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Mr. Grieve: I thank my hon. Friend for drafting the amendment. Viewed from a lawyer's perspective, it seems rather clearer than if it were the product of legal minds. It clearly shows its intention. It also strikes me as being very sensible, and I therefore hope that the Government will view it favourably.
Mr. Humfrey Malins (Woking): I simply reinforce what my hon. Friend the Member for Beaconsfield has said. I congratulate my hon. Friend the Member for Mole Valley (Sir Paul Beresford) on his outstanding work over the past few months, which has done the Committee a great service.
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Beverley Hughes: I sympathise with the idea behind the amendment. The hon. Member for Mole Valley knows from the time when I chaired the taskforce that I appreciate all his work not only on the Bill but in this area. I know the spirit in which he has tabled the amendment.
There is an issue about the possible return of computers—or, as the hon. Gentleman says, other kinds of equipment on which indecent photographs can be stored—to a person who has used them to commit an offence under the Protection of Children Act 1999. The hon. Gentleman acknowledged that we must consider several issues.
On one hand, I share the hon. Gentleman's concern that the existing legislative provisions for making an order are not always applied for or thought about. I have discussed the matter with officials, and we cannot say hand on heart that there is a robust mechanism that will always retain computers and equipment containing such material. On the other hand, we must work out several sets of issues. First, the hon. Gentleman mentioned the drafting of the amendment, which is a technical issue that we can take away. Secondly, as has been said, there are apparently problems with permanently removing material from the hard drive. Furthermore, such material is often stored not on the hard drive but on floppy discs. Thirdly, how can we deal with equipment that is owned by someone who has not committed the offence? We must work our way round those issues and think of ways to accommodate that problem both in its own right and in relation to the technical issues, which I have just outlined.
If the hon. Gentleman agrees not to press the amendment to a vote, I will certainly take away the spirit of his proposals to see whether we can return on Report with something that addresses the issues that I have outlined while assuring the Committee that a robust mechanism will be in place to ensure that equipment is not returned when we suspect that it contains such material.
Sir Paul Beresford: Police forces throughout the country will be grateful to hear the Minister's comments. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause, as amended, stand part of the Bill.
Sandra Gidley: I just want to explore the meaning of ''indecent''. Some have advocated the complete removal of the clause because they think it unworkable. I am not sure that I share that view. Some organisations, such as Liberty, have pointed out that it will be impossible to police the clause. The difficulty is establishing age. It has been suggested that a provocative picture of a teenage girl band—we all know that such things sadly exist—which is innocently aimed at teenage girls, could conceivably fall foul of the clause. I thought that somewhere in the Bill there might be a definition of what would be classified as indecent. I may have simply run out of patience and
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got bored, but I could not find one anywhere. Can the Minister clarify where exactly the line between decency and indecency will be drawn?
Beverley Hughes: The hon. Lady raises an interesting point. We all have our own definitions of what is decent and indecent, which may differ to some extent. I do not think that we can put a firm definition in legislation. The fact is that there is not a definition of indecent in this Bill or, as far as I am aware—I stand to be corrected—in any Bill. Rather, the definition of what is indecent is compiled over time in case law. I think that that is right because our ideas on what is decent and indecent change over time with social mores and cultural values. Our understanding of young people changes too. There is a compilation in case law, but no definition in the Bill.
Sandra Gidley: In other Committees on which I have served, where there is vagueness such as this the Government have usually said that they will produce guidelines so that the judge knows what is going on and can direct a jury. We seem to have a complete absence of that here. Perhaps we could have a current set of guidelines to take account of what is thought in 2003. Is that not a workable suggestion for the Government?
Beverley Hughes: The judges and courts will be very familiar with existing case law and will apply their knowledge of that to individual cases. That is the right way to go about it because our ideas about the definitions change with time. It would not be helpful or feasible to try to establish a definition of indecency in legislation. That is much better left to the evolutionary approach through case law.
The clause will change the definition of a child in respect of indecent photographs under the Protection of Children Act 1999. The age will be raised from under 16 to under 18. The clause offers a reasonable but limited defence to allow the private use of indecent photographs of a child over the age of consent who consents and who is in the circumstances about which we have talked.
Question put and agreed to
Clause 47, as amended, ordered to stand part of the Bill.
Clause 48
Criminal investigations or proceedings
Mr. Grieve: I beg to move amendment No. 237, in
clause 48, page 25, line 5, leave out subsection (4).
Clause 48 provides, understandably, an exemption in relation to indecent photographs under clause 47 for ''Criminal investigations or proceedings''. I understand that to mean that if copies of an indecent photograph have to be made to be circulated in preparation for a trial, those engaged in that process are not thereby exposed to criminal penalties. It also applies to those who need to circulate such material because they are trying to catch someone or identify the person who has been photographed. That all makes eminent sense.
However I was slightly more curious about subsection (4). Separately from the other
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authorisations, there is an authorisation here that can be
''given by the Director-General of the Security Service if it appears to him necessary for the exercise of any of the functions of the Service.''
The Security Service may well get involved, for example, in an investigation into the trafficking of underage children for sexual purposes, in which case the photographs will have to be circulated. The small query that emerged in my mind was whether that would give a blanket permission to the Security Service to take photographs of a Ruritanian chargé d'affaires having sex with a 13-year-old for the purposes of inducing him to co-operate with the Security Service thereafter. Although I know that these are subjects over which delicate veils are drawn, I wonder whether, before we gave a statutory sanction to such activities, we might hear from the Minister what is actually involved.
Mr. Malins: Following on from my hon. Friend's comments, will the Minister explain whether the authorisation give by the director general is to be given specifically—that is to say that the decision making would involve only the director general—or is it wider, meaning that other members of the security services will be able to provide an authorisation under delegated powers from the director general himself? That is my first point. We have come across a parallel in other legislation where someone with a title is given authority, and it is important to clear up whether it is that individual person who has to make the decision and give the authority, or whether that person can delegate to others in his or her organisation. How wide is the prospect of authorisation being given?
Secondly, because of the slightly unusual circumstances, does the Minister think that there is any merit in the proposition that in the case of the director general giving authorisation, he or she should first seek permission from a High Court judge, or is she entirely happy with the provision as it stands? I join my hon. Friend in probing in relation to the amendment.
Beverley Hughes: I understand the spirit of the probing questions and hope that I can respond to Opposition Members. The effect of their amendment would be to prevent the director general of the Security Service alone, in the list of people to whom we are proposing to give authorisation powers, from giving that authorisation. That would presumably mean that the security services would have to seek authorisation in the list and would receive that only for the purposes listed.
In relation to the question of the hon. Member for Beaconsfield, I would say two things. First, the security services have a remit in relation to crime anyway. They do not simply deal with intelligence and security, as the hon. Gentleman is aware. It is important, therefore, that they are able to give authorisations to their personnel, as other services would. There is not a neat split between criminal activity and organised terrorist activity that is core to the remit of the security services.
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To give an example that we have talked about a fair bit, investigations into al-Qaeda took place to determine how such organisations communicate. It may be believed that some information pertaining to national security has been encrypted into a photograph or an image. It would be important for the security services to be able to draw down that image to decode and deconstruct the information that was in the photograph. Use of such images via the internet is one of the mechanisms that we know organisations use to communicate with their members in a secret way. That is a tangible example of why the security services need to be able to give permission to their staff to draw down certain images when they think that information is contained within.
The important point is that all the people listed in the clause—including the director general—are accountable for the way in which the authorisation will operate in their organisations. That is the key point. It may be that a particular individual at second tier may see the detail of the request to make a decision but the director general will be personally accountable. There is, therefore, no reason to make the director general of the Security Service go to a High Court judge, when we accept that other people included in the clause can be accountable in that way in law for the decisions that they make when they authorise their staff to draw down such material.
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I hope that that answer satisfies the hon. Gentlemen. We are not yet satisfied with the drafting of clause 48. The numbers of people who might, with justification, seek authorisation is actually greater than we initially thought as we worked through the clause. Therefore, the clause may be too widely drawn and the system may become overloaded. We are negotiating with the police services and others and we shall table our own amendment on Report. For absolute clarification, we expect to continue to allow the Security Service to ''make'' such images in pursuit of its functions as the clause states.
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