Clause 2
Counter-Terrorism Bill
11:15 am
Tony McNulty (Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office; Harrow East, Labour)
The bail point should be pursued. I am aware that Sir Ian made those remarks. As I understand it, under section 49 of the Regulation of Investigatory Powers Act 2000, five years is the maximum tariff for such an offence. We can explore elsewhere whether that is appropriate. For our purposes, there is no power under the Bill for the police to demand the key to un-encrypt a document. That is partly because we have the RIPA powers.
I am grateful for what the hon. Member for Somerton and Frome said about the reasonableness of a charge of obstruction. I do not entirely agree with the hon. Member for Lancaster and Wyre because if the obstruction becomes more serious than is described by the hon. and learned Member for Beaconsfield, other charges may kick in. If the offence turns into wilful assault or something else, the relevant charges will prevail.
The hon. Member for Lancaster and Wyre is right in his broad point about the ability to utilise forensics in terrorism cases and that is dealt with elsewhere in the Bill. In the narrow field of clause 1 and the temporary seizure to establish the legality of formal seizure, obstruction as outlined is entirely right. As I think I said last week, we have finalised, produced and have in place the statutory instruments and codes of practice necessary for the part of RIPA that deals with encryption so that it works effectively. We agreed quite rightly with the industry that that had to be done in a practical way for it to be effective, rather than on a whim or exhortation from the Palace of Westminster, which would cause enormous difficulties in the practicability of establishing the charge.
The Lord knows that I do not want to challenge an established QC, rather than a more recent one and I congratulate the hon. and learned Member for Beaconsfield again for attaining silk. I use the term “Friend” loosely, but my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) said on Second Reading that in effect, under common law and the rule of law, the Government have indefinite detention powers on encryption because if a judge in a trial instructs an individual to give the key to un-encrypt a database, it is contempt if he fails to do so, and he can be imprisoned for contempt for ever. The judge will call him up every now and then to ask whether he is able to behave. If the answer is no, the judge will say, “Well off you go.” My hon. and learned Friend alluded to the fact that that was entirely indefinite and that that was the way to deal with such cases.