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Lord Goodhart: My Lords, I am grateful to the Minister for what has been a remarkably brilliant defence of a wholly and utterly indefensible position. The Government must think again.
If the Minister quoted something from John Simpson's article—which suggests that she has read it—then I cannot quite refrain from saying something, which is unfair, because it is the Government's fault rather than hers. He says:
"I have a lot of admiration for Baroness Scotland, but she clearly doesn't understand the first thing about the kind of journalism that she and her fellow ministers have now chosen to put in danger".
I think that the Government must rethink their position on this. To help the Government to do so, let me make it absolutely clear that we will bring this back on Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 [Maximum penalty for contravening notice relating to encrypted information]:
Lord Henley moved Amendment No. 62A:
The noble Lord said: My Lords, I hope to be brief, bearing in mind what I imagine are the strictures of the Chief Whip. This is a new issue, but I believe it to be important, and I hope that the Government will look
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seriously at it. The amendment would create a maximum penalty of five years for withholding an encryption key, for all offences.
I must make it clear that the amendment is probing. The more I look at the amendment, the more I have fears that it might be defective. Having said that, as I said earlier, it is important and I hope that I can get a serious response from the Government.
The purpose of the amendment is to question whether the difference in length of sentence between cases of national security and other cases is appropriate. This issue is particularly relevant to cases, for example, of serious fraud, predatory paedophiles and serious organised crime. With powerful encryption software becoming increasingly available and more widely used by criminals in cases such as these, it would seem logical that a criminal under investigation for such offences would prefer to face a two-year sentence than any of the likely charges resulting from the availability of that encrypted evidence to the police.
The police have made it known that they find it increasingly hard to de-encrypt material that could contain evidence that would be vital to bring such charges. Indeed, there are growing numbers of cases where charges have not been brought due to an inability to de-encrypt material held on computer hard drives. Not only would such criminals not be punished to the full extent that they deserve, but the withholding of the encryption material would mean further victims and suspects could not be identified.
but Clause 15(2) states that in cases of "national security" there is a maximum of five years, and "in any other case" two years. It would be helpful if we could have a definition of precisely what the maximum sentence was going to be in many cases.
Having said that, I hope that the Government see the problem here. There might be those who prefer to refuse to help the police with that de-encryption, because they reckon that a two-year sentence—the maximum available for such refusal—would be better than a sentence that they might get beyond that. I therefore ask the Government to give serious consideration to the issues raised by the amendment.
Again, I apologise for not bringing this up earlier, because I think it is more a point for Committee, but it was only made available to us at a late stage. I think it is one on which the Government should give a serious response. I beg to move.
Lord Bassam of Brighton: My Lords, I am very grateful to the noble Lord, Lord Henley, for moving what he described as this late amendment—a bit of an afterthought—as it allows us to cast a watchful eye over Clause 15, which might not otherwise have attracted too much attention.
The clause increases the penalty for failing to comply with a notice issued under Section 53 of the Regulation of Investigatory Powers Act 2000 in
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national security cases from two to five years. RIPA, at the Act is known, put in place a system of notices requiring those who hold the key to encrypted data relating to criminal investigation to hand it over. Failure to do so constitutes an offence which currently, as the noble Lord carefully explained, carries a maximum penalty of two years. Thus far, we have had a high degree of co-operation concerning the way in which the legislation works. As the noble Lord also described, the Bill increases that penalty to five years in cases where the interests of national security have led to the notice being issued. The amendment would apply that change to all offences.
My first reaction is that the amendment is not really appropriate for a terrorism Bill, and I think that the noble Lord, Lord Henley, half-accepted that in his comments. The change in question is, by definition, concerned only with cases unrelated to terrorism and, for that reason, it probably would not be appropriate for your Lordships to accept the amendment. There may be some merit in the amendment well outside the confines of the Bill, but that is for consideration or debate in the future.
The Bill is concerned largely with the UK's response to the very real and current threat of terrorism. At this stage, I argue that we need to be focused, considered, determined and disciplined before we start considering adding other, unrelated matters, however worthy they are, and the noble Lord gave a hint of some of the areas of concern.
We brought forward Clause 15 because we recognise that national security cases are in a special and uniquely serious category and that the higher penalty can be justified for them. The argument for a higher penalty in cases not related to national security has not yet been made, although, as I acknowledged, it is something to be considered in the future. We can debate that another day. Were we to consider going along that path, clearly we would want to have discussions with the IT industry and consult it very carefully—perhaps the noble Lord has had some of those discussions.
I understand why the noble Lord has moved the amendment but it is outside the scope of the debate that we have been having today, which concerns interests relating to national security. Although the amendment may be worth while in another context, I
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think that it is somewhat premature and I hope that, having heard that, the noble Lord will feel happy to withdraw it.
Lord Henley: My Lords, I am more than grateful to the noble Lord for that response. Obviously he is right that the Bill increases the penalty to a maximum of five years in national security cases, which is what the Bill is about. I still think that the amendment raises a serious point that, as the noble Lord said, goes beyond this Bill.
I ask the noble Lord to do something for me, although I hope he will appreciate that there is no urgency because it does not relate to the Bill. Perhaps he or the Minister could write to me setting out the maximum penalties for some of the other offences that I mentioned—for example, paedophilia and so on, which has been in the news of late. Is the maximum always two years? If so, does that not create cases where, in relation to some offences, it is in the interests of some people to refuse to assist the police and to refuse to help with de-encryption, because they know that the maximum penalty that they are likely to receive is two years for refusing to help with de-encryption rather than something much worse further on?
Having said that, I am grateful to the Government for the fact that on this occasion they have increased the penalty to five years in cases of national security. As the noble Lord put it, the new subsection (5B) of what I suppose will be the new Section 53 of the Regulation of Investigatory Powers Act spells out what a "national security case" means. I hope that the noble Lord has got that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Commission of offences abroad]:
Lord Bassam of Brighton: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
Equality Bill [HL]
Returned from the Commons with amendments and with a privilege amendment; it was ordered that the Commons amendments be printed.
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