Police and Justice Bill

I shall also speak to Amendment No. 178ZA in this group. To be honest, Amendment No. 178, deleting the paragraph altogether, may be the best course of action, because the provision causes serious problems. I have had long conversations about this with several people from companies that will be directly affected by it. I thought that the Home Office might not be willing to remove the paragraph, so I tabled my slightly less extreme amendment; nevertheless, it may have its own problems, and it may be wiser to delete the paragraph altogether. This small but important amendment will have a serious impact on quite a lot of companies that currently write software that is perfectly legal and is extremely useful because it allows computers to be managed remotely. To give you a feel of the technology, the Parliamentary ICT helpdesk uses such software. If you have a problem, you can allow one of the helpdesk people to take control of your computer or to watch what you are doing on it and give you helpful advice. That would be a typical application where someone is remotely accessing your computer using the same tools as hackers would use. People developing websites will have software that can download and install itself to monitor the mouse’s movements around the screen to see how people use the websites, where they hover and what they click on. These things, which sit in the background, are used by academics and developers to make websites more usable. We all know of websites—possibly even the parliamentary website—which could do with a little research in this direction. Such tools will almost certainly be made illegal by the proposal because they are exactly the sort of tools that hackers can use. Even if such tools were not principally designed for a hacker in the first place, hackers could easily modify bits of them, or use them, and it is extremely likely that they will do so; it is highly unlikely that they would not do so. It is very likely that hackers will use these things. It is highly improbable that they will not. Unless my definition of ““likely”” is very different from that of the lawyers at the Home Office, I would prefer the dictionary definitions that I find to the ones that they may be trying to use. The real trouble is how the courts will interpretthe word ““likely””. In our courts, some very clever barristers will use very clever verbal gymnastics to twist the meaning of the word ““likely”” to suit their case. The case may be brought not against a large company that can afford very expensive barristers to defend it but against a small, one-man band, who may have written some software. For some reason someone who may be trying to gain commercial advantage reports him, or has a contact that can do something, and he may be unable to defend himself against a clever barrister in court. I do not know whether the word ““likely”” implies that more people will use such tools for legal purposes than for illegal purposes such as hacking. How dothe courts establish that? As a result, after some discussion with people, I suggest the word ““primarily””, which would be better. I am open to other ideas, such as that of our assiduous and articulate assistant to the Convenor of the Cross Benches, Julian Dee, who suggests ““largely intended for””. A journalist on the train with whom I was discussing it this morning suggested ““principally””. All these words have much to recommend them instead of the word ““likely””. The important thing is that they should convey the intention of Parliament better than the word ““likely”” in the mind of the lawyers. I support this approach because of the possibility that this might persuade the lawyers in the Minister’s department to change their minds, but I do not know whether this is likely or unlikely. It has been suggested to me in discussions with the people behind the word ““likely””—the Home Office—that the courts can use Pepper v Hart to look at the Minister’s response to these amendments to find out the intention behind Parliament’s inclusion of this word. The trouble is that the courts have to decide that it is ambiguous and I am not sure that it is at all ambiguous. I believe that it is highly likely that any of these tools will be used by hackers unambiguously. Another approach would be to use a very ambiguous word. I will leave it to noble Lords’ imagination how you might make this phrase so ambiguous that the courts had to read the Minister’s statements. That would be an alternative, but is that likely to happen? Anyway, it is a bad way to make law. I turn to a matter that I feel strongly about. In Roman law, I believe, one makes laws slightly general and the courts and the state decide how the law is to be interpreted and fill in the blanks later. But under common law—we are a common law country—basically you are allowed to do anything that is not expressly forbidden. Therefore, we define much more closely what is forbidden because it is important to make clear what companies are and are not permitted to do and not leave it to the courts to interpret later. I have also spoken to someone who has close ties with the Commission and they do not like this at all either. Should we pass the measure in this form, there may be moves from Europe later in the yearto get it changed. International companies are sufficiently worried about this for lobbying to take place. With that, I look forward to hearing the Minister’s reply.