Wednesday 24 January 2001

Members present:
Mr Poots (Chairperson)
Mr Gibson (Deputy Chairperson)
Mr Beggs (Jnr)
Mrs Bell
Dr Birnie
Mrs Courtney
Ms Lewsley
Mr McMenamin
Mr Shannon

Prof D Vincent )
Mr R Wright ) Central Information
Mr J Shanks ) Technology Unit (NI)

1.The Chairperson: I should like to welcome Prof Vincent, Mr Wright and Mr Shanks from the office of the First Minister and the Deputy First Minister to our meeting. Initially I shall ask Prof Vincent if he would like to give a brief overview of the Bill, setting out its general purpose and main vision. Members may then ask general questions. Any detailed questions in relation to the specific clauses and schedules should await the detailed scrutiny of those parts of the Bill.

2. Prof Vincent: Good afternoon, ladies and gentlemen. It is nice to be back. I welcomed the opportunity to listen to Mr Hugh Widdis give the background, and found it very useful to hear his input.

3. I shall pick up on certain things Mr Widdis said. First, the target of 100% of services being available electronically by 2005 in Northern Ireland has not yet been agreed. We shall be putting a paper to the Executive Committee. In fact, my colleague Mr Wright is working on that paper now.

4. When the Departments start looking at the services they are to deliver electronically, that will drive the subsidiary legislation they must bring forward, such as licensing cars, applying for benefits or making council information available electronically. That will be the driver for Departments, either from the bottom up, based on services required, or from the top down, when Ministers and officials determine what needs to be done.

5. My second point concerns the competitive position of Northern Ireland. It is vitally important that we do not take our eye off the ball or lose our position, for other administrations are moving forward in the area. The legislation we have before us matches what is going on in other parts of the United Kingdom and the Republic of Ireland - I read last night that Australia prided itself on being first in this area in 1999, so we are slightly behind.

6. Two key words came to mind while I listened, the first being choice. It is not a matter of forcing people to use electronic services. It is about giving people the choice. Local councillors, for example, can decide whether they still want information on paper or prefer it electronically. The other key word was trust. How do we ensure that information transmitted electronically does not get hijacked or corrupted en route? This is what the enabling legislation is about.

7. It is remiss of me not to introduce my colleagues, Mr Wright and Mr Shanks. They are the two people who have been in the engine room delivering this piece of legislation for the Assembly.

8. Those are the key drivers to which Mr Widdis was referring, but there are others such as the European dimension. The United Kingdom Electronic Commun- ications Act 2000 was brought forward because of the two European directives already in existence with which member states must comply in one case by January 2002. They are also the key drivers for us to bring our legislation into line. The first one is the EU Directive on Electronic Signatures, which establishes the common legal framework, and the second is the EU Directive on Electronic Commerce. Member states have to comply with it by January 2002.

9. I should like to move on from our enabling legislation to the legislation which will follow, for example, from the Department of Enterprise, Trade and Investment. This is what will start to drive the subsequent legislation coming before the Assembly and other Committees.

10. That is in essence the genesis of the United Kingdom Electronic Communications Act 2000. It concerns the legal standing of an electronic signature, making it equivalent to a signature on paper. When we sign cheques or application forms, that gives the imprimatur to a document that we have legally signed it. This legislation gives the same standing to an electronic signature as a conventional signature.

11. We are aware that the powers of the United Kingdom Act did not apply to Northern Ireland because the Assembly was either in suspension or did not exist when it was going through the major Whitehall processes. This Bill is intended to remedy that position, bringing us into line with the rest of the United Kingdom. With those brief introductory remarks, I should like to hand over to Ray Wright, who will take us through the Bill.

12. The Chairperson: Were you going to take us through the Bill clause by clause?

13. Mr Wright: Yes, if that is your requirement.

14. The Chairperson: Do you first wish to give an overview, or will you take questions from us as you go through the Bill?

15. Mr Wright: I shall take questions as I go through it, if that suits you.

16. The Chairperson: Do Members first have any general questions they wish to ask, as opposed to questions relating to individual clauses?

17. Mr Gibson: You mentioned meeting deadlines. Is there anything in this Bill, in its generality, that would in any way inhibit a Government Department providing the alternative choice? Is it totally enabling in its nature, without any inhibitors which might prevent the Department of Health, Social Services and Public Safety, for example, getting itself geared up electronically?

18. Prof Vincent: I believe there are two issues, the first being that this is enabling legislation. Without this Bill, the Departments cannot move forward. It gives the power to Ministers to bring forward or change legislation.

19. How Ministers actually do that is their decision. They can either look at individual pieces of legislation and individual services, or they may choose encompassing legislation giving equivalence to an electronic signature anywhere a signature is mentioned, for example, in the health sector. That would be a choice for Ministers.

20.Mr Shannon: Prof Vincent, have you set your targets yet? If so, how do you see yourselves achieving them? Do you envisage their being achieved within the timescale? Are you setting the timescale, or will someone else do it for you?

21. Prof Vincent: What we have said and shall be saying in the paper to the Executive is that the electronic provision of Government services - we should be honest that we are dealing with such - should be delivered no less speedily than in any other part of the United Kingdom. England, Scotland and Wales have signed up to providing 25% of services electronically by 2002 and 100% by 2005. I see no difficulty in achieving the 25% figure by 2002.⁽⁾

22. However, while the Prime Minister said 100% of all services by 2005, we - the royal "we" - have taken the view that this second figure might not be realistic. Let us focus our minds on the services that our customers regard as being key. As you might expect, there is an element of cost benefit. We could spend a fortune on delivering a service electronically only for no one to use it. We have distinguished what we regard as very high-volume services, the first being vehicle registration and the second the MOT. We know what the top services are, for we have done some measurement.

23. Along with high-volume services come those with a high value. What are those services which we in Government provide to citizens? What services do the citizens regard as being of very high value in the context of electronic delivery? That decision is not for us but for the Departments who provide the services. We have mentioned local government once or twice. One of the things I should like to see is the extension of the targets to it, for it also delivers some services on behalf of the centre.

24. Mr Shannon: How will the targets you are setting compare with the targets set on the United Kingdom mainland, where they may be looking for a much higher figure? I agree you have been realistic in your interpretation and I believe we must be so. However, if we tend to lag behind the United Kingdom mainland and perhaps also the Irish Republic, where will they be in relation to the services?

25. Prof Vincent: In fairness, I do not think we lag at all. Our citizens do not care if the figure is 90%, 89% or 99%. Provided we deliver electronically the services that we, as public servants, believe that they want, we shall have met the targets. Targets are a very blunt instrument. If you recall, the last time I was here I talked of the "silos", saying that targets could reinforce what we currently do. That is not what we wish to do. We wish to pump the mind of the customer for the Government and say "Do you really want a joined-up service when you get your MOT? Do you want your MOT certificate from the Driver and Vehicle Testing Agency without having to send a piece of paper to the Driver and Vehicle Licensing Agency?" Let us think from the customer's perspective and deliver the real services. I believe we must deliver 100% of the services our customers want, which is entirely different -

26. Mr Shannon: That is the whole issue: that services are customer-led and customer-centred.

27. Dr Birnie: You have said several times that the power is "enabling". That means that Departments are not obliged to act. Perhaps this is an unfair question or one which you cannot answer. Do you foresee any difficulties or resistance at departmental level? Is it part of your remit to be a sort of champion for this, to push, or shove or encourage? If so, how?

28. Prof Vincent: You are absolutely right to say that the legislation is enabling. It is enabling. When this Bill is passed, it will enable the other departmental Ministers to bring forward legislation. I find that, when I talk to Departments, I am pushing at open doors, for the Departments actually want this. The Department of Enterprise, Trade and Investment wants it. The Department of Agriculture and Rural Development is waiting for it to facilitate some of its work - we are doing some work in Greenmount Agricultural College - so I do not believe we shall have to do much leaning on Departments to get this brought forward. Ray Wright will talk later about some work in which he is involved.

29. Mrs E Bell: That was my question, for I am very keen to look as closely as possible at joined-up government. I should obviously look to your Department, as Esmond Birnie said, to encourage it and lobby for it. This Bill will do that.

30. As I look through the Bill, it seems essential that we deliver services people want, rather than give them something which sounds wonderful but which they do not need. Does the Bill help bring this about? We said the last time that there would be a great deal of education. What will you be doing?

31. Prof Vincent: I spend much of my time educating people, as you know. After this meeting, I am heading to somewhere in Bushmills to talk to a Newtownabbey Council away-day.

32. There is a legislative requirement in the EU Electronic Commerce directive. As Dr Birnie said, by January next year we must be compliant. Targets are starting to move Departments. Ray Wright heads an inter-departmental group steering legislative co-ordinators, who at this very moment are identifying those pieces of legislation in their Departments that mention the word "signature". We shall therefore have a compendium of pieces of legislation which exist today in the health sector, in the Department of Enterprise, Trade and Investment, in the agriculture sector and so on which require paper and signature. That will then pose the question of what we need to do first. Taking the alternative I mentioned, is it a matter of all-embracing legislation which says that anywhere in a given sector it says "do this", one should do something else? That is an issue for Ministers, and the question is part of my educational process.

33. Mrs E Bell: You may not be able to answer this. Do you think that the reduction in paper for example, in the Health Service, will reduce staff and help increase efficiency, perhaps getting more money to where it is needed?

34. Prof Vincent: It is an excellent question, and I am delighted that it has come on the table. The key driver for this, from my perspective - and thankfully from that of the Departments I have spoken to - is about improving the quality of the services we deliver. Most of the major Government initiatives I have been involved in during my career have been about driving down cost, or about efficiency mechanisms. This is more important, being about choice and quality of service. Cost is involved, and I mentioned cost benefit. We must keep that in mind, but it is not the primary driver. We are not forcing people to go down the route of electronic government to try to reduce cost.

35. We are trying to enable the small shopkeeper to do VAT returns at 8.00pm on a Friday night, not Monday to Friday, 9.00am to 5.00pm. Cost is important, but it is not the key driver.

36. Mr Beggs: You said that individual Departments would have a choice of whether or not to use all- embracing legislation to widen the use of electronic services. Would it be possible to have one piece of all-encompassing legislation, or must each Department have its own? What happened in England in Wales?

37. Mr Shanks: The powers in the Bill are given to the appropriate Department. Under clause 2, the appropriate Department is defined as the Department with respon- sibility for that particular area of business. Each Department will have to amend the legislation in its own field. We cannot have an all-embracing inter- departmental amending instrument.

38. For instance, the Department of Social Development might choose - although the decision would be the Minister's - to have an all-embracing amending instrument for social security which would cover everything in the existing legislation. The Department of Enterprise, Trade and Investment, on the other hand, is so diverse that it might not be useful to the users of legislation to batch it all under one particular instrument. Practical reasons will determine how Departments handle it.

39. Mr Beggs: What happened in England and Wales?

40. Mr Shanks: Very little. One or two things have happened, but England and Wales are still in the process of bringing forward their legislation. They are still sifting.

41. Prof Vincent: There are two levels. They have enabling legislation and clause-editing legislation, as I believe it is called. I saw one of them in the press last week. Company law states that communication between directors and shareholders must be on paper. The Bill being brought forward proposes that they have the choice of doing it electronically. Those are the two levels.

42. Mr Wright: I can confirm that English legislation is being taken forward by several Departments.

43. The Chairperson: We move to clause 1 of the Bill, and I shall ask Mr Wright to give us a brief overview. Members will then have an opportunity to ask questions about the clause.

44. Mr Wright: Clause 1(1) of the Bill provides the powers to the appropriate Department to amend any of its statutory rules or legislation, and to amend any provision contained in any given scheme for the award of a licence, an authorisation or a grant. Clause 1(2) of the Bill spells out the functions which are currently carried out in writing, and which would be allowed to take place through electronic means in future. These include the giving of evidence in writing, authorising a document, sealing and witnessing a document, giving an oath, making a statutory declaration and keeping accounts and records.

45.Clause 1(3) requires that in cases where we provide the powers to conduct all of these transactions electronically, we must be satisfied that the records of those transactions will be no less satisfactory than current conventional records.

46. Clause 1(4) deals with the array of provisions which may be made in any legislation passed subsequent to the Bill. When Departments bring forward their own amending legislation, they can define certain elements. These include the definition of the electronic form which a communication must take; they can impose conditions on the acceptance of such a form; they can refuse to accept the receipt of the form if it has not been done in the appropriate fashion. If, for example, application forms are posted on a website, the proper electronic application form must be used. Those are the sort of conditions which the Departments will want to specify as they amend their own legislation.

47. It goes on to allow certain provisions for the carrying out of functions on storing information. That may be to require people to archive material in a certain fashion or for a certain period, or to allow access to it in certain circumstances.

48. It allows such legislation to be couched in terms that the requirements to apply for any particular service may be specified by an individual identified within subordinate legislation. Therefore, Departments can state that this shall be conducted in accordance with the rules set down by an individual, and that those rules can be added subsequently.

49. The Bill provides that any criminal or other liabilities which could attach to a written communication, will similarly attach to that communication if carried out in electronic form.

50. It can require persons to prepare and keep records, and to produce the contents of those records for the particular business in hand. It may also require that such records be produced at the insistence and at the legal suit of a named individual.

51. Clause 1(5) specifies certain matters in relation to subsection (4)(g), which states that certain matters may need to be determined in relation to a transaction. Those matters might include whether the transaction has been completed electronically; the time and date on which the transaction took place; the place where it was transacted; the person who completed the transaction; and the contents, authenticity and integrity of the data contained in the transaction. Those are the matters that can be specified. Departments can say how those things will be decided when we are making subsequent legislation.

52. Clause 1(6) is pertinent to the opening discussion. No compulsory use can be stipulated in any legislation concerning the development of electronic services. The traditional means of conducting the service must still be available under the terms of this Bill. Those who do not have access to electronic means will still be able to conduct business in the same fashion. The one proviso is that where someone gives an undertaking to conduct business electronically, then before they can alter that decision, or withdraw from conducting business in that way, they may be required to give a period of notice. That is something, which a Department can include in its legislation.

53. The Chairperson: I wish to raise an issue concerning clause 1(3), which refers to, "electronic storage for any purpose". Is this subsection enforceable insofar as that electronic communication has satisfactory storage facilities? Can you give the same guarantees in relation to storage facilities for electronic communication, bearing in mind that the Inland Revenue lost approximately 2 million of its cases recently? Are we in a position to give those guarantees, thereby allowing this legislation to move forward in real terms?

54. Prof Vincent: There are two issues. The first involves the technical storage facilities capability and the second is the management of the electronic record. Both have to come together. We can manage. Our colleagues in the financial services industry have a legal requirement to retain records of debits for 10 years and credits for seven years. They have been doing this quite effectively for some time, bearing in mind the scope for human error. Technically, it is feasible.

55. The Chairperson: Is this possible, despite the problem of computer viruses, which can wipe out significant parts of a computer's memory?

56. Prof Vincent: There can be no guarantees ¾ we live in the real world. As far as technical feasibility is concerned, it can be done.

57. The Chairperson: Is the Bill not negated by the fact that you cannot give guarantees? Clause (1)3 states that:

58. Prof Vincent: In fairness, I do not think that you would get guarantees that paper will be available 10 years from now. There are floods, and there are fires. I worked in a bank for some years, and we lost significant records in a flood.

59. Mr Shannon: You did not lose the records of my overdraft, anyway. [Laughter]

60. Prof Vincent: The key phrase is "no less satisfactory" than traditional means.

61. The Chairperson: Subsection (5) contains the wording, "whether a thing has been done", "where a thing done" and "by whom such a thing was done". Is there no better terminology that could be used there?

62. Mr Wright: Far be it from me to second-guess the legislative draftsman. These are the recommendations we have from our legal colleagues on how these matters should be couched.

63. The Chairperson: OK.

64. Mr Gibson: I want to return to the issue of storage. I live in the real world, and I wish the income tax people would lose all their records. [Laughter] If existing legislation requires a Department to store for, say, 20 years, will that legislation still apply? If farming records currently have to be kept for 10 years, I assume that the existing legislation will continue to cover that.

65. Prof Vincent: Correct. It will apply to areas such as the population census, which is carried out once every 10 years, and the agriculture census, which is carried out four times a year. They will be held for a period so that trends can be examined. The way in which electronic records are held must be no less satisfactory than records on paper.

66. Mr Gibson: Barring fire, accident and mayhem.

67. The Chairperson: Have members any further questions on clause 1?

68. The Chairperson: Mr Wright will give an overview of clause 2 before any questions are posed.

69. Mr Wright: Clause 2 states that "the appropriate department" permitted to make changes to its legislation in relation to any matter means "the Northern Ireland Department which is responsible for that matter." However, in cases where the matter involves more than one Northern Ireland Department, any reference to the appropriate Department is a reference to all those Departments engaged in that business.

70. Subsection (3) says that

71. We are not yet aware of the entire volume of legislation that will require to be changed, but I suspect that it would be impracticable for it all to come through under an affirmative process. However, it will be subject to a resolution of the Assembly, and Members can make it an affirmative matter should they so wish. Subsection (4) relates to cases where a draft Order is taken through by the affirmative process. Subsection (5) says that an Order may provide for any conditions or requirements imposed to be framed by a reference to the directions of other individuals.

72. Mr Gibson: "Such persons" seems to be a casual style of wording. Would "other individuals" not be a better alternative?

73. Mr Wright: The wording is

74. The Order will set down the conditions by which the individual will be specified. Paragraph (b) provides that any condition or requirement to be satisfied may be done to the requirement of that specified person.

75. That person will be the arbiter of whether certain things have been carried out in an appropriate fashion. Subsection 6 says that, under any legislation brought under section 1 - which is primarily about allowing the use of electronic communication rather than written forms - other amendments may be made to a particular scheme or service. The vehicle used to amend the aspect relating to electronic communication may also be used to amend other aspects of a particular scheme.

76. Mr Beggs: Subsection 1 refers to the Northern Ireland Departments. Can you clarify the position in relation to other areas of the public sector in Northern Ireland, as regards to reserved matters? Are they already enabled by legislation?

77. Mr Wright: Any legislation relating to reserved matters will be dealt with by the Secretary of State.

78. Mr Beggs: Is that still to be dealt with?

79. Mr Wright: Yes.

80. The Chairperson: Are there any further questions?

81. Dr Birnie: Are non-departmental public bodies dealt with by the relevant Department?

82. Mr Wright: Yes. We would expect the sponsoring Departments to look at the legislation regarding those bodies.

83. The Chairperson: Are there any further questions? OK.

84. Mr Wright: Clause 3 concerns the prohibition on key escrow requirements. We discussed the implications of this earlier in the meeting. Key escrow, if introduced in the subsequent legislation, would have required that the key to encrypted information be deposited with a third party. This clause prohibits that activity. However, subsection (2)(a) stipulates that subsection (1) shall not prohibit the proper deposit of an electronic key with the intended recipient of an electronic document. That is because you would be unable to actually read the document that was intended for you.

85. Paragraph (b) applies in cases where the original key becomes unusable, either because it has been lost or corrupted - bearing in mind that it is a software-based key. In these circumstances, other arrangements may be made.

86. Subsection (3) explains what an electronic key is. It is a password, an algorithm, to allow access to data, and facilitate putting a data in an intelligible form.

87. The Chairperson: Do the members have any questions?

88. Mr Wright: Clause 4 is the interpretation of terms contained in the Bill. I hope that the detail is self-evident. I will be happy to take any questions on that.

89. The Chairperson: Do the members have any questions?

90. Mr Wright: Clause 5 is the short title of the Bill. It may be cited as the Electronic Communications Act (Northern Ireland) 2001.

91. The Chairperson: I assume that there are no questions.

92. The Chairperson: This completes the Committee stage of the Bill. I thank Prof Vincent and his colleagues for their assistance. The draft report will be presented to the Committee for consideration at its next meeting on 31 January.

93. Mrs E Bell: I am pleased that this meeting has taken place, because we need to push ourselves and develop this issue. I am concerned, however, about how this will be implemented. Problems may arise during this process and we, as Assembly Members, need to know what these problems might be.

94. Prof Vincent: Some members of this Committee also sit on others, and I suspect that some of this business will come before those other Assembly Committees. The real push will have to be made by these Committees.

95. Mr Wright: I am the chairman of the inter- departmental committee of legislative co-ordinators, in which each of the Northern Ireland Departments is represented. That committee reports to the inter- departmental e-government project board. The Members of my working group are currently looking at the array of legislation which exists across all of the Departments, which will need to be amended. We are meeting in three weeks to take a look at the first sift of that. We will also discuss efficient methods of channelling that legislation through the legislative process of the Assembly. We will also be setting some priorities, because there will be a need to comply with the Directive on e-commerce, therefore Bills relevant to this will receive priority.