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Mr. Charles Clarke: I was pleased to see the right hon. Member for Maidstone and The Weald (Miss Widdecombe) speaking on this matter. She made a sincere and effective speech. I look forward to seeing her on Monday evening, although, unfortunately, she cannot speak then. I gather that, when it comes to debating her position, the Opposition Chief Whip will speak for her. However, I am delighted that she has participated in this evening's debate. She put her points well and correctly. I want to emphasise that there is no difference across the Floor of the House on motivation. The right hon. Lady was right to say that we need to focus on action. She certainly will not hear from me any remarks about thought crime. As she correctly said, action is the issue.
The hon. Member for Sutton and Cheam (Mr. Burstow) mentioned the meeting that I had with him and his constituents, the parents of the young woman who was assaulted by Patrick Green. As I said to the hon. Gentleman subsequently, the meeting was exceptionally interesting, moving and powerful. A substantial number of my officials were present, and they found the hon. Gentleman's account, which he gave in more detail than, rightly, he has been able to in the Chamber, exceptionally illuminating and motivating. I take this opportunity to express my gratitude to him for bringing the delegation to see me and for discussing the matter in the way that he did.
The case to which the hon. Gentleman referred and all the issues that have been discussed raise a very wide number of points. They raise issues about the law. Members have referred to the changes that have been made already, and there is a question about whether the law should be changed further. The issues raise points about the conduct of internet service providers, whose operations we are addressing by another route. Questions are raised about the quality and strength of guidance given to parents of young children who use the internet. When I was an Education Minister, I was involved in establishing a working party and guidance on that matter, which can give a certain degree of reassurance. Important issues of police practice are raised. The hon. Gentleman will recall mentioning some of the cross-boundary, police training, guidance and other issues.
The central point is that, across the Floor of the House, there is no difference in motivation or in the need for a proper programme to address these issues. We must ensure that it is right. That is the spirit in which I shall deal with each of the new clauses.
The hon. Member for Mole Valley (Sir P. Beresford) spoke powerfully to new clause 11. We very much share his concerns and we are determined to ensure that the courts have adequate powers to sentence those convicted of producing, distributing and possessing child pornography. Every pornographic picture of a child is by definition a picture of child abuse. The House must try to find a means of dealing with that. The sex offences review, consultation on which ended a few days ago, focused on child protection in order to find a better legal framework for addressing the issues.
We consider that we acted quickly to implement those changes on 11 January so that the higher maximum penalties came into effect for offences committed after that date. We believe that it is important to change the sentencing practices of the courts. That is what this is all about. Having only recently increased the maximum penalty, it is important to establish properly the effect that that change has had on sentencing practice in the court--that brings us back to the point made by the right hon. Member for Maidstone and The Weald about action--before we decide whether we should increase the penalties yet again.
As the hon. Member for Mole Valley said, in addition to setting out the maximum sentences available to the courts, in specified offences the Attorney-General has powers to refer cases to the Court of Appeal for review if he considers that an unduly lenient sentence has been imposed. The powers are limited to offences triable on indictment only and certain triable either way offences specified in an order, which is subject to the negative resolution procedure.
The Attorney-General does not have power to refer offences of distributing or possessing child pornography. Although last August we extended the Attorney-General's powers to include trafficking in child pornography, at that time we undertook to keep his powers under review, with a view to considering whether additional offences should be added.
The new clause seeks to extend those powers to include offences of distributing and possessing child pornography by amending section 35 of the Criminal Justice Act 1988. As I have already said, and as the hon. Member for Mole Valley made clear, there is already power to extend the offences by means of an order. We have used that power on various occasions. I give the hon. Gentleman an assurance that, as we have already undertaken to keep the powers under review, in the light of the concerns expressed we are actively considering whether we should use secondary legislation to extend the Attorney- General's powers to include offences under the Protection of Children Act 1978 and section 160 of the Criminal Justice Act 1988.
We believe that extension of the powers by means of secondary legislation is the appropriate legal way to proceed. The hon. Member for Mole Valley said that new clause 10 was a probing measure and I hope that he will be prepared to consider withdrawing the motion. I give him the assurance that we are actively considering the proposal and are doing so positively with a view to achieving the extension to which he seeks to draw attention. The case that he makes is convincing and I assure him that we will consider it sympathetically.
As the hon. Member for Mole Valley said, we debated the subject matter of new clause 10 at great length both in the Committee that considered the Regulation of Investigatory Powers Bill and on the Floor of the House. It was also debated in the other place. The hon. Gentleman participated in the debates in the House. My hon. Friend the Member for Luton, South (Ms Moran) participated
A range of children's charitable organisations argue that those who have committed appalling crimes should not be able to avoid the sentencing consequences of those crimes by refusing to give the encryption information that is necessary to convict them. I have great sympathy with that powerful and true point. We had to make a balanced judgment. As I said during proceedings on the Regulation of Investigatory Powers Bill, the need to tackle the activities of people who utilise new technologies was a strong driver behind part III of the Bill. We resisted calls to increase the sentences for a section 53 offence along the lines suggested in the new clause because we could honestly say that the non-compliance offence was difficult to formulate. As with the rest of the Act, it was all about striking a balance.
The overriding concern in setting offences must be the seriousness of the offending. In our view, there is no parity between the crimes that we are talking about and the offence of not providing the encryption that would enable those crimes to be identified. We took the view that the penalty for that offence did not and should not depend on or vary according to the nature of the material that may be protected by that key.
Opposition Members criticised us last year on the grounds that part III amounted to a return to key escrow by intimidation. They expressed that genuine and legitimate point on behalf of the industry. We did not accept that argument. I hope that the hon. Member for North-East Hertfordshire (Mr. Heald) will concede that we had a balanced debate throughout the Committee stage on the need not to attack the industry too much in the regulation that we were establishing. We had to balance that with the key public law enforcement issues. That was a constant theme of our debates. We took the view that we should keep a hierarchy of offences and not confuse the offence with the decryption offences. That was why we came to the view that we did.
Of the three new clauses in the group, new clause 10 gives me most difficulty. There is a real case for what the hon. Member for Mole Valley is advocating. I said that directly to the children's organisations and to my colleagues in this place and the other place who argued the case that the hon. Gentleman articulately put this evening. We came to the judgment that I have set out, and I ask the hon. Gentleman to consider withdrawing the motion on those grounds.
The right hon. Member for Maidstone and The Weald spoke to the substantive new clause, new clause 5. I was considering making a number of points about the cases that she mentioned, but I shall deal with the arguments of substance first. New clause 5 is well intentioned, and I accept the sincerity with which it was tabled, but our assessment is that the introduction of the word "entice" would not achieve the changes that the right hon. Lady and the hon. Member for Sutton and Cheam argued it would.
It would appear that to add "entice" to "incite" would widen the scope of the offence, but my advice is that it would not. The courts have held that "incite" involves some form of persuasion or encouragement. It does not matter that the incitement is unsuccessful. As there is no definition in the amendment of "entice", the courts would be bound to give it its ordinary natural meaning.