My Lords, this has been—since we first got sight of the Bill and right the way through—one of the most difficult issues to try to find balance and a solution. I know that people have ridiculed my attempt to try and get people to speak less in earlier amendments. Actually, in part it was so we could have a longer debate here—so the noble Lord, Lord Moylan, should not be so cross with me, and I hope that we can continue to be friends, as we are outside the Chamber, on all points, not just this one.
Talk is not getting us to a solution on this, unfortunately. I say to the Minister: I wonder whether there is a case here for pausing a little bit longer on this, because I still do not think we have got to the bottom of where the balance lies. I want to explain why I say that, because, in a way, I follow the noble Baroness, Lady Stowell, in worrying that there are some deeper questions here that we have not quite got the answers to. Nothing in the current amendments gets us to quite the right place.
I started by thinking that, if only because Ofcom was being seen to be placed in a position of both being a part of the regulatory process, but also having the rights to interpose itself into where this issue about encryption came up, Ofcom needed the safety of an external judicial review along the lines of the current RIPA system. That has led us to my Amendments 256, 257 and 259, which try to distil that sensibility into a workable frame for the Bill and these issues. I will not push it to a vote. It is there because I wanted to have in the discussion a proper look at what the RIPA proposal would look like in practice.
6.45 pm
In the intervening period between Committee and today, the Government have also laid their amendments, which the noble Lord, Lord Parkinson, has introduced very well. I like a lot of them; they go a long way down the track to where we want to be on this. I particularly like the protection for journalistic content, which I think was lacking before. The way of introducing the skilled person into it, and the obtaining of an externally sourced report—even it is internally commissioned—does bring in an outside voice which will be helpful. The addition of privacy to that makes sure that the issues addressed will be the ones that need to be bottomed out before any decisions are taken.
It is helpful to state—again, repeated, and implicit in the amendments, but it is nice to see it again—that this is not about Ofcom as the regulator looking at people’s messages. It is clearly about making sure that there is the capacity to investigate criminality where it is clearly suspected and where evidence exists for that, and that the companies themselves have the responsibility
for taking the action as a result. That is a good place to be, and I think it is right. The difficulty is that I do not think that that sensibility quite takes the trick about what society as a whole should expect from the regulator in relation to this particular activity. It leaves open the question of how much external supervision there would really be.
If we accept that it is not about Ofcom reading private messages or general monitoring—which I note the Minister has confirmed today; he was a bit reluctant to do so in Committee, but I am grateful to him for repeating it today—where is it in the statute? That is a good question: perhaps we could have an answer to it, because I do not think it does appear. It is important to reassure people that there is nothing in this set of proposals, and nothing in the Bill, that requires Ofcom to generally survey the material which is passing through the system. I still think people are concerned that this is about breaking end-to-end encryption, and that this is an attack on privacy which would be a very bad step. If that remains the situation and the Government have failed to convince, that therefore reinforces my suggestion to the Minister that at the end of this debate he might feel it necessary to spend a little more time and discussion trying to get us to where we want to go.
I am very grateful to those who have suggested that our amendments are the right way to go. As I have said, I will not be pushing them—the reasons being that I think they go a little too far, but a little more of that would not be a bad thing. The Government are almost there with that, but I think a bit more time, effort and concern about some of the suggestions would probably get us to a better place than we are at the moment. I particularly think that about those from the noble Baroness, Lady Harding, about taking the lessons from what has happened in other places and trying to systematise that so it is clear that there are external persons and we know who they are, what their backgrounds are and what their roles will be. I look forward to hearing from the Minister when he comes to respond, but, just for confirmation, I do not think this is the appropriate place to vote, and should a vote be called, we will be abstaining.