Question proposed, That the clause stand part of the Bill.

We have already discussed that technological change can be very rapid, and that criminals, including fraudsters, are quite technologically literate and very often embrace emerging tech capabilities to attempt to defraud the public. Just as we previously discussed in relation to articles used for serious and organised crime, so here, in clause 8, we are proposing to create a power by regulations for the Secretary of State to make a list of new items that might be prohibited where they can be used for the purposes of committing crime by way of electronic communications.

As the shadow Minister has said, one has to be a little cautious about conferring regulation-making powers too freely, so there are constraints on this. For example, the offences created using these regulation-making powers can only create summary offences of possessing or supplying technology to be used in connection with fraud facilitated by electronic communication. It is very specific and very narrow.

The shadow Minister previously asked about consultation. I said that there was no statutory requirement to consult on those extensions—outside of the devolved Administrations, of course—but that the broad intention was to do so, unless there was a very good reason otherwise, such as an emergency. Here, however, we do have a statutory duty to consult. Members will find it in clause 8(5), which states that

“the Secretary of State must consult such persons appearing…to be likely to be affected by the regulations”.

There is therefore a statutory obligation to consult here, which I hope provides the shadow Minister with the assurance that he is probably about to ask for.

I am afraid that clause 8 deeply frustrates me. I do not think it is in any way the same as clause 2(3). That provision allows the Secretary of State to add items to and remove them from an established list concerning an offence that is established in law on the face of the Bill. This is slightly different. Clause 8(1) states:

“The Secretary of State may by regulations create a summary offence of possessing or supplying an article specified in the regulations.”

That is making a law, not monitoring a list. This is an example of a Henry VIII power used badly. The provision should be in the Bill, and if the nature of the networks is likely to change over time, there should be a mirroring power, similar to that in clause 2(3), that enables us to change the list. We would have supported that. This puts us in an invidious position. Of course, we want this to be in legislation and we want there to be regulation and control over electronic communications networks or services being used in a dangerous way. However, we are being asked to jump into the abyss and to choose between either voting against including in the Bill something that we think is broadly a good idea, or allowing the Government to do an incomplete job and leave a placeholder. Even as I stand here, I am not sure which is the right answer.

I welcome the fact that consultation is on the face of the Bill. That gives us some degree of safeguard. However, accepting the clause would mean accepting that a significant offence would be created and decided upstairs, rather than in the white heat of the legislative process. I do not think that is right. I am not sure if the Minister is able to say anything that will give me slightly greater comfort. If we were able to see what the offence looked like between different stages of a Committee, that would probably be enough to salve my pain. I do not think that will happen, but I will listen to what the Minister says.

I am grateful to the shadow Minister for his question. I point to the way the clause is constructed. Clause 8(2) is narrowly defined, in that is says:

“An article may be specified only if the Secretary of State considers that there is a significant risk of the article being used for a purpose connected with fraud that is perpetrated by means of—

(a) an electronic communication network, or

(b) an electronic communication service.”

Clearly the Secretary of State’s decision would be amenable to judicial review if it were unreasonably exercised. The scope of the ability to create a new criminal offence is highly circumscribed and it has to fit within that narrow box in the Bill.

I accept that that is circumscribed; it is not narrow. However, electronic communication networks constitute an exceptionally broad area of British life, touching us every minute of every day, and that does not feel very narrow at all.

That is only part of the circumscription, because prior to that the clause says,

“being used for a purpose connected with fraud”.

If we think about that as a Venn diagram, the shadow Minister is right to say that electronic communication networks and services represent an enormous field. However, that is not where the power is created. It is created in the intersection between that bit of the Venn diagram and the bit where the article or technology is being used for a purpose connected with fraud, and that intersection is a lot smaller.

I do not think that any member of this Committee or any Member of Parliament, of either party, would object to criminalising technology being used for a particular fraudulent purpose. In addition to the protection afforded by the statutory obligation to consult, there is also the fact that this can only be a summary offence, which severely limits the maximum penalty that may be applied.

I am very grateful to the Minister for giving way. He is being very generous. I completely agree that there is not a person in this building—including, I suspect, the mice on the Terrace—who think that it is a bad idea to have powers that restrict fraudulent use of electronic communications. The problem is that in the previous debate the test for that was good reason and then we would rely on the court. In the eyes of Government, therefore, it is clearly not black and white whether it is fraud and they may well rely on others to define that. In order to get through the blockage, perhaps the Minister could think about that in the context of the assurances he gave on good reason to my hon. Friend the Member for Bootle. That would probably be enough for me at this point.

I can certainly confirm that where someone possesses technology for a good and legitimate reason, by definition it would not be getting used for a purpose connected with fraud. I can also confirm that where someone possesses communications technology for a legitimate purpose and not for use in connection with fraud, we would not expect that to ever be criminalised, either through offences created via this clause or in any other way. I hope that assures the shadow Minister.

Subsection 4 says:

“The regulations may—

(a) contain exceptions or defences” of exactly the kind that we have created in clauses 1 to 4 already.

I hope that the assurance I have given, which will be in Hansard, combined with the narrow nature of this, the narrow scope of the ability to create offences, the statutory duty to consult, and the fact that it is a summary offence, meaning that the maximum term is six months at the moment—all those things taken together—will give the shadow Minister assurance on the questions that he is raising.

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.