subject and understood it so well. In Committee that understanding was passed back in such a way that even those of us involved in the computer industry were able to understand it better. He is to be congratulated on the work that he has done. Two other people stand out in our consideration of the Bill. First, my hon. Friend the Member for Torridge and Devon, West (Miss Nicholson) was instrumental in emphasising to the House just how important the subject of computer misuse has become. Secondly, I appreciate that, when the hon. Member for Leyton (Mr. Cohen) is praised by deepest Dorset, it may damage his street credibility, but these are heartfelt and sincere remarks. My hon. Friend the Member for Torridge and Devon, West has constantly asked whether the Bill is tough enough to be effective and to catch those who must be caught by the legislation, whereas the hon. Member for Leyton has asked whether it will catch too many people, and those whom it is not supposed to catch. Those two conflicting views constantly being put in Committee led to us considering the Bill carefully. It is much better for those two conflicting forces. Those hon. Members may not appreciate the extent of their influence on the Department's recommendations or on my hon. Friend the Member for Romsey and Waterside. When considering civil liberties—I appreciate that the hon. Member for Leyton is keen on that issue—we must protect the civil liberties of the computer user. Someone's confidential data and information kept on a computer should not be accessed by hackers, who use it mischieviously. That is an important civil rights issue. The Bill is good and goes as far as we should without testing how it acts in practice. I commend it to the House.
The hon. Member for Dorset, South (Mr. Bruce) is right to say that in the Bill we have tried to balance the civil rights of people to enjoy privacy of information and communications and those of people to ensure that they are not harassed and that the Bill or similar powers are not abused. Hon. Members have been conscious of the need to strike a balance. Whether we struck the right balance will be for others to decide later.I entirely agree with the hon. Gentleman's description of our objectives. There have been differences between, on the one extreme, the hon. Member for Torridge and Devon, West (Miss Nicholson) and, on the other, my hon. Friend the Member for Leyton (Mr. Cohen) but there has been much unanimity. Hon. Members have tried to strike that balance. I associate myself with the congratulations already expressed to the hon. Member for Romsey and Waterside (Mr. Colvin), not only on his initiative in introducing the Bill but on his clear and impressive grasp of the technical issues involved. I have learnt much from listening to him. I congratulate the hon. Member for Romsey and Waterside for a different reason. The Bill will become an Act of Parliament. He deserves to bring it to that stage of success because of how he conducted it in Committee. He was courteous and listened to both extremes. If he was unable to answer objections or to carry hon. Members with him he was willing to compromise to achieve a Bill that is acceptable to as many people as possible. He deserves to be congratulated on how he conducted the Bill. Some other hon. Members could learn from his example; I have learnt much from him.
I, too, should like to congratulate my hon. Friends the Members for Romsey and Waterside (Mr. Colvin) and for Torridge and Devon, West (Miss Nicholson). The Bill is important to the computer industry and to large and small computer users. It is all very well saying that many of the hackers have been students who were just having fun on computer systems——[Interruption.]
Order. Conversations are very distracting. I hope that the hon. Member will be allowed to continue his speech uninterrupted.
Students may have had their fun at times, but they have caused enormous costs for major computer system providers. That fun must stop, and the legislation will help to stop it.Malicious abuse of computer systems has caused major problems and enormous costs for big computer users. We have not had a system of law capable of satisfactorily dealing with these matters. This legislation will he a major step forward in helping to catch some of the wrongdoers. There will inevitably need to be developments in legislation to cover computer use.
When my hon. Friend the Member for Dorset, South (Mr. Bruce) talked about the input into the debate of various hon. Members, it almost sounded as though we were having a classic debate between the shire counties and inner-city areas. The movement among Conservative Members has come from Dorset, Devon, Hampshire and other shire counties and among Opposition Members from city areas, led by the hon. Member for Leyton (Mr. Cohen).I pay a warm tribute to my hon. Friend the Member for Romsey and Waterside (Mr. Colvin) for his clarity of thought. He recognised that new criminals were still operating within the old framework of anti-social activity and that rapid action and new legislation were required to encompass their wickedness. I have immensely enjoyed working with my hon. Friend on the Bill. All of those who have backed his efforts and the Bill have found it a valuable, enjoyable experience. It has been a pleasure to watch my hon. Friend forge ahead and to put to the House and Committee the crucial points that needed to be covered. I should like to leave my hon. Friend the Member for Romsey and Waterside and the other sponsors with the thought that Shakespeare, among his many other qualities, must have been computer-literate. He talked about the worm in the bud and said that if the worm was not detected and stopped, it would destroy the rose. The Bill's effectiveness will rest on detecting the worm. Without the ability either to prise apart the petals through powers of search or to listen in through monitoring, the police will have a tough job. Shakespeare was computer-literate too, and that is why we may have to look again at our friend the worm.
I congratulate the Bill's sponsors and commend the Bill to the House.
Question put and agreed to.
Bill read the Third time, and passed.
Rights Of Way Bill
As amended (in the Standing Committee), considered.
Order for Third Reading read.—[Queen's Consent and Prince of Wales's Consent signified].
I beg to move, That the Bill he now read the Third time.No part of rural life has been more marked by dissension and by the setting up of barriers than the law on footpaths. I am proud that for, I think, the first time in parliamentary history we have reached Third Reading having achieved broad agreement on a difficult issue. I pay tribute to all members of the Committee—not just Conservative but Labour Members who have taken a close interest in the Bill, especially the hon. Member for Denton and Reddish (Mr. Bennett), who is a well-known authority on footpaths and who has played a prominent part in persuading his colleagues of the Bill's merits. They may not have needed persuading, as the Ramblers Association is very much in favour of the Bill and would be bitterly disappointed, as would the millions of walkers, if the Bill was not to proceed to its final stage today. I hope that we can have a debate—but not too long a debate—and that millions of walkers and members of the Ramblers Association, who have followed the progress of the Bill so closely, will be rewarded by seeing what is a compromise, but a strong compromise, and a worthwhile Bill complete its Commons stages today and proceed to the House of Lords. I thank not only hon. Members of all parties who have seen the Bill through to Third Reading, but members of the working party from the Ramblers Association and from the National Farmers Union, officials from the Department of the Environment and from the Ministry of Agriculture, Fisheries and Food, and my hon. Friend the Member for Saffron Walden (Mr. Haslehurst) who chaired the statutory working party on rights of way. I thank them for spending literally hundreds of man hours on producing a complex Bill in a highly complex area of statute. They have achieved a carefully considered Bill. I and my hon. Friend the Minister had to prove no fewer than 43 amendments in Committee so that lawyers in the Department of the Environment and in the Department of Transport could be satisfied that the Bill was fit to proceed to statute. Hon. Members may recall that, on Second Reading, I referred to the benefits of the Bill and to the fact that it will help everyone with an interest in the footpath network. Many are involved, whether hard-pressed farmers, local authorities charged with safeguarding the public rights of passage or the millions of people who use footpaths, bridleways and other minor highways for healthy relaxing exercise and to savour the great beauty of our countryside. Put simply, the Bill rewrites the unsatisfactory and largely unenforceable provisions on ploughing and rights of way in sections 134 and 135 of the Highways Act 1980. For the farmer, it replaces the limited "right to plough" across fields, footpaths or bridleways with a new wider right to
as necessary. Such disturbance could take place at any stage of cultivation. The right will apply regardless of the type of machinery used, so for the first time it gives the farmer clear statutory authority to disturb paths when carrying out the full range of essential operations. I have taken great care to consult the farming community on the Bill. I know that it has not been an easy time for farmers, although I hope that, with the recent success of the green pound negotiations, things will ease up for them. I am pleased to say that the National Farmers Union, the Country Landowners Association and the local Lincolnshire National Farmers Union all support the Bill. As I represent an agricultural constituency, and as I accept the strong power of the NFU in this place, it would have been unwise to proceed with a Bill that did not have the support of the farming community. The Bill will also introduce a new section 135 to the Highways Act 1980. It provides for consent to be given to the disturbance of paths in the course of any other "excavation or engineering operation" which is not directly related to the cultivation of a particular crop, such as the unavoidable disturbance to paths which occurs when installing or renewing field drains. The path or way can be diverted temporarily for up to three months where necessary. Of course, the Bill provides a balance. There is a balance on the other side, which is why the Bill is supported by the Ramblers Association. The largesse towards the farming community is matched by a stricter duty on farmers to restore quickly paths that have been disturbed to such a condition that they are easy to use, by showing the line of the path on the ground. That duty is the key to the Bill. Where the disturbance is the first in a cycle of cultivation—if I refer to this as the ploughing period, hon. Members will know what I mean, although with modern farming methods a plough as such may not be used—under the Bill that must be done within 14 days. For any subsequent operations, a path must be restored and marked within 24 hours. Either period can be extended by the authority—where it is justified—for up to 28 days. That will overcome what has proved to he a major problem for walkers and riders, and will help to reduce accidental trespass. Users will know what line to take across what can sometimes be, with today's larger fields, an extensive and featureless tract of land. In recent years that has become the major problem for ramblers and walkers, much more so than impenetrable obstacles. It is the sight of an enormous field of growing wheat, with no clear line of path, which is a major deterrent to the possibly millions of people who wish to use and enjoy our countryside. The Bill will deal specifically with the related problem of paths that are difficult to use because of crops growing on them or encroaching from the sides. That, too, is a major deterrent for anyone wishing to use our path network and one that the authorities can deal with only when the crop has developed to the stage of physically obstructing the path, long after most users have been deterred. New section 137A will place the occupier under a clear duty to keep all rights of way and other unsurfaced highways apparent on the ground and clear of any crops that would make the path inconvenient to use. The crops in question are mainly arable. Oilseed rape, the planting of which is increasing in our countryside, is a particular problem. It stands out as a vivid shade of yellow. Some people do not like it. although personally I like large splashes of colour. I do not know what Monet would make of it as I do not suppose that oilseed rape was as common in the fields of France then as it is now. The problem is that oilseed rape does not stay yellow and beautiful for long. It is a major deterrent to walkers and riders who wish to use the countryside. It grows vigorously to become a dense, utterly impenetrable jungle, reminiscent more of the tropical rain forests than of the British countryside. Pushing through acres of wet, knee-high corn is a daunting and unrewarding exercise. I hope that under the Bill those problems will no longer have to be endured. People will ask why people are deterred by growing corn. There is a myth that most walkers in the countryside have stout boots, wear beards, are members of the Ramblers Association, are equipped with up-to-date Ordnance Survey maps and know their exact rights and where they are going. However, Countryside Commission surveys show that most people who walk in the countryside are not so equipped, use paths only occasionally, and are often deterred by the sight of a large field of rape or corn with no apparent line on the ground. The duty to keep paths clear of crops does not, however, apply to grass, which is defined in the Bill as"disturb the surface of the path or way"
No one could object to walking over ordinary pasture land or through a pleasant hay meadow. I remember from my youth that I did not object to walking through long grass with my then girlfriend. The duty to enforce the new requirements rests with the local highway authorities. Proceedings can also be brought by the district council for the area, or the local parish or community council. Hon. Members will appreciate the fact that prosecution by members of the public is a sensitive subject in the farming community. We have therefore been careful to carry forward the restrictions that exist under the 1980 Act. Members of the public will not be able to bring a prosecution against a farmer for failing to restore a disturbed surface or for the illegal disturbance of a surface—the direct successor to ploughing offences under existing legislation, in which prosecutions are similarly restricted. That is a major concession that the members of the working party and I made to the farming community in trying to hammer out a compromise, and I hope that the farming community will recognise it as such. The Bill also removes a difficulty faced by authorities in bringing prosecutions. It provides that the occupier of the land will be clearly held responsible for the disturbance of a footpath or bridleway regardless of who carried out the work on his behalf and of any crops growing on it. Nor will authorities have to establish what kind of machinery has been used to disturb the surface. The major problem that local authorities have faced has been in identifying the person responsible, and the removal of that difficulty should make it much easier for local authorities to enforce the law. The fact that a surface remains disturbed after the time by which it should have been restored will be sufficient. Even so. prosecutions are inevitably slow and time-consuming, and authorities are likely to consider them only as a last resort. If there is a key provision in the Bill, it is schedule 12A, to be inserted in the 1980 Act. That gives highway authorities—or district councils if acting on their behalf—simple direct powers to enter the land and carry out the work wherever an offence has been committed. The power to act in default will be a major boon to local authorities. I hope that it will clear up the muddle in footpath law and convince authorities that they cannot go back to those who put them in charge of footpath law and say, "I am sorry. It is all too complicated. We do not have the time to bring prosecutions." If there has been a clear violation of the law—if a path is marked on a map and members of the public want to use it and the line of that path is not apparent because crops have been allowed to grow on it—local authorities will be able to act in default. They will not have to go through the time-wasting procedure of bringing prosecutions through the courts. In addition to the requirement to mark the line of the path on the ground, that schedule is the key provision of the Bill and accounts for much of its benefit to ramblers. The provision will ensure that the new legislation is observed as a matter of course by the whole farming community. The deterrent to the farmer will be not that he may end up in court and be fined after months or even years but that the local authority will simply be able to do the work for him. Then, of course, the local authority will charge the farmer for the work. With the stricter duties on farmers and the stronger powers given to local authorities, it is desirable to define the exact width of the right of way, and that we have done. Hon. Members may be surprised to learn that there is no general statutory width for the various types of right of way. Some paths have a legally recorded width. The width might be included in the description of the path given in the statement that accompanies the definitive map, or it might he referred to in some other historic document, and where that is the case that width will apply; it will not be affected by the Bill. In general, however, no such widths are recorded and it has been necessary to devise figures for the width of various classes of rights of way. Quite what those widths should be was the subject of long debate in the working party. The figures chosen, which are based on advice from the County Surveyors Society, demonstrate the consensus that emerged within the working party. Such consensus has never been achieved before; it has certainly never been translated into statute. That is why Parliament has allowed the Bill to proceed as far as it has. In effect, two figures are given, a minimum width and a maximum width, and those figures are set out in new schedule 12A. The minimum width is the minimum that the farmer would have to work to if he was to avoid running into trouble with the authorities. That is the figure that would be taken into account in any prosecution. For a cross-field footpath, the minimum is 1 m or about 3 ft 3 in. For a bridleway it is 2 m or about 6 ft 6 in. Where a footpath or bridleway is on the edge of a field, those figures are increased to 1·5 m and 2 m respectively, and for any other type of highway the minimum figure is 3 m or about 10 ft. The maximum width is simply the maximum to which the authority may work when carrying out work in default of the occupier. That figure is 1·8 m for a footpath—roughly 4 ft 6 in. For a bridleway it is 3 m, or 10 ft, and it is 5 m, or 16 ft, for any other type of highway."a variety or mixture commonly used for pasture, silage or haymaking".
I want to raise a point that is important for the horse world. If the bridleway was wider than the maximum width that my hon. Friend has just described, who would pay for the extra width—or is that a matter that we need not discuss now?
I do not believe that it arises in the Bill. We have set minimum and maximum widths, but we must accept that those are loose definitions and broad guides. I have taken particular care to reassure the British Horse Society, of which my hon. Friend the Member for Ealing, North (Mr. Greenway) is such a distinguished member, on that matter.I am a keen rider and I am sure that the horse world has concluded that, although it would have liked a greater width for bridleways, the Bill provides a fair compromise. With regard to horses, we must remember that the width of the path as it runs through the middle of the field is not the most important point, as I have stressed before. When one is riding a horse, the difficult part of the path is that which runs close to a hedge or a wire. In the Bill we specifically set a wider width beside a hedge or wire. I can reassure my hon. Friend the Member for Ealing, North about this point, which he has raised before. When we are considering a footpath that runs across the middle of a field, if for some reason the horse has to veer to the side of the path, that should not affect matters. The Committee dealt with those points of detail very carefully and I do not believe that I need to labour them now. We passed 43 amendments in Committee designed to make the law clearer and to clear up any ambiguities. The amendments ensured that the Bill could not be seen to apply to major carriageways. There may be some problems about that, but I believe that the farmers and local authorities now have a sporting chance to know exactly what is a field path and a bridleway and also know their duties in that regard. The other major amendment that we made in Committee brought the penalties under this Bill into line with other Home Office penalties. The Bill is a comprehensive package of measures which balances a range of conflicting interest. As such, I commend it to the House.
On the Third Reading of the Computer Misuse Bill the point was made that the interests of different people had to be balanced. This debate is similar in that we must balance the interests of people who, like myself, enjoy walking in the countryside—something that I try to do every weekend—and the interests of the group described loosely by the hon. Member for Gainsborough and Horncastle (Mr. Leigh) as the Ramblers Association.Members of the Ramblers Association do excellent work on behalf of their members and other people such as I. However, we must also consider people who, like a large number of my constituents, live in urban constituencies and who visit the countryside at weekends for recreational purposes. The Bill is also in their interests. I do not wish to digress too far. The hon. Member for Gainsborough and Horncastle referred to the problem of oilseed rape which makes it difficult to walk along rights of way. However, there are also health problems from rape, and my hon. Friend the Member for Kirkcaldy (Dr. Moonie) could describe them in some detail. It has become clear in recent months that many people have an allergy to rape. That allergy causes a great deal of ill health in the summer months and the problem has only recently been attributed to that crop. But there are the interests of farmers. I speak with some knowledge about those interests—I do not wish to detain the House for long, however—because all my brothers-in-law are farmers. They seek every opportunity to impress on me their interests and, as they see it, the damage done to their crops by walkers. As the hon. Member for Gainsborough and Horncastle has fairly said, however, the Bill is supported by many Labour Members. The hon. Gentleman mentioned my hon. Friend the Member for Denton and Reddish (Mr. Bennett), and another sponsor is my right hon. Friend the Member for Birmingham, Small Health (Mr. Howell). I know that my right hon. Friend is keen that the Bill should pass through the House this afternoon and become an Act. The only risk to the Bill making progress this afternoon—I say this with some regret—has been posed by the hon. Member for Gainsborough and Horncastle. In making a silly, provocative and bogus point of order two or three hours ago, he invited Mr. Deputy Speaker to allow points of order to be raised by other hon. Members—they would have been entirely out of order—on the results of local elections, on the poll tax and on other partisan political matters. That was unfortunate. I regret also that the hon. Gentleman participated in what I regard as filibustering during the consideration of the Computer Misuse Bill. In doing so, he put at risk this important Bill. If my hon. Friends and I wished to speak for a long time on the Bill's Third Reading, I am sure that we could do so. If we were petty enough to wish to pay back the hon. Member for Gainsborough and Horncastle in his own coin, it would be easy to do so. We shall not do that, however, because too much is at stake. The Bill is in the interests of ramblers and all others who enjoy the countryside at weekends. We must seek to ensure that the Bill's Third Reading is completed this afternoon so that it can become an Act. I am conscious that if we allow the Bill to continue on its passage, but take a long time to do so, we shall prejudice the chances of the Road Traffic (Temporary Restrictions) Bill in which the hon. Member for Nottingham, South (Mr. Brandon-Bravo) has an interest. I understand that he has come here all the way from Nottingham fresh from the local elections, which we shall not discuss, to seek to get the Bill through the House. I do not want to prejudice that measure in any way and, therefore, I shall curtail my remarks. I regret that the hon. Member for Gainsborough and Horncastle engaged in such a high-risk tactic earlier in our proceedings.
I shall be brief, Mr. Deputy Speaker. I apologise for not having been in my place for the first stage of the Third Reading of the Bill, of which I am a sponsor and in which horse riders have a keen interest, as my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) rightly said.The fact that bridleways will now be required to be kept in place and to be properly maintained will overcome the disappearance of bridleways in recent years because of a lack of proper maintenance. In some cases, they were little used. A bridleway can go out of fashion, as it were, and not be used very much by riders or walkers for a period. When this happens, a bridleway is often lost. Many a farmer has ploughed up a bridleway deliberately, thereby absorbing a public right of way in his farm, and many bridleways have been lost for ever. I am pleased to speak on behalf of the 3·5 million people who ride horses. They include people on low incomes as well as those on above-average incomes. I am most interested in the low-income group who ride. I have championed their cause all my life. In many instances they have lost the facility of access to the countryside and enjoyment of the countryside where it should not have been lost. The Bill will ensure that that does not happen in the future. Some bridleways have, to farmers' displeasure, run across the middle of fields. When farmers have had such bridleways ploughed up, they have not been reinstated elsewhere on their land. That cannot be allowed to happen any more, and, as a result of the Bill, it will not. If a bridleway disappears to suit a farmer, it will have to be resited elsewhere. That is of the greatest importance. We cannot afford the loss of any more rights of way in the countryside bearing in mind the fact that an area the size of the Isle of Wight is lost every year to concrete and buildings. That is disgraceful. Our increasing population has fewer and fewer facilities where it can enjoy recreation by walking, angling or riding. That is extremely serious. I am sure that my hon. Friend the Member for Gainsborough and Horncastle will correct me if I am wrong, but I assume that, should a rider be forced to leave a bridleway—perhaps when riders from opposite directions meet—he will not be subject to prosecution. That could occur if both riders were riding fast horses. Provided that the rider kept as close as possible to the bridleway that he had been forced to leave, I assume that there would be no prosecution. Of course, if the rider strayed across the field, he would come under the criminal law of trespass, which is a serious matter. I shall assume that if a rider leaves the bridleway to avoid one or even two riders coming in the opposite direction, there will be no prosecution. Were Ito be wrong, I am sure that my hon. Friend would have corrected me by now.
I could not be present for Second Reading of the Bill, so I am glad today to welcome it and to make a few brief comments before we send it on its way. The Bill attempts to reconcile the conflicts that occur between the different uses and users of the countryside. However, I wish to add a word of caution. We frequently have too great an estimate of the effect of the laws that we pass. It is all very well to define the rights of use of a footpath and the rights of a farmer to divert it for a particular period, but if one is walking along a footpath and, when about to cross a stile, sees a bull in the next field, there is no time to stop and find out whether the bull is safe, regardless of the farmer's assurance that it is. If the bull is unsafe, there is no time to start a prosecution.Like the hon. Member for Birmingham, Hodge Hill (Mr. Davis), I spend most Sundays and holidays walking either in the countryside or in the mountains. When a footpath is diverted, most walkers are prepared to take a route round a field, rather than through it. However, the cause of ramblers is not helped by the minority who regard anyone prepared to walk round the field as—to use their phrase—a forelock toucher. They regard rambling as a perpetual opportunity to relive the mass trespass on Kinder Scout in the last century. All who use the countryside are anxious to ensure that the rights of other users are respected. However—this touches upon the point made by my hon. Friend the Member for Ealing, North (Mr. Greenway)—the use of a footpath in one way might make it impossible for it to be used in other ways. There are many examples of that in my constituency. For example, the frequent use of a footpath by horses has made it unusable by human beings. However much the legislation defines footpaths and who is entitled to use them and when, it does not get round the problem that there are both selfish and unselfish uses. Users must always remember that others also wish to use the footpath. As was pointed out on Second Reading, bike scrambling is an increasingly popular hobby, especially in the mountains. Last summer, I spent some time on the northern lakes and fells. Perhaps I may warn you, Mr. Deputy Speaker, that I am not about to use unparliamentary language when I refer to the fells across which I walked as Great Cockup—for that is their name. Lower down the fells was a group of mountain bike scramblers. Because of the remoteness of the area, and because they stuck to a defined route—having deliberately picked an area where they knew not many people were around—the noise and colour of that biking procession added a great deal to the day. However, I am equally sure that we have all seen examples—which are particularly common on the ridgeways—where the use of scrambling bikes on a well-used path detracts from everyone's enjoyment. I conclude by saying to my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) that I greatly welcome the Bill, which I believe will do much good—but we should be wary of ascribing to it the change in motives and in patterns of thinking that will be necessary if it is fully to work.
My hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh) is to be congratulated on the way in which he has conducted the progress of the Bill. It has the Government's support, and I commend it to the House.
Question put and agreed to.
Bill accordingly read the Third time, and passed.
Road Traffic (Temporary Restrictions) Bill
Not amended (in the Standing Committee), considered.
Amendments not moved.
Order for Third Reading read.
I beg to move, That the Bill be now read the Third time.I am grateful for the opportunity, in the closing minutes of today's business, to speak to the Third Reading of my Bill and to explain briefly its broad purposes. As you know, Mr. Deputy Speaker, the Bill received an unopposed Second Reading. As a private Member, I am greatly honoured to be able to present a Bill to the House. It is not an honour that many right hon. or hon. Members have an opportunity to enjoy. I should like to record also my gratitude to all those who have assisted the passage of the Bill. As it is in some respects a technical measure, I pay tribute to the Ministry of Transport officials who assisted me with the queries that arose, and with the amendments that were tabled. I thank also the organisations that either wrote or came to the House to express their concerns and to seek reassurances. They included the Ramblers Association, the British Horse Society, the National Farmers Union, the Freight Transport Association, and the Automobile Association. They have all contributed to the Bill. I express sincere thanks for the contribution made by the Opposition, particularly by the hon. Member for Crewe and Nantwich (Mrs. Dunwoody), who led the Opposition in Committee. Given that mine is such a modest Bill, you may be surprised to learn, Mr. Deputy Speaker, that I received the assistance of no fewer than three Ministers—my hon. Friends the Members for Derbyshire, West (Mr. McLoughlin), who assisted me in Committee; for South Ribble (Mr. Atkins), who helped me with the Report stage; and, lo and behold, my distinguished, hon. and learned Friend the Member for Grantham (Mr. Hogg), who assists me today. That truly is an honour three times expressed. The Bill is a modest measure, but it promises worthwhile improvements to the law. As it had a formal Second Reading, I shall briefly set out what it seeks to do. It would bring about a reformed national code—although it excludes Northern Ireland—for temporary regulations dealing with notices and orders. When the Bill was first published, my colleagues were surprised that we did not have a national uniform code, and that there were different rules for London and for the rest of the country. The Bill seeks to rationalise some of the requirements for longer-term works, and it places upon local authorities—which were widely consulted—the duty to have proper statutory regard to alternatives when orders are laid down. The Bill deals with two forms of temporary notice: a short notice for five days, which is not renewable and is most helpful to local authorities, and a limit of 21 days for all other notices. The 21-day notice can be renewed in certain circumstances. The main aim of the Bill is to rationalise orders. Until now, they have been applicable for three months and have been renewable almost ad lib. In my constituency, in the past six years there have been two major works, and at present there is one project which is estimated to last for some three years. Under the old rules the orders for that project would have had to be renewed every three months. That is the kind of bureaucracy that serves no one. The 18-months rule will almost certainly simplify and reduce much of the bureaucracy. Colleagues may be interested to know that, in an average year, some 15,000 temporary orders are issued. The Bill seeks to tidy up an extraordinary anomaly which means that, although a person who commits a traffic offence may have his licence endorsed or be disqualified from driving, if the offence was committed in a coned-off area on the motorway or somewhere where a temporary order applied, those constraints of the law would not apply. The road user stands to gain from the presence of a more adaptable and comprehensive measure to regulate traffic where necessary. I believe that the relaxation of the period for temporary orders will be widely welcomed, as it is a useful step towards deregulation. However, some hon. Members have expressed anxieties. We had a truncated Report stage last week. On procedural grounds rather than because of a Division, the Bill failed to complete its Report stage but, happily, it has returned to the House this morning. I am grateful to see the hon. Member for Lewisham, Deptford (Ms. Ruddock) on the Opposition Front Bench, as she was disappointed that consideration of the Bill was not completed last Friday, and no doubt she is happy to be present today to greet it with acclamation. Would that other private Members' Bills which run into procedural problems were given an opportunity to get on with the job seven days later. Anxieties about the Bill have been brought to my attention by ramblers and horse riders. It was interesting to listen to the debate on the Rights of Way Bill and to hear my hon. Friend the Member for Gainsborough and Horncastle (Mr. Leigh), legally define footpaths and bridle paths—if I heard him correctly. If that is so, the anxieties of the Ramblers Association and the British Horse Society are valid. We could have dealt with the matter last week; we obtained the assurances on Thursday last. Since last Friday, we have obtained them in writing. Sadly, they cannot be written into the record, but I am sure that the other place will be satisfied with the assurances that have been given. I have discussed the matter with the Department of Transport and with the Minister for Roads and Traffic. He wrote, at my suggestion, to the Ramblers Association expressing his understanding of its concerns. In his letter of 30 April, he said that he was content that my Bill should be amended
He suggested that the limit on those highways should be six months, whereas my Bill says that the period should be 18 months. The Minister told the Ramblers Association—I understand that the same assurance has been given to the British Horse Society—that when the Bill is enacted"so that temporary orders affecting traffic other than motor vehicles on a footpath, bridleway, cycle track or byway would have a more limited duration."
The guidelines"appropriate guidance might be issued by the Department to highway authorities about the exercise of their powers".
The Ramblers Association acknowledged the Minister's letter the following day and confirmed that it was prepared to accept the proposal that temporary orders should last for six months. We granted that concession to the hon. Member for Denton and Reddish (Mr. Bennett) before the untimely break in the proceedings last week. The Ramblers Association and the British Horse Society are now satisfied. It is a modest Bill. I said last week that, if one is not among the first seven successful in the ballot for private Members' Bills, the last thing that one wants to do is promote a Bill that is so contentious that it will never be given a Second Reading. If, by some extraordinary mischance, it were given a Second Reading, it would undoubtedly be talked out and never pass Committee. I am delighted to have played a small part in the legislative process. I thank my hon. Friends who have supported me. I hope that the House will give the Bill its Third Reading and pass it. Nevertheless, before it is given a Third Reading, I hope that the Minister will say something about it."would aim to emphasise the statutory duties which already oblige them to protect rights of way and minimise obstruction."
My hon. Friend the Member for Nottingham, South (Mr. Brandon-Bravo) is to be congratulated on bringing his Bill successfully to this point. I know that he had a few procedural difficulties last Friday, but he has obviously overcome them with great skill. His elegant and persuasive description of the Bill's contents taught us a great deal.The Bill is a welcome measure that introduces a uniform code of powers for all authorities in Great Britain in connection with temporary traffic restrictions.
Will my hon. and learned Friend the Minister give way?
If I must.
I know that my hon. and learned Friend is absolutely packed with material, but I wonder whether he is aware of the objections of the British Horse Society to the former proposals in the Bill to lump together bridleways and highways, and the fact that my hon. Friend the Member for Nottingham, South (Mr. Brandon-Bravo) has agreed to separate them. Will the Government be happy with that, as the horse world certainly is?
The Government are extremely happy with that. I have no doubt that the reason why the Government were prepared to welcome the modest change described by my hon. Friend owed a substantial amount to the advocacy of my hon. Friend the Member for Ealing, North (Mr. Greenway). I thought for one nasty moment, that he was going to ask me what the content of clause I was. That is why I was so churlish. But on the contrary, he had only help in his mind and if he wants to intervene again, I am sure that I can give way. I had better return to my script, because I certainly cannot operate without it on such a Bill.The Bill will enhance the ability of local authorities to respond speedily and effectively. Among its main concerns are the protection of public safety and the management of traffic for temporary periods to avoid damage or congestion. Temporary restrictions are only one end of the traffic management scale—at the other end are traffic jams. Authorities are continually initiating new measures to help make the best use of existing road space and to try to resolve conflicts between competing demands of motorists and pedestrians—private and public transport, passenger and goods traffic. It is a balancing act, but the authorities have a great deal of expertise. We encourage them to take local needs more carefully into account. Parliament has laid down statutory requirements to be met. There are prescribed procedures to follow, but we must also give them freedom and flexibility to act in response to local conditions. The Bill will help to do that. It will leave local authorities better placed to cope with the needs and demands of traffic. I welcome the Bill, and hope that it will make a swift passage through its remaining stages and on to the statute book. Clearly, it would not be right for me to conclude my brief contribution without once again thanking my hon. Friend the Member for Nottingham, South for the persuasive and eloquent way in which he has carried through the Bill, and for the thought and learning that he has put into it. I commend it to the House.
Question put and agreed to.
Bill accordingly read the Third time, and passed.
Indecent Displays Bill
Order for Second Reading read.
On a point of order, Mr. Deputy Speaker. We are near the end of the day, but there has been no sign of the Secretary of State for the Environment. Have you any news about whether he will make a statement on yesterday's elections——
Order. I have received no such request. The hon. Gentleman knows that the presence of a Minister is not a matter for me.
I beg to move, That the Bill be now read a Second time.This is a modest measure, with a modest amount of time for me to explain it to the House.
It being half-past Two o'clock, the debate stood adjourned.
Debate to be resumed upon Friday next.
Private Members' Bills
Elimination Of Poverty In Retirement Bill
I beg to move——
I did not hear "Object".
Do I hear "Object" or not?
If hon. Members are objecting, perhaps they will do so sufficiently loudly for the Chair and the House to be aware of it. Objection taken. Second Reading what day?
May I be clear? Did the hon. Member for Dorset, North (Mr. Baker) object? I heard no objection when I rose to move the Bill.
I clearly heard "Object". The House will have heard the objection that was made.
Will you confirm that the hon. Member for Dorset, North——
It is not for the Chair to identify hon. Members——
Order. The hon. Gentleman must not be on his feet when I am. He has raised this point on previous occasions and has received the same guidance from the Chair. It is not for the Chair to identify the individual or individuals who register objections. We are in exactly the same position as when the Chair collects the voices on putting the question on any matter. Second Reading what day?
Second Reading deferred till Friday 6 July.
On a point of order, Mr. Deputy Speaker. May I seek your guidance? As I am sure you are aware, the Bill has been before the House many times. It has consistently been frustrated by a conspiracy between the Whips Office and the Trappist tendency of the lower echelons of the Whips Office. How can the Bill be debated so that those who object to it by muttering between their teeth can say why the elimination of poverty among pensioners is not an important matter? I look to you to find some way of debating the Bill in the House.
That is not my responsibility. Bills are dealt with according to the Standing Orders and procedures of the House. The hon. Gentleman's Bill is being dealt with in that manner, as well he knows.
Fuel And Energy Provision Bill
Order for Second Reading read.
Second Reading deferred till Friday 6 July.
Children And Young Persons (Protection From Tobacco) Bill
Order for Second Reading read.
Poll Tax (Abolition) Bill
Order for Second Reading read.
Second Reading deferred till Friday 6 July.
Interdicts And Injunctions (Amendment) Bill
Order for Second Reading read.
Toxic And Hazardous Substances (Miscellaneous Provisions) (No 2) Bill
Order for Second Reading read.
Poll Tax (Restoration Of Individual Privacy) Bill
Order for Second Reading read.
Second Reading deferred till Friday next.
Rape In Marriage (Offence) Bill
Order for Second Reading read.
Second Reading deferred till Friday next.
Hare Coursing (Abolition) Bill
Order for Second Reading read.
Second Reading deferred till Friday next.
Political Parties (Income And Expenditure) Bill
Order for Second Reading read.
National Health Service Hospitals (Opting Out) Bill
Order for Second Reading read.
With the permission of my hon. Friend the Member for Don Valley (Mr. Redmond), I beg to move.
Greyhound Betting Levy Bill
Order read for resuming adjourned debate on Second Reading [16 February].
Football Spectators Bill
Order for Second Reading read.
British Racing Commission Bill
Order for Second Reading read.
Local Authority Playing Fields Bill
Order for Second Reading read.
Second Reading deferred till Friday 6 July.
Marriage (Registration Of Buildings) Bill
Order for Second Reading read.
With the consent of my hon. Friend the Member for Buckingham (Mr. Walden), I beg to move, That the Bill be now read a Second time.
Question put and agreed to.
Bill read a Second time and committed to a Standing Committee, pursuant to Standing Order No. 61 (Committal of Bills).
On a point of order, Mr. Deputy Speaker. Can we expect a statement on yesterday's local elections? In Ealing, we have had a change of control to Conservative from Labour——
Order. I thought that I had made it clear to the hon. Member that I am not prepared to tolerate what seems to be close to an abuse of the House.
Herstmonceux Castle (Sale)
Motion made, and Question proposed, That this House do now adjourn.— [Mr. Nicholas Baker.]
During 1986, I raised in the House several times the subject of Herstmonceux castle—in questions to my right hon. Friends the Prime Minister and the Secretary of State for Education and Science, in a debate on tourism and in an Adjournment debate on 19 December that year. I did so because I disagreed, as did many of my constituents as well as many distinguished scientists, with the Government's decision to allow the Science and Engineering Research Council to move the Royal Greenwich Observatory from Herstmonceux, as had been proposed in the Kingman report, and then to sell Herstmonceux castle.The main objections from astronomers to the proposed move were that there had not been sufficient consultation before the decision and that, in any case, the scientific justification was thin, to say the least. As Dr. Charles, the university lecturer in astronomy at Oxford, put it:
Others argued that there was no apparent financial justification for the move and some people went so far as to say that the sale of the castle looked suspiciously like asset stripping. Such scepticism was no doubt encouraged by the remarks by Professor Mitchell and Dr. Catterall, chairman and secretary respectively of the SERC at the time, who repeatedly maintained that Treasury approval would be forthcoming only if the move could be demonstrated to be self-financing. In other words, the castle would be sold to meet the budgeted cost of the move and of new buildings at Cambridge, which had been chosen as the RGO's new headquarters. That was the only financial target in the SERC's mind and its sole priority was to get just enough money from the sale of the castle as quickly as it could and without any strings attached to the sale that might get in the way of a research transaction. At no stage did the SERC give the impression that it would be worth while making a special effort to find a buyer who would undertake to do creative things with the castle and grounds in the public interest. Such considerations were of central importance to local residents and to others, such as Professor Gregory from Bristol, who wanted to convert the equatorial group of telescopes at the eastern edge of the park into a centre in which visiting schoolchildren could experience what he called "hands-on science", but apparently they were of no consequence to the SERC. It merely needed money for the move that it had planned and it was playing by Treasury rules. Other considerations were none of its concern, it seemed. My suggestion to Professor Mitchell at the time—that, instead of moving the RGO, the SERC should endeavour to develop an international centre of scientific and technological excellence around the RGO at the castle, which would generate revenue from research work and seminars for clients throughout the world—was met with blank incomprehension. The idea that the RGO and the castle should be thought of as anything but a cost centre and that the SERC might do well to take an entrepreneurial view of the assets under its control, to earn a little extra money to help fund its research efforts, seemed foreign to Professor Mitchell. That is exactly what it was. I have no doubt that the American, Japanese or German counterparts of the SERC would have jumped at the opportunity of taking prize assets, such as the RGO and Herstmonceux castle, and developing around them a centre of international renown—instead of the unimaginative retrenchment and withdrawal to Cambridge, where the RGO's identity would be submerged and where the university astronomy departments might well feel inhibited about participating in shared projects. In spite of the objections, the SERC went ahead with its plans and the castle was duly sold in 1988. The consideration was £8·1 million on a deferred payment basis, although the SERC itself did not reveal the figure and the public was led to believe from newspaper reports that £12 million had been paid. The purchasers, James Developments, made no attempt to contradict that. Subsequently, the National Audit Office examined the terms and conditions of the sale and the manner in which the transaction was carried out. Last month the Comptroller and Auditor General published a report of his findings. He concluded that the SERC did not fully investigate bids higher than the one that was accepted, but which could have resulted in a purchase consideration of £14 million instead of £8·1 million. The report by the Comptroller and Auditor General makes several observations from which lessons about the disposal of state-owned assets should be learnt. It says that, although the castle was first placed on the market in May 1988, a Treasury guidance issued on 29 April 1988, designed to ensure that the best possible prices were obtained on the sale of land by public bodies, did not influence the marketing strategy of the SERC. Although the Treasury knew of the impending sale and must have had a draft guidance in hand for months previously, the final version of the guidance issued in April did not reach the Department of Education and Science until 3 June, and it had no effect on the behaviour of the SERC when it dealt with tender offers for the castle in August. The report also alludes to the vigorous publicity campaign the SERC began in May with the estate agents Knight, Frank and Rutley. Yet at least one bidder, Mr. Nesser from Los Angeles, whose offer of £9·25 million was rejected on the curious ground that the SERC did not have his financial references and was unwilling to delay matters for a day or two while they were obtained from the United Sates, claimed that he had heard of the sale by chance and that the marketing effort internationally had not impressed him in the slightest. The report goes on to say that the best price guidance provides that land with development potential should normally be sold with the benefit of planning permission. Even if the SERC failed to come across the Treasury guidance, it was certainly given precisely the same advice by Wealden district council. The planning officer and his team at Wealden were in no doubt that it would make sense for the SERC to offer the castle with planning permission, and they said so to the SERC. However, Professor Mitchell was in too much of a hurry to get the money that the Treasury said he could have to wait until planning consent had been agreed. The unfortunate result has been that James Developments has spent the past 18 months putting forward outline development schemes that Wealden rightly considers unacceptable in many respects and which English Heritage, in its capacity as interested observer and adviser, also wished to see rejected. The report also concludes that a clawback provision in the event of future development gain at the property should have been part of the sale contract, but the SERC overlooked that, too. Most damning of all is the conclusion in the report that, besides Mr. Nesser's bid of £9·25 million, a telephoned offer of £10 million from a Mr. Abrams, which was shortly raised to £14 million, was also rejected. The National Audit Office says in its report that the higher bids should have been fully investigated and that financial references should have been sought before the £8·1 million bid from James Developments was accepted. By its failure to pursue the other offers, the SERC settled for a figure that could have been exceeded by almost 75 per cent. Just as in the sales of Royal Ordnance and of the Rover Group, the taxpayer is entitled to conclude that public sector assets were sold in too much of a rush and too cheaply. It is even more depressing that the SERC, whose scientist members are fond of bemoaning publicly how much more money they need from the Government to finance their research, should have taken such a blinkered view of common-sense commercial considerations in a property sale. It is little wonder that those scientists, who are mainly university academics, should feel so uncomfortable about the long overdue responsibility now placed on British universities by the Government—and rightly so—that they should help to pay their own way. Sadder still is the fact that James Developments, a partnership whose financial resources and track record in property development have still to be revealed by the SERC, or by anybody else, has thus far achieved nothing with the castle, which remains firmly closed to the public. Any further changes in the way in which state-owned property is sold will merely close the stable door after the horse has bolted. Nevertheless, I urge Ministers, who are fond of talking about market forces, to take sound commercial advice when they venture into the marketplace on the taxpayer's behalf. If they do not, they are likely to find that the taxpayer feels justifiably aggrieved about being short changed."The SERC is seen spending an enormous amount of money on a move that nobody has called for and in order to solve problems they can neither specify or quantify."
I have listened with close interest to my hon. Friend the Member for Bexhill and Battle (Mr. Wardle). He has raised a subject that is, I know, of interest to a number of hon. Members, and I welcome the opportunity to try to answer some of the points that he has made.As my hon. Friend has reminded us, the Science and Engineering Research Council decided in 1986 to move the Royal Greenwich Observatory from Herstmonceux to Cambridge, where the council believed that it could better serve the scientific community for which it was designed. My hon. Friend said that he disagreed with that thesis, but I have no doubt that care and thought went into the council's decision. I know that, at the time, my hon. Friend regretted the removal of this historic observatory from his constituency, and argued vigorously against it; and I understand why, as a centre of scientific excellence, housed in a particularly fine building, is naturally the object of considerable local pride. The council's decision, however, was made not only on scientific grounds but on grounds of efficiency and cost, and it should not be a point at issue in today's debate. Let me first explain the respective roles of the Government and the SERC. The council, as an independent body under a royal charter and as owner of the property, had primary responsibility for the sale arrangements, but my Department—as the main supplier of funds to the council—was involved in certain aspects of the sale, in particular the use of the proceeds. The operation of the sale was handled by the council. Treasury guidance was taken into account, but, having reviewed its sale strategy in the light of that guidance, the council concluded that it did not need to make any changes. My hon. Friend referred to the report by the National Audit Office. As is the usual practice, the Public Accounts Committee, having studied the report, will wish to decide whether to take further evidence. However, although I do not want to pre-empt the details of any future discussion, I should like to make one or two comments—particularly in view of some of the stories that have appeared in the press over the past couple of weeks. Contrary to the impression given by the press, the report comments very favourably on many aspects of the sale. The National Audit Office was generally satisfied with the council's arrangements: it mentioned specifically the use of a reputable firm of agents, the vigorous marketing of the property, the timely point at which the sale was conducted, the provision for new accommodation in Cambridge and the monitoring and control of costs. As my hon. Friend observed, the report went on to make two specific points about ways in which the council might have acted differently. When we look at the facts of the case, however, the picture that emerges is rather different from that presented by the more excitable newspapers. The sale was conducted on the basis of an invitation to potential buyers who had shown an interest in the property. The research council's agents set a specified date by which all bids were to be submitted; to ensure fair treatment and the best competitive price, they were to be in the form of "best and final offers", and to be accompanied by financial references. A buyer, James Developments was selected on that basis. The council accepted the company's bid of £8·1 million, and its agents set in hand the arrangements for finalising the deal. My hon. Friend mentioned other, unsuccessful bidders, one of whom said that he was prepared to increase his earlier offer. He said, first, that he was prepared to increase his earlier bid to £10 million; then, that, in addition to his earlier bid, he would be prepared to make a special one-off payment of £7 million to the European Space Agency on behalf of the United Kingdom if that would secure the sale. Finally, he said that, instead of doing that, he would be prepared to increase his earlier bid to £14 million. At no point, however, did he provide the financial references to support any of his offers—including the original offer—as required under the terms of the original invitation to bid. It is important to make that clear. I rehearse those facts now because they are relevant to the suggestion that the SERC could have obtained a higher price than it did and because they are a matter of public record, to be found in the National Audit Office report. The National Audit Office report suggests that the SERC should have pursued the offers further before exchanging contracts with James Developments. The research council decided against doing so for two reasons. First, it was not prepared to be a party to gazumping. Secondly—I have to present the full picture—on the advice of its professional and experienced agent, it thought it doubtful that the second bidder would be able to complete at the prices that were being quoted.
If the SERC chose not to pursue references, how can the judgment have been made that the bidder was unable to meet the consideration of £14 million?
As I understand it, references were sought but no information was forthcoming. That is why the professional agents gave the considered judgment that it was unlikely that finance would be forthcoming from the bidder.The council's judgment is also now a matter of public record in the National Audit Office report. I will not go beyond that, except to say that, if the research council had changed the ground rules at that point and pursued an offer about whose viability it had serious doubts, other bidders might well have dropped out, and the outcome could have proved far less satisfactory to the taxpayer than was achieved. My hon. Friend referred to a second point in the National Audit Office report concerning planning permission. It was always obvious that the purchaser would need to develop the property for some new use, and my hon. Friend has explained the new uses that he thought would be suitable. Before the property was placed on the market, the research council and its agents very responsibly had detailed discussions with the local planning authorities—Wealden district council and East Sussex county council. Jointly with those authorities, the research council and its agents sponsored a detailed report by the English tourist board on possible options for the use of the site. The research council's agent drew up a planning brief on the basis of that report and the local structure plan. The brief was then approved by Wealden district council and informed the decision made on the sale and the agents' judgment of the sale price likely to be attainable. All that information was available to prospective purchasers. Once bids had been received, the council accepted the agents' professional advice that the price offered by the successful bidder was a good and fair one in relation to the development options that were likely to be allowed by the planning authorities. The National Audit Office report suggests that the research council should have gone further, that it should have tried to negotiate some clawback arrangement with the purchaser. Under such an arrangement, the purchaser would have agreed to reimburse the vendor all or part of any increase in value attributable to the granting of planning permission after the sale terms had been agreed. Decisions on such an agreement have to be a matter of judgment in each case. The danger of such an arrangement is that, as a quid pro quo for agreeing to it, the purchase price might be reduced below the likely benefit that might arise later. Again, on the basis of professional advice, the research council took the view that a clawback provision would not be to its advantage. My hon. Friend will know that development of the site is strictly limited by Wealden district council's local structure plan, and also of course by the castle's status as a scheduled ancient monument. The research council considered that the sale price agreed was already a fair one in relation to the sorts of planning consents that were likely. Of course, a different view could be taken, as the NAO report suggests. In this case, the research council was on the spot and had all the facts before it and the benefit of experienced professional advice. While it may not be strictly relevant to the NAO report, I would just note that the purchaser has, I understand, still not obtained the sort of planning consent that he was hoping for, some 18 months after the sale was agreed. You may feel, Mr. Deputy Speaker, that that rather bears out the research council's judgment on the matter, but that is a matter of opinion. I know that the wider question of planning consent is of great concern to my hon. Friend, and that he has taken a close personal interest in the future use of Herstmonceux. I have explained the actions that the SERC very responsibly took with the planning authorities before the sale was completed. Now that the sale has taken place, from here on this has to be a matter for the purchaser and the local planning authorities. I know that discussions are continuing and that my hon. Friend will ensure that the concerns of his constituents are effectively represented. While I have listened with great care to my hon. Friend, it is fair that my account of events shows that the research council's acts have been well thought out in the light of the facts as they were known at the time. We shall obviously continue to study carefully what the NAO has said in its report, but there is significant ground for arguing, as the research council has argued, that the taxpayers secured a good price for the property, that they probably could not have done better and might certainly have done considerably worse. The purchase price was shown in the appropriation accounts in the usual way, as my hon. Friend pointed out. I am aware that I may not have completely and entirely satisfied my hon. Friend, but I hope that I have given an adequate explanation of the circumstances that surrounded the sale of Herstmonceux castle.
Question put and agreed to.
Adjourned accordingly at three minutes to Three o'clock till Tuesday 8 May, pursuant to Resolution of the House [27 March].