Counter-Terrorism Bill

Public Bill Committee, 29 April 2008.

Further written evidence to be reported to the House

Edward O'Hara (Labour, Knowsley South)

Following last week’s oral evidence sessions under my co-Chairman, Mr. Bercow, I welcome Members back from the opulent surroundings of Portcullis House to the more familiar territory of the Committee corridor and the more familiar business of line-by-line scrutiny of the Bill. I trust that we shall apply ourselves to that task with the required discipline. I have a couple of announcements to make before we start. Members should feel free to remove their coats, as it is important that you all feel comfortable. I remind the Committee that money resolutions and Ways and Means resolutions relating to the Bill are available in the room for Members.

Clause 1

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 51, in clause 1, page 1, leave out lines 6 to 11.

May I welcome you to the Chair, Mr. O’Hara? As far as acoustics are concerned, the fact that it is much easier to hear people in this room than it was in Portcullis House says something for our Victorian forebears, so it is rather pleasant to find ourselves here, even without the modern facilities.

Clause 1 will give a power to remove documents for examination. I say to the Minister at the outset that I have tabled some amendments to clause 1, all of which are probing and, I hope, will provide the Committee with an opportunity of seeing and understanding what the Government intend to do in that area.

It is a rather long-established principle of English law that the right to the privacy of one’s papers is sacrosanct, except where statute or the necessities of bringing prosecution give the state power to seize documents. That was established long ago in the case of Entick v. Carrington, which is the sort of case that one learns about as a law student and is thereafter permanently engraved on one’s memory. As I recollect, that case involved a Secretary of State, Lord Halifax, who seized an individual’s papers. The courts came down fairly strongly against him in the 18th century, arguing that papers were some of the most important things that an individual could possess. In a country that is governed by the rule of law and where documents may be of importance for legal reasons if for nothing else, it is easy to see where that principle originated. It is also enshrined in the European convention on human rights, certainly in respect of the clauses that outline the rights to property and privacy with regard to private documents.

When trying to seize material that is linked to terrorism and successfully bring prosecution, I fully accept that that rule needs to be tempered. The nub of the matter on which I seek the Minister’s clarification is this: what extra powers do the Government seek other than those in ordinary criminal law, which already gives the police the power, under a warrant, to seize documents that might be connected with the commission of an offence? It seems that the Government’s intention in clause 1 is, in those areas where it might be necessary, to seize documents to ascertain whether they are of a kind that can then be seized for the purposes of prosecution.

When one looks at subsection (1) in that regard, one will see that three of the provisions cited are linked to the Terrorism Act 2000. I am sure that the Minister will correct me if I am wrong, but I was under the impression that the 2000 Act already made provision for that type of preliminary seizure for ascertaining whether a document was linked to terrorism. In those circumstances, the first probing amendment that I tabled for the Committee’s consideration questions whether it is necessary for those three provisions to be covered. Can the Minister explain that a little? I dare say that he may, at the same time, take the opportunity to explain more about the general thrust of the clause, and we can then go on to consider the amendments that we have tabled on other aspects of the clause.

Tony McNulty (Labour, Harrow East)

I join the hon. and learned Gentleman in welcoming you, Mr. O’Hara, to the Committee. I also concur with him in welcoming everybody to this room rather than to the dainty little room in which we had the public evidence sessions. It is a pleasure to stand to speak. With your indulgence, Mr. O’Hara, we are moving close—as I promised last week—to a session for the Committee on intercept as evidence and coroners. I think that it will be on 7 May, which will hopefully be convenient for all Members who wish to avail of it.

I entirely agree with the hon. and learned Gentleman’s opening remarks about the principle of law and the privacy of papers. I hope that we will show that that concern is reflected in this set of clauses. I also hope that we will show that the reason for this and other clauses, which is not simply to enhance or grow the police’s capability to seize papers, but to seize papers to then ascertain whether the police have the right to seize them, is the correct focus. However, it might be useful—as he implied—if I talk a little about the clause and then come back to the amendment, because that will put matters into context, with a commensurate reduction in my ramblings on a clause stand part debate.

Clause 1 introduces a power for the police to remove a document for examination to ascertain whether that document can appropriately be seized. The police can remove the document to another place, such as a police station, and retain it there until the examination is complete. The power is limited to documents found during a terrorism-related search. The power gives the police lawful authority to take a document away for examination, to determine whether it can be seized. Hon. Members can work out for themselves examples of where that might be appropriate.

The police can already seize a document found during a search where they have reasonable grounds for believing that the item is authorised by the search power or warrant, has been obtained in consequence of the commission of an offence, or is evidence in relation to an offence. The power is to cover situations where no reasonable grounds exist. For example, where the police have conducted a search and find a document in a foreign language, they will not have been able to demonstrate fairly that they have reasonable grounds for believing that it might be evidence.

The power was first suggested by the Northern Ireland Office following the expiry, in July 2007, of a similar power that applied only to Northern Ireland and allowed the removal of a document to ascertain whether it contained information useful to terrorists. The police support the new power being extended to the whole of the United Kingdom and to allow examination of whether a document is evidence of wider terrorist purposes. People will understand that clause 1 establishes that principle, and elements of the clause detail the time frame for ascertaining whether seizure is appropriate, as do other clauses that we will discuss in relation to other amendments.

The point of the power is therefore to allow the removal of documents to ascertain whether the threshold for seizure—usually reasonable grounds for belief—is met. If the police found a document in a foreign language, they would need to remove it for translation before an officer could form the reasonable grounds for belief that the document was a terrorist publication, for example, and seizure of the document could take place. Without that power, the police may not be able to take possession of documents that might amount to significant evidence of a terrorist threat. The power may be used only when a search is carried out under the terrorism-related search powers of clause 1(1). Those allow for documents to be seized, but apply thresholds for such seizures.

The amendment would limit the power to documents found under the searches listed in clause 1(1)(d) to (f): searches for evidence of the commission of weapons-related offences; searches in relation to control orders; and searches for terrorist publications. The searches under paragraphs (a) and (c), which would be removed by the amendment, fall into two categories. The first category includes section 43(1) and (2) of the Terrorism Act 2000, which allows for the search of suspected terrorists before and on arrest. Both searches allow for seizure on reasonable suspicion. It is important that the power to remove documents is attached to those powers, for the reason already given that the current threshold for seizure might not be met for a document, the initial nature of which is entirely obscure.

The second category includes the search power under paragraphs 1, 3, 11, 15, 28 and 31 of schedule 5 to the 2000 Act, which allows for searches that take place as part of a terrorist investigation. Other than the powers under paragraphs 28 and 31, which relate to Scotland, those powers are covered under part 2 of the Criminal Justice and Police Act 2001.

David Davies (Conservative, Monmouth)

The Minister is making a compelling case. However, if the power to remove documents that might be written in a foreign language is necessary to investigate terrorist offences, will the same power not be necessary to investigate organised crime, which is also international? Why is there a disparity between the proposals for terrorism legislation and the current legislation for organised crime?

Tony McNulty (Labour, Harrow East)

The hon. Gentleman knows that the Bill relates only to terrorism. He makes a fair point, and I am not sure whether the matter was covered in the serious and organised crime legislation from last year. [Interruption.] The hon. Member for Somerton and Frome says from a sedentary position that it was not covered, but I will double-check that.

The power under the clause is needed in addition to existing powers because effectively we are lowering the threshold for removing documents for examination. That will allow the removal of documents not only that the constable is authorised to search, but that might turn out to be evidence of terrorist involvement. As hon. Members know, we are lowering the threshold only momentarily. We will come on to discuss the timing. It is important not only that the clause stands part, but that it stands without the amendment. I hope that I have explained broadly the new power to remove documents, why I think the clause should prevail and why the amendment should not.

Edward O'Hara (Labour, Knowsley South)

Before I call the hon. and learned Member for Beaconsfield to reply, I judge that in responding to the amendment the Minister in effect gave a clause stand part argument. I therefore give notice that I shall move clause stand part formally. If hon. Members wish to comment on the clause, they should do so during this debate.

Dominic Grieve (Conservative, Beaconsfield)

I have no objection to that course of action. During discussion of the coming amendments, we will be able to look at the subsequent detail. The Minister has outlined the principle of the clause and I am content with that. As I indicated at the outset, I will not resist the clause in its generality.

The Minister has made some important points and I come back to one, although it may feature in the next group of amendments. As I understand it, he has acknowledged that we are dealing with the removal of documentation with no requirement of even reasonable suspicion that it is terrorist-linked. Effectively, this is a blanket power in a terrorism search to remove anything until the authorities—that is, the police—have satisfied themselves that it is not terrorism-related and therefore not open to seizure.

It seems to me that that raises several issues to which we can return in a moment, and that is why I will not labour my remarks at this stage. First, is removing the reasonableness test that normally applies warranted? Could it not be argued that if one goes into a place where one starts collecting material, and one has a reasonable suspicion that there is a terrorism-related matter concerning those premises, it probably is reasonable to remove documents which one cannot immediately identify? Therefore, removing the reasonableness clause might be going too far.

My second question, to which I shall return under the next group of amendments, concerns the absence of time limits. The third matter—I raise it now because I am conscious of the fact that I did not table an amendment on the issue—is about allowing the individual whose papers have been taken to retain a copy, which does not appear to be expressly provided. The more I listen to the Minister, the more I begin to think that the provision of a copy might well be one of the key things that the person concerned ought to be doing.

If it has not been shown that such papers are terrorist-related, and if the individual concerned has not been arrested—because, otherwise, other powers would kick in—the Minister must guard against legal challenges. I can well foresee a charge being mounted by a person who argues that his private papers have been seized when there is nothing wrong with them, and that quite a long time afterwards he has still not heard whether the police are going to hand them back. From the Minister’s point of view, the danger is that if those documents were required for some legal purpose, claims for damages could be made against the police and the Government if the Government have not got that right.

I shall come back to those details again under the next set of amendments. I thank you for your indulgence, Mr. O’Hara, in allowing me to stray a little bit on the generality of the clause, but it seems to me that those are the key issues. I beg to ask leave to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 57, in page 2, line 8, leave out subsection (2) and insert—

‘(2) Where a constable who carries out a search to which this section applies finds a document that he has reasonable grounds for believing is one that may be seized, he may remove the document to another place for the purpose of ascertaining whether the document is one that may be seized and retain it there until the examination is completed.’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss amendment No. 1, in page 2, line 8, after ‘may’, insert

‘, if he has reasonable grounds for believing that a document may be seized, and’.

Dominic Grieve (Conservative, Beaconsfield)

I will try to avoid repeating myself. This amendment deals with the very wide power as it is described in subsection (2) which states:

“A constable who carries out a search to which this section applies may, for the purpose of ascertaining whether a document is one that may be seized, remove the document to another place for examination and retain it there until the examination is completed.”

On the face of it, this is a blanket power for a constable who comes across any document, the contents of which cannot reasonably be ascertained by looking at it immediately. That would include, for example, a document in a foreign language that he cannot read or, for that matter, any document that may be encrypted on a computer. The constable could take it away and retain it until such time as the examination is completed. There is no time limit and there is no requirement of reasonableness in respect of the seizure actually taking place.

I should therefore be grateful if the Minister could deal specifically with the issue of the reasonable grounds and whether it is required to be put in. Amendment No. 57 would alter subsection (2) to read:

“Where a constable who carries out a search to which this section applies finds a document that he has reasonable grounds for believing is one that may be seized, he may remove the document to another place for the purpose of ascertaining whether the document is one that may be seized and retain it there until the examination is completed.”

I find it difficult to see how the introduction of the notion of reasonable grounds would create problems for the police in such a setting. The police might go along to a house and find a document in Arabic which may be either an al-Qaeda wish list of the things they would wish the individual to do in this country or a bill for a restaurant in Peshawar. If the constable cannot himself read what the document says that must be reasonable grounds for believing that it is one that may be seized. I would therefore be grateful if the Minister would explain why the concept of reasonableness appears to have been taken out of the section.

David Heath (Liberal Democrat, Somerton and Frome)

I agree with the hon. and learned Gentleman that the reasonableness test has already been applied in respect of the warrant for the initial search, and therefore it is reasonable to suppose that a constable may reasonably suspect anything that is found and may wish to remove it. However, does he see any compatibility in this part of the Bill with the PACE code B? The two seem out of kilter. His amendment, and that in my name and that of my hon. Friend, would put the Bill back into conformity.

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely with the hon. Gentleman. The Bill is out of kilter, and that is precisely why I wanted to highlight the issue. While I am conscious that we are dealing with terrorism and that people have anxieties about terrorism—that is why we have a Counter-Terrorism Bill to give special powers—every departure from the ordinary processes of criminal law gives me a slight shiver, and I need good justification for such departure. My hon. Friend the Member for Monmouth correctly raised the point, “If terrorism, why not organised crime?” The answer is that for organised crime you still have to have a reasonableness test. Organised crime in many ways impacts severely on the well-being of the citizens of the country. That is why, when I come across something of that sort, I ask myself whether it is for the Government to justify the departure from the reasonableness test because, on the face of it, it is difficult to see how the test will provide any sort of fetter or inhibition on the ability of the police to do their job in that context.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I welcome you, Mr. O’Hara, and I am sure that we will have a constructive exchange under your chairmanship. I welcome the fact that the Minister started by offering the briefing on intercept and coroners matters.

It is difficult to follow the hon. and learned Member for Beaconsfield, who has carefully set out the reasons for amendment No. 57. The wording of our amendment No. 1 is identical to that in amendment No. 57. The crux of the matter—as the hon. and learned Gentleman set out—is the reasonable grounds for believing that a document may be seized. A number of members pointed out that without the test of reasonable grounds the Bill would be out of kilter with existing legislation. I hope that the Minister will explain why he believes that that is justified, and whether the test—if it were included—would impose any constraints that the Committee may not be aware of.

Tony McNulty (Labour, Harrow East)

On that point, yes it would, because the thrust of the amendment negates the clause. Members need to understand—as I am sure that they do—that this is not about fishing. It is not a carte-blanche—PACE and everything else aside—for the police to go fishing just because it is a terrorist case. I urge members to read the set of clauses carefully. It is about allowing seizure where there are no reasonable grounds, for a period of only up to 96 hours. The hon. and learned Member for Beaconsfield was wrong to say that there is no time limit. That period is precisely to ascertain whether the police can establish reasonable grounds, given the obscure nature of the document, to seize it in the normal legal fashion. That is all. The Committee needs to read all five interlocking clauses, which go through other points that the hon. and learned Gentleman made about copies and all the other elements, including the record of seizure and legal privilege. In that context, reinserting “reasonable grounds” would make the five clauses a nonsense and negate them entirely. This power is about the temporary removal, in these obscure situations, of reasonable suspicions, grounds for belief and the other assorted reasons why police can seize a document.

I take the point that the document could be a restaurant menu from Peshawar, al-Qaeda’s latest top 10 or something else. However, these measures are about refining and clarifying the law. I do not accept the point half made by the hon. and learned Gentleman that on reasonable grounds, the police can take whatever they like in any circumstances. We are discussing a temporary, limited power to seize documents, the origin and content of which are obscure, take them to a police station, translate them and establish whether they can appropriately be seized on reasonable grounds. I accept everything that has been said about privacy of papers.

The amendment would negate this power entirely. I say in the nicest way possible that the hon. and learned Gentleman should take the shiver out of his spine because it is not appropriate. This measure is not a sledgehammer cracking through the rule of law in any way, shape or form. He should be aware, as he clearly was not from his introduction, that there will be time limits and that clear records must be kept. Everything interlocks across the five clauses. Where appropriate, PACE and guidelines will be amended and discretion will still depend on the reasonable and temperate manner in which the police must exercise their powers.

I assure the Committee that this power is not about weakening the legal grounds for seizure, other than saying in reasonable circumstances, “We have come across certain documents. We think that they may be important to this terrorism case, but we do not know. We cannot on any reasonable grounds seize them legally. Let’s have 48 or 96 hours”—as one of the later clauses says—“to ascertain that. We can then either return them or seize them legally on grounds of reasonable suspicion.”

David Heath (Liberal Democrat, Somerton and Frome)

I agree with the Minister that changes to PACE will be needed. It will be extremely helpful to the Committee if he indicates whether he is prepared to make those changes by amendment to primary legislation in the later stages of the Bill or to publish the draft changes to the PACE code. That would give some reassurance to the Committee on the point that he has raised.

Tony McNulty (Labour, Harrow East)

That is an entirely reasonable point. Whenever leading in a Committee, I have tried to ensure that whatever hangs off the Christmas tree, such as subsequent codes of practice, guidance or statutory instruments, is made available at least in draft or outline form to the Committee. I give that undertaking. We will make clear the amendments to PACE in the way that has been done since it was introduced in 1984. I will eschew the offer of more primary legislation.

Under the PACE codes, the practice that will result from the adoption of the legislation is that the powers should be used only in efforts to locate evidence of offences connected with terrorism and officers should not remove any more material than necessary. That will limit, in this very serious area, the scope for the police to go fishing and say, “It’s in French. Get the lorry round and we’ll take the lot.” Members of the Committee have made an entirely serious point about that. With your indulgence, Mr. O’Hara, that is why subsequent clauses will put serious time limits on seizure. In the first instance that will be 48 hours and, by exception, it will be 96 hours. That is it. There will be no other extension beyond that. Quite rightly, there are clauses about how we will deal with documents that could accrue legal privilege. There must also be a very clear record of the seizure.

Given the limited time, it is not appropriate to talk about copies being left with the person whose documents are seized. The hon. and learned Gentleman’s notion that this is for however long the police want is simply erroneous if one reads the appropriate clause. There is, at least in part, the reasonable notion that this might be just another excuse to go fishing through the PACE codes. I take the point made by the hon. Member for Somerton and Frome very seriously in that regard and will seek to bring something forward, whatever else is added on to the Christmas tree, at least in summary, if not in draft and if not in full.

David Davies (Conservative, Monmouth)

The Minister is making a compelling case. What happens if those documents are written in some obscure language or some form of code that makes it difficult or impossible for the police to come to an opinion about them within the allotted period?

Tony McNulty (Labour, Harrow East)

Then we are back to the hon. and learned Gentleman’s point. If there appears to be no significant reason why they are written in some sort of cipher or encryption, we are back on the territory of routine law. If they are written in Tolkienesque runes and the guy is a plumber there might be reasonable grounds to assume that he is seeking to hide information and therefore reasonable grounds to seize them in the normal fashion. This is just about asking whether further exploration of the document, be it encoded, in a different language or in whatever form, will reveal whether it is legal for it to be seized in the normal fashion on the basis of reasonable suspicion. I think that that is eminently reasonable in that regard. I was not knocking plumbers or Tolkien when I used that example.

Adam Holloway (Conservative, Gravesham)

If one has reasonable grounds, why not seize whatever one wants?

Tony McNulty (Labour, Harrow East)

That is entirely the point. As the hon. and learned Gentleman says, very often there will be entirely reasonable grounds. But we are talking possibly about encryption and certainly about language where we think, “Hello, it’s in Arabic so it must be suspicious.” But it could be no more than the duty free list for a flight to the Gulf or the Urdu version of the menu from the restaurant round the corner, which has kindly produced its menus in Urdu as well as English. All this does is afford the police the time—48 hours—to say, “I think, but I cannot hand on heart say, with reasonable suspicion or an appropriate belief, that this document is in accord with the warrant and the grounds for the search in the first place. May I have 48 hours and no more to explore that?”

The hon. and learned Gentleman is right. It was in the 2000 Act, but only for Northern Ireland. I had a nice chat with the hon. Member for Lancaster and Wyre last night. He told me how he routinely used this law in some of the searches in a professional context. That is fair and reasonable. All we are saying is that the Government, with cross-party support, are deconstructing the entire terrorist and security legislation framework for Northern Ireland, given the peace process. But we would be remiss and irresponsible if in the course of that process with our Northern Ireland colleagues we did not ask whether there were any elements of that security framework that would be useful and efficient in our current broader threat of and fight against terrorism. This falls into that category.

Ben Wallace (Conservative, Lancaster and Wyre)

Given that the warrant itself covers the reasonable suspicion, why are we producing more and more tests within that search itself. Surely for all crimes, whether it is terrorism or not, if there is reasonable suspicion to search a property, what is wrong with getting the trucks in and going through everything?

Tony McNulty (Labour, Harrow East)

Because it relies on the word “reasonable”. Hon. Members can work this out for themselves. It is not in all circumstances reasonable to say that because the constable cannot ascertain the contents of a document for whatever reason—different language, runes, hieroglyphics or whatever—by definition it must be reasonable to seize that document lawfully. It could be an “Encyclopaedia Britannica”, but in Arabic or French rather than English. That is not meant to demean our officers: they do a splendid job, but are not multilingual.

All that this set of clauses does is set parameters within the rule of law that state that the police should be afforded at least some time—in this case, 48 hours, but that can potentially be extended to 96 hours—to explore lawfully whether there is anything in the content that might give them reasonable suspicion to seize it, and then they will keep it. If that is not the case, it should quite rightly go back. I will resist the amendment, but it has been a useful exploration of the thrust and substance behind the clause.

Dominic Grieve (Conservative, Beaconsfield)

First, I must apologise to the Minister, who is absolutely right. If he looks at amendment No. 58, which I tabled when looking at the Bill in detail last week, he will see that it deals with the length of time set out in the clause, so my apology to him is fulsome—I was in Ireland until rather late yesterday evening, so my memory of all the five clauses in my drafting last week is not as good as it should be.

The Minister makes a persuasive case on that point, and we will come back to it when we get to the relevant subsection. On the general point about reasonableness, he has provided me with considerable reassurance, and the fact that it operated in that fashion in Northern Ireland also indicates that it will not be misused. I want to reflect on this matter in view of the Minister’s comments. I can see that there remains an argument for putting reasonableness in, and I am not sure that it would have all of the downsides that the Minister is anxious about. On the other hand, I am also pretty well satisfied that what he is putting forward in this context will not do much mischief, so I beg to ask leave to withdraw the amendment.

Patrick Mercer (Conservative, Newark)

I have decided not to move amendment No. 80. When I was drafting it, I was under the impression that during my service in Northern Ireland we had three days to hold terrorist documents, but my memory is probably faulty. In view of what the Minister has said and of what is coming up in clause 5, I suspect that the amendment would be thoroughly unhelpful, unnecessary and a complete waste of time.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 52, in page 2, line 19, leave out subsection (4).

This is a probing amendment. I should be grateful if the Minister would explain the necessity of having subsection (4) in the form in which it has been placed in clause 1. I assume it is because of an anxiety, but what is the basis of that anxiety? If it were not included, the powers of seizure could not start to operate at a time when the police had subsequently decided that they wanted to seize the document.

Tony McNulty (Labour, Harrow East)

As I understand it, that is entirely the case. As I said earlier, all that clause 1 affords the constable is the power to remove the document—rather than lawfully seizing it—to another place for 48 hours, up to 96 hours, to translate it or do whatever else he needs to do with it to ascertain whether there is reasonable suspicion to seize it. Without that subsection, there is no second phase to that process. Having removed the document and established that there might be reasonable grounds for seizure, subsection (4) is necessary to allow the legal process to continue so that the seizure is lawful, as the honourable and learned Gentleman suggested. It is worth reading out, because the obscure relativism of the English is wonderful, although there are other examples in the Bill that are real peaches. It states:

“Where a document is removed under this section a constable has the same powers of seizure as if it had not been removed and any matters discovered on examination after removal had been discovered before its removal.”

That is wonderful English legalese at it best, but its import is precisely as the hon. Gentleman suggests. The 48 or 96 hours is a temporary step out from the due process, to establish whether there are reasonable grounds, etc. The seizure process needs to be ongoing, and all that subsection (4) does is to confirm that the seizure is lawful or that reasonable suspicion was not grounded and therefore the documents are to be returned. It is as simple—in its language—as that.

Dominic Grieve (Conservative, Beaconsfield)

I am most grateful to the Minister and I beg to ask leave to withdraw the amendment.

Clause 2

Tony McNulty (Labour, Harrow East)

In the context that I have described, the five clauses hang together. Clause 2 creates a new offence of wilfully obstructing a constable when he is exercising the power under clause 1 to remove documents for examination, pending lawful seizure or otherwise. That will help to ensure that the power can be used efficiently and effectively by deterring potential obstruction of the constable. It is a summary offence, punishable by up to 51 weeks’ imprisonment in England and Wales, 12 months in Scotland and six months in Northern Ireland. The sentence limit in England and Wales will be six months until section 281(5) of the Criminal Justice Act 2003 comes into force, when it will be 51 weeks. The purpose of the sentence is to act as a deterrent to obstructing the constable. The penalty for the offence is no less than that for similar offences of obstruction, for example, under section 47 of the Terrorism Act 2000 and section 26 of the Immigration Act 1971. Imposing a sentence of any longer than that would be disproportionate to the nature of the offence. It is difficult to conceive of circumstances where simply obstructing an officer removing a document could justify, say, three years or more in prison.

If the individual were involved in terrorist activity he would be charged with a terrorist offence, and if convicted dealt with appropriately for that offence. It is unlikely that a person would be charged with the lesser offence of obstructing a constable were he guilty of the more serious behaviour. If it is clear that there is no terrorist involvement, there is no reason for the individual to be treated differently from any other non-terrorist suspect. Interlocking with all the other elements of this part of the Bill, that is appropriate and proportionate.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister. I do not disagree with anything that he said. However, I wish to raise a more general point, which probably does not require to be touched on in this Bill but which I think has some bearing on the matter. The Minister has, I understand, confined obstruction to physical obstruction or attempting, I suppose, to chuck a document in the dustbin. One of the issues that we have had to consider on a number of occasions—as he is aware—is encryption keys and encrypted material. Some of the material that we are concerned with here is, or could be, encrypted material that is downloaded from a computer. I would be grateful if the Minister could tell the Committee how the law stands on that. My recollection from past debates on the subject is that there has been anxiety as to whether the penalties are stiff enough in respect of non-co-operation of that kind. That is why I tabled some amendments to the clause, although I am aware that they are totally deficient because they would require Crown court and not magistrates court procedure. While the Minister has reassured me completely regarding what I would call the old-fashioned offence of obstruction—as I think it is generally understood—I continue to be anxious that we have a proper regime in place, which provides a sufficient deterrent for somebody thinking that an easy way out is not to provide encryption keys when encrypted material has been seized.

Ben Wallace (Conservative, Lancaster and Wyre)

I want to follow on from my hon. and learned Friend the Member for Beaconsfield and ask the Minister whether he is satisfied by the severity in the clause. The consequences of obstruction during a search can be quite severe, especially the obstruction of forensic evidence. A vast proportion of terrorist cases obtain convictions on the basis of forensics, rather than other types of evidence. There are also many cases where forensic evidence fails because the evidence has been corrupted by contamination. A suspect could damage the evidence and so opt for the lesser offence of obstructing evidence, rather than that which could be proven by the forensics that they disrupt.

David Heath (Liberal Democrat, Somerton and Frome)

I do not think that I have welcomed you to the Committee, Mr. O’Hara. I have intervened, but not spoken to any proposals. The hon. and learned Member for Beaconsfield has rather elegantly interpolated an entirely spurious debate in terms of the Bill, but one that it is very important to have on counter-terrorism. As he is in order, we must be too.

The hon. and learned Gentleman asked whether the arrangements for ensuring that a key to encryption is provided are adequate. An anxiety was expressed in our evidence sessions by the Metropolitan Police Commissioner that the tariff was insufficiently high to allow for remanding a suspect in custody, rather than bail being given by a lower court. That is a genuine concern because some of us see custody as an answer if it is impossible to interpret encrypted material in the period allowed for pre-charge detention. I would be grateful for the Minister’s view on whether we are right about the ability of a court to detain somebody who wilfully withholds the key to encrypted material that might be of evidential value in a terrorism case.

Tony McNulty (Labour, Harrow East)

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.

Dominic Grieve (Conservative, Beaconsfield)

The hon. and learned Member for Medway is absolutely right. The only problem is that that is on the basis that the case comes before a court. If the only basis on which the prosecution is likely to be brought is contained in the encrypted material, the judge will not have the opportunity to coerce the defendant in that fashion.

Tony McNulty (Labour, Harrow East)

Entirely right. Far be it for me to accuse my hon. and learned Friend of spuriousness and obscurantism, when the hon. and learned Gentleman does it so eloquently. None the less, because encryption is dealt with elsewhere, I think that the obstruction offence under the clause is appropriate and proportionate. I repeat that I accept some of the concerns that hon. Members have. However, clauses 1 to 5 hang together for the limited period in question and I think that they are appropriate. Hon. Members can see how they will assist searches related to terrorism.

Clause 3

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I beg to move amendment No. 2, in page 2, line 44, at end insert—

‘(2A) Under subsection (2), it is not reasonably practicable, for the item subject to legal privilege to be separated from the rest of the document if, and only if, it is not reasonably practicable because of—

(a) the time required to determine whether an item should be seized or to separate such an item;

(b) the number of persons required to carry out that determination or separation; or

(c) the apparatus or equipment that would be necessary or appropriate to use for carrying out that determination or separation.’.

I suspect that we will highlight areas a number of times in our deliberations where different Acts operate in different ways or contain different details. This measure is a good example. All hon. Members accept how fundamental the safeguard of legally privileged documents is to our system. The amendment probes the Government on the difference between the proposals and the operation of the Criminal Justice and Police Act 2001 on the safeguards that apply to the seizure of legally privileged documents, such as the time required to determine whether an item should be seized, the number of persons that are required to carry out the determination or separation and the apparatus or equipment that is necessary or appropriate to carry it out. I want to give the Minister the opportunity to explain why those caveats are included in the 2001 Act, but not in the Bill.

David Heath (Liberal Democrat, Somerton and Frome)

Perhaps I can add a concern of mine on this issue. Far be it for me to have sleepless nights over whether the Government will fall foul of ECHR provisions, but as the Minister knows, it is possible that this part of the Bill will. [ Interruption. ] The Minister huffs and puffs and says “No,” but the Home Department has already lost a case on this specific point. It would be wise for the Home Department to at least consider the possibility that occasionally it may be wrong in advance of going before a court. He will know about Regina v. Secretary of State for the Home Department, ex parte Daly, 2001, a case about the blanket seizure of documents in the context of the Prison Service. The House of Lords unanimously held that including legally privileged documents in that was a breach of the appellant’s right under article 8(1), quite apart from other provisions. Therefore, if we can safeguard the Government’s intention in that respect while maintaining the rights of the citizen under human rights legislation, that would be to the advantage of what the Minister is trying to achieve, rather than to its detriment. The provisions will achieve very little if the first case that comes up is immediately taken to the courts as a breach of human rights legislation and the Home Department yet again loses its case.

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely with the general thrust of the points made by the hon. Members for Carshalton and Wallington and for Somerton and Frome about the importance of clause 3. If we do not get it right, I have no doubt that there will be a successful challenge under the European convention on human rights. I am not even sure whether one would even have to go to the European convention on human rights, because the principle of protection of legal privilege is so well established in common law that it would probably be feasible for the judiciary to express concern that the entire fairness of the trial process had been vitiated and thereby bring a prosecution to a close. It is very much in the Government’s interests to get that aspect of the clause correct.

I wonder whether amendment No. 56, which I tabled, does not go closer to meeting the issue that the Government have got to deal with than the approach set out in amendment No. 2. Notwithstanding the need to separate privileged and non-privileged material, the Government must ensure that there can be no contamination of the fairness of the trial process, but amendment No. 2 would provide only a series of requirements or hoops to be leapt through before one could start dealing with the material in the first place. That is not to suggest that there is anything wrong with the hon. Gentleman’s amendment, but if we were dealing, for example, with encrypted material or material that was a mixture of both privileged and non-privileged content in a documentary form—we are really talking about computerised records in this regard—it will be difficult for the requirements in amendment No. 2, such as those relating to time, to be dealt with satisfactorily. That is the point that I am putting forward, but I do think that that is a real issue. I look forward to hearing the Minister’s response to amendment No. 2 and, in due course, amendment No. 56.

Tony McNulty (Labour, Harrow East)

First, I can assure the hon. Member for Somerton and Frome that although I might have either huffed or puffed on his point about the ECHR, I did not huff and puff. The points that he made are important, as indeed are those that were just made by the hon. and learned Member for Beaconsfield. I do not take issue with the import of what they suggest, but those matters are better dealt with through amendments to PACE code B. We want to consider placing the criteria for seized material as an example of some of the things that might be considered when dealing with removed material, but that is better done in the PACE codes than on the face of the Bill. That is certainly the case with regard to the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

I am curious to know why the contrary view was held in the case of the Criminal Justice and Police Act 2001, when it was felt appropriate to put those safeguards on the face of that Bill, rather than in PACE.

Tony McNulty (Labour, Harrow East)

In this case, I have been advised that they are more appropriately dealt with in PACE code B. Before the hon. Gentleman intervened, I was going to say that although I am not happy with the substance of the hon. Gentleman’s amendment—I think that it is better done in PACE code B—there might be a case for looking in more detail at his amendment, so as to get the import and principle of the notion either on the face of the Bill or in the codes. I accept the starting premise that it goes somewhere. I am not convinced that the PACE codes are the appropriate place for it; I know that that is different from the 2001 Act. I take very seriously the points made about the import of legally privileged documentation.

That is not to say that I am rash enough at this stage to resist the amendment of the hon. Member for Carshalton and Wallington and accept the amendment of the hon. and learned Member for Beaconsfield. I assure the Committee that I will take away and consider the thrust of the subsequent amendment because the matter is so important. I think that the issue should be covered in an amendment to the codes and that it should be looked at in some detail to establish the parameters. In the case of the searches, I am not inclined prescriptively to limit in the Bill—in the way suggested by the amendment—the ability to search and seize in what is, in these five clauses, speculative activity. “I think that I might have reasonable grounds to seize this document” is the thrust of our deliberations. In that spirit, I resist the hon. Gentleman’s amendment—not because he is a Liberal but because of the nature of the amendment—and ask to take back and consider, if the Committee allows me, the thrust of the next amendment from the hon. and learned Member for Beaconsfield.

David Heath (Liberal Democrat, Somerton and Frome)

Before the hon. and learned Gentleman concludes, I think that what I heard him say was that he accepted the principle of what we were saying, but he does not believe that it should be in the Bill, but in PACE. If that is the case, it is hard to see why what he describes as the limiting effect of our amendment in the Bill will be any less limiting if it were in the PACE codes of conduct instead. That does not seem to make sense to me. If he accepts that there is a rationale for being very circumspect about the use of the powers—and I think that he does accept that and he is right to do so because it might help to avoid subsequent litigation through ECHR—what is the substantive difference? He is perfectly entitled to say that the Government have changed their minds since 2001 and think that it would be better to put it in PACE rather than in the Bill, but not to say that that would have a different effect.

Tony McNulty (Labour, Harrow East)

No. Most insults roll off my back, but I will not be accused of being learned. Being accused of being a lawyer—

David Heath (Liberal Democrat, Somerton and Frome)

I apologise unreservedly.

Tony McNulty (Labour, Harrow East)

Thank you. I repeat that in this case, in the context of these five clauses—I am not talking about a general parallel between this and the other legislation—it would be unduly prescriptive to define the parameters in the Bill in the way in which the amendment does. That is why I was trying to establish the distinction between this amendment and the subsequent one that raises the broad principle, which I endorse. I will seek to return to the Committee to say whether the issue would be more appropriately placed in amendments to the code or in an amendment on Report because the thrust is on the principle. The parameters suggested in the amendment, while going to the point of principle that we all share, are unduly prescriptive in a search activity that potentially is more speculative than otherwise would be the case given what we have already discussed as grounds of reasonable suspicion. Remember, even in the context of privileged documents, we are talking about seizing documents for a very limited time to establish their import and substance and whether it is appropriate and lawful to seize them in the normal fashion having established what the contents are. So, it is slightly narrower than the broader face of things in the other legislation. That is how one is able to agree the principle but not the prescription and solution to the principle in this law. Not unnaturally, I favour my solution. I favour the solution of the hon. Member for Carshalton and Wallington, given that we all agree with the initial principle, less than the solution of the hon. and learned Member for Beaconsfield. I have said, in the emollient spirit that I come to this Committee with, that I shall look in more detail at the one I favour second to my own—that of the hon. Member for Carshalton and Wallington—and I shall not entertain at all that of the hon. and learned Gentleman, not for partisan reasons but for the reasons I have outlined. With your indulgence, Mr. O’Hara, because we have effectively had the debate about the next amendment, for which I apologise, I shall resist the hon. Gentleman’s amendment.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I have listened carefully to the Minister. I acknowledge his emollience. Clearly on these Benches we want to achieve the same end. If that end can equally be achieved through amendment No. 56, we will not insist on our amendment being adopted. The Minister indicated flexibility and perhaps when we get on to a fuller debate about amendment No. 56 he can explain how he will give consideration to what is contained in that amendment and over what sort of time scale so that we can be better informed about how he will take the matter forward. I beg to ask leave to withdraw the amendment.

Edward O'Hara (Labour, Knowsley South)

There has been much allusion to although not yet debate on the next amendment. I now wish that I had grouped them.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 56, in page 3, line 12, at end insert—

‘( ) Where an item subject to legal privilege is removed under subsection (2) or retained under subsection (4) its examination must take place in circumstances where its contents are not revealed to any person other than that examining the item for the purposes of separating such part of the document that is not subject to legal privilege from such part that is so subject.’.

We have indeed already touched on amendment No. 56, but I should like to say a few words more about it. I am helped by the fact that the Minister has already raised one or two of his concerns. Granted that there was once a power in this area concerning Northern Ireland, we are nevertheless legislating in a new field. The Minister has acknowledged that the power is a general power for the seizure of documents. We have discussed reasonableness. The Minister has made quite a persuasive case why reasonableness should not come into the picture. So the possibility of legally privileged material being picked up in the course of this type of investigation must be real. If so, my personal view is that simply to leave it to PACE codes is perhaps not adequate.

We need to put in the Bill how the material is to be handled. The Minister acknowledged in his responses on amendment No. 2 that if he gets this wrong, the consequences for a potential prosecution of an individual for a terrorist offence could be catastrophic. That is not in his or the prosecutor’s interests at all. We need reassurance about what will happen if a document that appears to contain legally privileged material is to be separated from a document which may, or is thought to, contain material that might be used in evidence in a case against the individual as a potential terrorist or one involved with terrorism, or indeed for any other purpose of apprehending terrorists. We need to be reassured that the one will not contaminate the other.

I am perfectly alive to the reality of how criminal investigations are carried out. I was a prosecutor and I did a great deal of prosecution work. I have worked with police and Customs and Excise prosecuting teams. Unless a special provision is made, there is a risk of the officers in the case becoming aware of the content of the legally privileged material that they have seized unless the message is rammed home to them that it has to be treated in an entirely separate fashion. The consequences of that are really serious. That is why we need to make special provision for the possibility that legally privileged material is seized and that a separate department deals with it at that stage. Effective Chinese walls will be required to ensure that the contents of that material are never revealed to those who are carrying out the investigation.

That is the point. If we get it right, it will allow the system to work successfully and avoid the challenges that I can all too easily imagine being mounted in a criminal trial. If we get it wrong, there will be endless scope for lawyers’ points to be made and the risk of a finding of infringement of the ECHR or of trials collapsing. We cannot speculate on the endless possibilities of what legally privileged material might be found and what it might be about.

For those reasons, I urge the Minister to accept amendment No. 56, or at least to assure us that there will be something on the matter in the Bill rather than in the PACE provisions. Simply having it in PACE is not enough, in view of the wide power to seize documents that we are conferring on the police. I hope that the Minister responds positively. I shall listen to what he says, but to encourage him, I think that I might be minded to press the amendment to the vote.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Having listened carefully to the debate, I do not think that there is a great deal between the Minister and the hon. and learned Member for Beaconsfield. Amendment No. 56 would improve the Bill and ensure that the Government’s intents and purposes are more fireproof to challenges from human rights legislation. Crucially, it would prevent a trial from being vitiated or collapsing because legally privileged material has seeped out. I hear what the Minister says, but the amendment would undoubtedly improve the Bill.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I rise to say simply that if the hon. and learned Member for Beaconsfield is not sufficiently satisfied with the Minister’s response, he will have our support if the amendment is pressed to a vote. The issue is fundamental. I hope that the Minister is about to satisfy us by saying how he will take it forward, and that a vote will not be necessary. If it is, we will be there.

Tony McNulty (Labour, Harrow East)

I have made it clear—in the last debate rather than this one, for which I apologise again—that I think that the matter can be adequately covered in the PACE codes. However, I heard what the hon. and learned Member for Beaconsfield said, and I think that I alluded to the fact that I was almost with him before he spoke. So I shall vote with him, too. [Laughter.] No, not really.

I start from the principle of being convinced that the PACE codes are appropriate. I would resist over-prescription, as I did in relation to the previous amendment, but I accept that this matter is important. I have made it clear that some elements of the amendment are not terribly useful, such as the implication that one and only one person would be able to examine a privileged document and could not secure any assistance. That might not be the intention, but it appears to mean that the only person who could see the legally privileged material would be the officer deciding whether it would be reasonably practicable to separate it from non-legally privileged material. However, by that stage the document would have been removed or retained, and the decision that it was not reasonably practicable to make the separation already made.

There are some difficulties with the amendment, but given what the Committee has said, I am happy to take back my position about suitably amending the PACE codes, consider the import of what the hon. and learned Gentleman said about having a safeguard in the Bill, and make an appropriate suggestion on Report that will hopefully satisfy hon. Members. As the hon. Member for Meirionnydd Nant Conwy said, there is not a lot between us, but even if I suddenly have a Pauline conversion and accept the thrust of the amendment, which I may, I certainly do not accept its wording, for the reasons that I have given. However, I shall give it further consideration. I am very open either to putting a safeguard in the Bill or making it much clearer why the PACE codes are appropriate. It is not a contentious issue, and I think that we agree on the broad principles, so let us see where we can go from here. Before Report, I would be happy to make as clear as I can what I think the solution is. It will follow the premise of making amendments, where appropriate, to the codes or at least to the framework of SIs. I always try to do that when I lead on a Bill. So, in that spirit, in the light of the further work to which I referred and my promise to discuss the matter in more detail on Report, I ask that the amendment be withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

The Minister raised a point about whether my amendment would confine the revelation of the contents to one person only. That was not the intention and nor do I think that it is what would be achieved—we are in danger of straying into matters of arcane drafting here. The intention—this is what I think would be achieved—was to confine such revelation to anyone involved specifically in the task of separating out the two documents. It would prohibit any contents subject to legal privilege from being revealed to anyone other than those specialists carrying out that work.

If the Minister was a bit bolder, he could accept the amendment, because he could always amend it again on Report if he wanted to. If he could give me a categorical assurance that he will amend the Bill itself, rather than adopting any other approach, I would not press the amendment to a vote. However, I detect—I do not criticise him for this—that he wishes to keep open the option of amending the PACE codes, which I think is insufficient. Without wishing to be confrontational, at this stage the Committee might like sensibly to register its view, which could provide an incentive for the Government to do what we would like.

Tony McNulty (Labour, Harrow East)

I take the hon. and learned Gentleman’s point about the intended thrust of the amendment. If, on further examination, it turns out that the thrust and the spirit of the amendment would be the same as its actual effect, I could be bolder. However, at the moment, I do not know whether that is the case, which is why I am resisting the amendment. I am not splitting hairs and it is not arcane to suggest that the amendment could be read as I alluded to. We could find ourselves in a strange situation if the Committee votes down the amendment. I might make further inquiries and decide, “Oh my Lord! The hon. and learned Gentleman was entirely right”, but I could not bring it back on Report—[Interruption.] Correct me if I am wrong, Mr. O’Hara, but I cannot bring back exactly the same words on Report that have been defeated in Committee. That is not my rule, but a rule of this House. In that context, I resist the amendment.

Crispin Blunt (Conservative, Reigate)

On a point of order, in order to be absolutely clear about procedure—this is important—if the amendment was accepted and then, on examination by the Government, found to be deficient for reasons that currently escape us, it could be removed on Report by the House or amended to ensure that it is satisfactory. Given the situation on which we have agreed, the amendment ought to be accepted.

Edward O'Hara (Labour, Knowsley South)

On Report, the clause, as amended, could be subject to debate, defeat or amendment.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful for that clarification. The Minister keeps referring to me very politely as “the hon. and learned Gentleman”. I am just getting used to that concept, but the first thing that I have discovered in that new category is the amount that one does not know, so I am always prepared to accept his comments about how the clause might be improved. However, I would like to press him a little further: if there is an assurance that we will have such a clause in the Bill, I shall not press the amendment, but without that assurance, I shall do so. That is how I shall leave the matter. If he does not respond, I shall take it that it ought to be pressed to the vote.

Tony McNulty (Labour, Harrow East)

Despite that stunning victory, I will still take back the principle of what the hon. and learned Member for Beaconsfield suggested regarding whether to establish more firmly why the matter should go in the PACE codes, or come back with some formulation of words for the Bill that captures the import of what he suggests. I have established, rightly, I think, that, for at least the reason that I outlined—and the other that the horse had bolted and was long gone from the stable by the time of the thrust of the last amendment—it is not practical in the first instance to remove the legally privileged element. None the less, I will take that back to consider whether some other formulation captures it or might link the Bill more strongly with the code. Therefore, despite the stunning victory, the import and thrust of the debate is not lost, because it will potentially enhance the import of clause 3, which I urge the Committee to allow to stand part.

Dominic Grieve (Conservative, Beaconsfield)

I am most grateful to the Minister for his comments and I take them in good part. I am not concerned by my lack of a stunning victory because, in the light of the Minister’s comments, if I return to the matter on Report and he has not produced an amendment of his own, I shall alter amendment No. 56 to reflect his sensible points. Clearly, however, it will remain a live issue and we have to resolve it satisfactorily. It will be much better that we do that in the Commons rather than ending up relying on the other place to do it for us.

Tony McNulty (Labour, Harrow East)

Ah, a threat.

Dominic Grieve (Conservative, Beaconsfield)

It is not a threat; it is a plea to the Minister. It is a fact. I despair that Bills go through this House, end up in a state that I consider to be unsatisfactory and have to be put right elsewhere. It seems to me that we should be capable of passing Bills to the other place in such good condition, particularly on issues of this sort, that the other place does not have to worry about them. Subject to that, I have no further remarks on the clause.

Clause 4

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 81, in clause 4, page 3, line 23, leave out from ‘removal’ to end and insert ‘within 24 hours’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss amendment No. 58, in clause 4, page 4, line 11, at end add

‘and in any event within six hours’.

Dominic Grieve (Conservative, Beaconsfield)

I apologise on behalf of my hon. Friend the Member for Newark, who has had to leave to attend a funeral. Although the amendment also stands in my name, it was tabled by him.

We come to the issue of the records of removal that we touched on when discussing clause 1. The Minister pointed out that the provisions were relevant to the remarks made about that clause, for which I apologised to him.

My hon. Friend raises the concern about whether a time limit within which the written record should be produced should be inserted into the Bill. The current wording is “reasonably practicable”, which I simply say would often be within a much shorter period than 24 hours. If a police officer is doing his job properly, a written record should be made contemporaneously with the work. I would regard that as good police practice. Equally, it is not necessarily a bad practice to provide a finite limit. I acknowledge that the way in which the amendment has been drafted removes the reasonable practicability test and replaces it with “24 hours”. A possible approach would be to add “and in any event within 24 hours.” I therefore simply throw this in as a probing amendment to ask the Minister whether, despite the reasonable practicability test, there should be a finite time limit within which a record should be produced.

Amendment No. 58 concerns the copy that must be provided within a reasonable time. That brings me back to my concern in relation to clause 1 that a reasonable time should be a very short time indeed, because of my anxiety about the consequences for an individual who loses control of a document that might be of great utility to him. Unlike the seizure of material when the police are satisfied of a suspicion that there is a terrorist purpose and that there is good reason for not allowing the person to keep a copy, we are dealing with situations in which no such imputation of wrongdoing might arise. I wonder what is considered to be a reasonable time. My anxiety is that we could end up with court challenges if the police hold on to material and give assurances that they will produce copies, but try to wriggle out of doing so because they are concerned that the document might turn out to be capable of being used for a criminal purpose.

I tabled amendment No. 58 because the clause raises a difficult issue and I want to tease it out. If there is nothing criminal on the face of a document, but the police want to take it away and look at it, the basic rule ought to be that there are no grounds for not supplying a copy immediately so that the person is not placed at a disadvantage by not having it. It is only at the point of seizure that the issue of depriving somebody of the possession of such a document arises. To what extent will the reasonableness test be used as an excuse to ensure that a person does not have a document until the reverse burden of proof has operated to show that it is completely innocent?

David Heath (Liberal Democrat, Somerton and Frome)

I entirely support the intention of the two amendments in the names of the hon. and learned Member for Beaconsfield and the hon. Member for Newark. I agree, however, that amendment No. 81 would increase the time available to a constable, in normal practice, to make his record, which cannot be the proper intention. I am grateful to the hon. and learned Gentleman for accepting that. As the Bill says, it should be done,

“as soon as is reasonably practicable”,

but it might be sensible to have an outer limit as to what is reasonably practicable, for the avoidance of doubt. Having said that, I am worried that any time limit will be interpreted as a prescription for how long it should be, rather than as an outer limit. Therefore, it would be more helpful for the Minister to indicate his expectation in terms of police practice, and his interpretation of “reasonably practicable” in such circumstances.

Tony McNulty (Labour, Harrow East)

I would interpret “reasonably practicable” as meaning as practicable a time as is reasonable.

I knew that, if I remained emollient all day, hon. Members would soften me up in the end. I agree broadly with what the hon. and learned Member for Beaconsfield says. If I thought that the amendment was seeking to restrict, in any fashion, the time that the police had, rather than at least give us a benchmark to the effect that any reasonable person would determine “reasonably practicable” to mean “within 24 hours”—that is a fair point—I would be a feeble Minister captured by the lawyers and officials, obliged to ask that we stay within the notion of

“as soon as is reasonably practicable”.

I would do so if it made sense, but it does not. So we will have that one—we will accept amendment No. 81 because it is perfectly reasonable: one-nil to the hon. and learned Gentleman.

I must resist the second amendment, however, because I think there is confusion. It is not about a copy of the document, but about a copy of the record of the seizure of the document. The hon. and learned Gentleman’s points on the import of the document to the individual and on the notion that, in the first instance at least, there is no criminal dimension afforded to it at all—we are talking about 48 or 96 hours, during which it can be established whether it is reasonable to take things on the ground of reasonable suspicion, and so on—are covered by clause 6. That clause allows access to the taken documents—I use “taken” specifically to avoid confusion with seized documents—if they are as important as he suggests.

Dominic Grieve (Conservative, Beaconsfield)

The Minister makes a valid point, but I am not sure that we are talking about the same thing: one is the document and the other is a copy of the document. I realise that, in many cases, having a copy of a document is as good as having the document itself, and I can see that it is easy to blur the two concepts. However, the fact that the Government draftsman has treated a copy in record of removal separately from access to documents makes me think that two separate issues can arise here. The purpose of access to a document may entirely different from the purpose of having a copy of a document. I assume that if the Government had not intended that, they would have run the two things together. That is why I treated the copy as a separate, distinct issue from having access to the document itself.

David Heath (Liberal Democrat, Somerton and Frome)

I thought that the hon. and learned Gentleman was making an intervention, which is why I did not want to intervene on him. [Interruption.] If he is making a speech, I will intervene. I seek your guidance, Mr. O’Hara.

Dominic Grieve (Conservative, Beaconsfield)

I apologise, Mr. O’Hara. The hon. Gentleman is quite right that the informality of our Committee procedure is leading me astray. It is time that I sat down.

Tony McNulty (Labour, Harrow East)

Therefore, in conclusion, that is why I would urge resistance to amendment No. 58.

David Heath (Liberal Democrat, Somerton and Frome)

There seems to be some degree of confusion in this debate, when we start talking about documents and copies of documents. What I had understood us to be talking about here is not the copy of any document, but simply the copy of the record that documents had been taken, which is a quite different matter. It seems to me that the Committee is getting confused if it considers the matter in a different way. Does the Minister agree?

Tony McNulty (Labour, Harrow East)

Of course I agree, having just made that point myself when I was intervened upon at length. In that context, it is entirely reasonable, as the element that we seek to amend suggests, that the constable must provide the copy

“within a reasonable time from the making of the request.”

Again, I think that that provision is entirely appropriate. As the hon. and learned Member for Beaconsfield was in part suggesting, I would have thought that good police practice would be that that copy of a record of the seizure would be forthcoming as quickly as possible. Given the nature of the timing, I would absolutely resist a provision that it be provided within six hours because I do not want—this is important for the individual concerned—a situation where six hours becomes the norm, when the copy of the record of seizure might be very important for the individual to carry on his normal, lawful business. I would resist that proposed change, because the notion that provision within six hours may well become the norm rather than contemporaneous or more instant, as the clause suggests, is more than appropriate.

We will accept amendment No. 81, as it is entirely reasonable. However, I ask the Committee to resist amendment No. 58 and all that it suggests about the copy of the record and not the copy of the document.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Perhaps this is not the right occasion, but I was hoping that the Minister might be able to provide us with a little more detail about what the record must contain. I know that some detail is set out in clause 4, but I would like to know more about subsection (2)(a), which says the record must “describe the document”. At some point in the future, will there perhaps be a little more detailed explanation of the depth that that description of the document will go into? I ask that because, clearly, the document could be a large file with 1,000 pages in, which requires description in full, or there could be descriptions of the sections of documents, or the different types of documents contained within a folder.

Tony McNulty (Labour, Harrow East)

As I understand it, “describe the document” is an appropriate way of laying out the record, because that would cover, as we have suggested throughout our debate, a multitude of sins. “Describe the document” would cover a description of the document sufficient so that both the police officer who seized it and the person whose document it was recognise that that is the document that they are talking about, which is entirely reasonable. When seen in the context of all the other elements of the record, it is an appropriate record of the withdrawal of the document.

Remember too that the measure deals with the removal of a document for a short period of time to establish whether there is indeed reasonable suspicion to seize it lawfully. In that context, this is an appropriate record. I would resist any attempt to restrain, codify or prescribe what the description should be, but it should clearly be a description that both the police officer and the person whose document it is understand and recognise as an appropriate description of the document.

Where are we now?

Edward O'Hara (Labour, Knowsley South)

I am trying to distinguish whether the Minister is accepting amendment No. 58 or amendment No. 81. However, I understand that the situation is that I invited questions to be put on amendment No. 81. So, are you going to push it to the vote?

Dominic Grieve (Conservative, Beaconsfield)

If I understood correctly, the Minister is accepting amendment No. 81.

Edward O'Hara (Labour, Knowsley South)

The question must be put formally.

Dominic Grieve (Conservative, Beaconsfield)

It may appear remarkably curmudgeonly on my part not to accept the Minister’s largesse. May I explain that the amendment had originally been tabled by my hon. Friend the Member for Newark? I indicated when I opened the debate that I thought it had a potential flaw. On the whole, I would have preferred the wording to be “as soon as reasonably practicable, and in any event within 24 hours”. As I indicated, I would normally have assumed that good police practice would be to write out a list and hand it to the person as they were leaving the premises. Anything that suggested otherwise might send out a rather odd message.

Therefore, although I wanted a finite period for the reasonable practicability, I do not think that simply putting down 24 hours and thus encouraging the police to say, “The rules say that you can have it in 23 hours’ time,” is very good. I apologise to the Minister and the Committee. Perhaps this is illustrative of the fact that I regret that my hon. Friend is not present. However, if the Minister were to say that he would table an amendment on the basis of “reasonable practicability, and in any event within 24 hours”, I would give him a hug at the end of the sitting.

Tony McNulty (Labour, Harrow East)

I do not want the hug, but I accept that there is a midway position between what is already in the Bill and just “24 hours”. In all fairness, it would be a better place in legislative terms than where we are now. Therefore, on the premise that I do not get the hug, I would be happy to come back with something that hits both elements. I ask the hon. Gentleman to withdraw the amendment.

Edward O'Hara (Labour, Knowsley South)

That is very helpful.

Dominic Grieve (Conservative, Beaconsfield)

I am delighted, and I thank the Minister. In the light of that, he will not be surprised to learn that I shall not press amendment No. 58 to a vote. I beg to ask leave to withdraw the amendment.

Tony McNulty (Labour, Harrow East)

I beg to move amendment No. 73, in clause 4, page 3, line 41, leave out subsection (3) and insert—

‘( ) If, in a case where the document was found in the course of a search of a person, the constable does not know the person’s name, the record must include a description of the person.

( ) If, in a case where the document was found in the course of a search of any premises, the constable does not know the name of a person mentioned in subsection (2)(e) but is able to provide a description of that person, the record must include such a description.’.

Clause 4 requires a record to be made of the removal of a document, specifies the contents of the record and allows specified persons to request a copy of it. This is one of the safeguards attached to the power conferred by clause 1, which introduces a new power for the police to remove a document for examination during the course of a specified terrorism-related search to ascertain whether it is one that can be seized.

This minor Government amendment—I know that there are shivers and bristles all round when a Minister says, “This is a minor amendment, a technicality. Don’t worry about it.”—has the effect of requiring the officer to describe the owner or occupier of the premises searched, or the person searched, if he is able to do so. As currently drafted, the clause says that a description must be given irrespective of the officer’s ability to do so, and that the record of removal of a document must state the name of the person, if known, who is or appears to be the owner or occupier of the premises searched, and the name of any person who appears to have custody of the document. If the constable does not know the name, subsection (3) requires him to include a description of the person. The amendment means that if the constable cannot give a description of a person, he does not have to give one. It would cover, for example, the search of premises where the owner or occupier is not present.

In this case, at least, the amendment really is a minor matter. It simply tidies up the clause rather than otherwise, and I commend it wholeheartedly to the Committee.

Dominic Grieve (Conservative, Beaconsfield)

The amendment seems to me to be very sensible.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I echo that point.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The Minister is right in saying that the clause needs amending. In fact, it could have been fatal to the prosecution if it were not amended in this way.

David Heath (Liberal Democrat, Somerton and Frome)

I want to explore a little more the point made by my hon. Friend the Member for Carshalton and Wallington. I entirely accept that the Minister does not want to prescribe in precise detail how the record of the document seized is put together, but what is the consequence if the record is misleading or incorrect? What if it omits documents that have been seized or wrongly describes them for the purpose of the record which, after all, is what the potential defendant—they are not accused at this point—from whom the seizure has been made relies on to ensure both that he knows what documents have been seized and what documents should be returned to him.

I am not sure what the answer might be, but does it invalidate the terms of the original warrant if the description is incomplete or incorrect? What if, for instance, a constable mistakes a document in one language for a document in another and puts the wrong description on it? That is quite possible if he is not familiar with the languages. One of the main reasons for removing the documents may well be that he or she cannot read them. What would be the consequences if a record of seizure is incorrectly made out?

Tony McNulty (Labour, Harrow East)

Unless I am corrected, I think that the point is moot. First, once the process has finished, either the document will be an entirely innocent one that was not properly seized in the first place and so it will be returned forthwith to its owner, which is what these two days about; or it will be a document that has been appropriately seized and it will then be logged in far more detail in the appropriate fashion to secure the potential evidentiary trail. If either of those two occurs, the hon. Gentleman’s concern falls or is redundant.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

The Minister is absolutely correct. The point at issue is the continuity of evidence—the trail. That has to be accurate in order to found any prosecution in due course.

Tony McNulty (Labour, Harrow East)

Yes, to pursue the hon. Gentleman’s example, if the document is in Farsi but it has been wrongly ascribed as Urdu, and upon further investigation it is seen to be the Peshawar restaurant menu and it is returned to its owner without further concern or disruption, so be it. If it turns out to be a key al-Qaeda document and the Farsi expert brought in had some difficulty but soon established that it was not Farsi but Urdu, and once it was finally translated it was found to be a document that was more than appropriately seized, then it would be logged in the evidentiary chain and the case would be built up or otherwise.

I do not think that this is a concern. There would be more concern if, as the hon. Member for Carshalton and Wallington said, we over-prescribed on the Bill what the description should be. Even in that case, given that this is but part of a process to establish whether it is lawful to take the document, I do not think that the hon. Gentleman’s concerns are justified or should cause him to lose any sleep.

Clause 5

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I beg to move amendment No. 4, in clause 5, page 4, line 22, at end insert

‘, provided that he has satisfied himself that the provisions of sections 1 to 5 have been properly met.’.

The amendment is probing. We may touch on some of the ground that my hon. Friend the Member for Somerton and Frome, taking the example of a misleading record. We are trying to establish whether there is any bar in place to stop a 48-hour extension being sought if there are any breaches of the recording procedure during the original 48 hours after a document has been taken away to be considered. That could include how the document has been handled, or a privileged document being looked at by somebody who is not party to assessing whether the document is relevant.

The amendment would ensure that everything is done by the book in the first 48 hours, as one would expect. It would give the additional pressure or encouragement of the sanction that if there had been a clear breach, such as many significant mistakes in the record of removal, the extension would not be allowed. I hope that the Minister will consider the amendment and go into greater detail about how this measure will operate, such as whether there are safeguards for the first 48-hour period or sanctions if the rules are clearly breached.

Tony McNulty (Labour, Harrow East)

I take the amendment in the spirit that it is offered. It is deficient for a reason that I will come to later. Even though we are talking about a mere 48 hours, these are important matters. I have some sympathy with the idea that it should be in the Bill that an officer from inspector upwards must clear in his or her own mind that the criteria and safeguards implicit in clauses 1, 3 and 4 have been adhered to. However, I cannot accept the amendment because I see no reason why the provisions of clause 2 on obstruction should form part of that assessment. The issue of obstruction is entirely separate, for reasons that we have discussed.

That it should be in the Bill that an officer at the rank of inspector or above should make it clear whether the provisions of clause 1, the implications for legal privilege in clause 3 and the requirements for the record of removal in clause 4 have all been followed in an appropriate fashion as part of his determination of whether there should be an extension is a fair and reasonable point. I will look at that and come back to it on Report.

I am sure that the notion that the inspector should consider in full whether there has been a crime of obstruction in that process was an inadvertent drafting error, but for that reason I cannot accept the text of the amendment. I am happy to take away its spirit and see if we can put the safeguards implied in clauses 1, 3 and 4 in the Bill as part of those criteria. That is entirely reasonable. With that assurance, I ask the hon. Gentleman to withdraw the amendment.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

In spite of his gruff appearance, the Minister has once again demonstrated emollience. I acknowledge the drafting error in the amendment. The Minister has correctly identified that the Committee should be concerned with only clauses 1, 3 and 4, but he has responded very positively. I beg to ask leave to withdraw the amendment.

Clause 6

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 82, in clause 6, page 5, line 2, leave out paragraph (b).

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss amendment No. 83, in clause 6, page 5, line 5, leave out paragraph (d).

Dominic Grieve (Conservative, Beaconsfield)

These are probing amendments so that we can tease through what the clause provides for. Perhaps I can come back to what I said a moment ago when I was getting befuddled about the question of the copying of documents. The matter concerns me and I have been raising it as a recurrent theme throughout the morning. I think that this is now the right time to discuss it.

In clause 6, provision is made for a person to have access to the seized documents. It is obviously an important principle because those documents belong to the individual concerned. I can envisage that there may be circumstances in which, although the seizure of the documents may not yet have taken place, the police’s suspicion that the documents are terrorist related is such that they may be reluctant even to allow the person to have access to them. As I understand it, the architecture of clause 6 and its subsections is to provide circumstances in which access can be denied.

I want to highlight a few points. If the person involved is not under investigation for any offence, what is subsection (3)(b) aimed at? One would expect the measure to be covered by subsection (3)(d), which is deals with facilitating the commission of an offence. That is really the nub of the two amendments.

Perhaps I could flag up something else for the Minister to explain. Access to a document may be required for different purposes. What is envisaged by the word “access” in that context? Does it mean that one may go and look at the document; that one may, if it is possible, photocopy the document so that one can use the copy even though the original might be retained; or simply, that one may go and look at it behind a glass screen so that one can see that it is still there?

There is a lack of clarity in clause 6, which is not tackled by my amendments. Perhaps we could deal with that in clause stand part, or, if we want to avoid a stand part debate, we could deal with it here. Talking about the rights of access brings me back to one of my earlier points. In many cases, a person may be completely comfortable—or may not make a big fuss—when a document is taken away as long as they have a copy from which they can work. As far as I can see, I do not think that there is a provision that allows the person to have a copy even if the original has to be retained, but I may be wrong about that. Will the Minister take the opportunity to deal with those points?

Tony McNulty (Labour, Harrow East)

As the hon. and learned Member for Beaconsfield suggests, it might be worth exploring the broader issues here rather than at stand part.

Edward O'Hara (Labour, Knowsley South)

Order. Once again, I rule that the clause stand part debate is grouped with the debate on this clause.

Tony McNulty (Labour, Harrow East)

Thank you, Mr. O’Hara.

Clause 6 makes provision for certain persons to have access to documents removed for examination under clause 1. Although removal of a document for a period of up to 96 hours may have little or no impact on some, I recognise the point that, for others, the document concerned may relate to important business, family or other matters. I think that that is perfectly reasonable, which is why clause 6 provides for the right to supervise the access. It is made clearer in the explanatory note, which says:

“Clause 6 allows a person referred to in subsection (2) to have access, on request, to a document retained under the provisions of clause 1, under the supervision of a constable.”

The hon. and learned Gentleman is entirely right that the measure is not about affording a photocopy or other copy of the document, but about access other than in relatively, but reasonably, limited circumstances. I understand the spirit of the amendments, which are rightly intended to seek clarification on the functionality and purpose of an important safeguard.

It is important that access is not granted if the officer in charge of an investigation has reasonable grounds for believing that it would prejudice criminal investigations or proceedings, or that it is sought for a nefarious purpose such as to interfere with a prompt and effective investigation into terrorism-related offences or to facilitate further offending. As the hon. and learned Gentleman implied, the amendments are intended to limit the circumstances in which access can be refused. Their result would be to enable access that might hinder investigations into criminal offences already committed or facilitate the commission of new offences.

I consider that each of the reasons for limiting access set out in clause 6(3) is required. Subsection (3)(a)(i) is required to cover the original investigation, for example a search under proposed new section 7A of the Prevention of Terrorism Act 2005, conducted to see whether a person subject to a control order has absconded. Subsection (3)(a)(ii) covers the investigation of the document in question, so that access may be refused if, for example, it would prejudice the process of examination by slowing it down and taking it outside the time scales for retention—48 hours in the first instance, or 96 hours ultimately.

Subsection (3)(b) covers matters relating to the investigation of an offence, such as if it were thought that access would tip someone off about the documentation seized, meaning that other evidence of the offence could be covered up. Subsection (3)(c) covers the prejudice of criminal proceedings, the justification for which speaks for itself. Subsection (3)(d) covers matters related to the facilitation of an offence, for example access to a document that might contain information about potential terrorist targets.

As the Committee will know, similar restrictions on access to documents seized are provided in section 21(8) of the Police and Criminal Evidence Act 1984, on the prejudice of investigations or criminal proceedings. I accept the notion that, even with clause 1 agreed to, we are still in a twilight zone of establishing whether it is appropriate to seize the documents in question in the first place. We need to be mindful of that, even in the context of restrictions of the right to access, albeit supervised. I take the thrust of what is suggested in the amendments, but to lose subsections (3)(b) and (3)(d) would be disadvantageous to the intention of the Bill. I therefore ask that the amendments be withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his explanations and accept them entirely. I can see that the amendments could have the consequences that he has described. I am grateful to him also for having outlined a little more clearly how the clause is designed to operate.

I know that we will consider an amendment on appeals in a moment, but perhaps this is an appropriate moment to return to the generality of the clause, which is whether an express provision should be made so that, for example, the police might provide a photocopy of a document that somebody needed. I appreciate that that might be a very rare occurrence, partly because of the very short period of time involved, but it troubles me slightly. There must be a potential risk that the police will inadvertently seize a document that is required the following morning for a pressing legal reason. Such things can happen.

One possibility is to allow for discretion to provide copies, but obviously only if the police were satisfied that that would not conflict with any provision of subsection (3). The second, which I shall come to in relation to the next amendment, is to have a mechanism to provide for an appeal if there are urgent grounds for challenging the retention of documents for a short period of time, or if there is a pressing need for a document. I simply throw that in as something that the Minister may like to consider before Report.

Tony McNulty (Labour, Harrow East)

We will come to amendment No. 59 in due course, but I will give that undertaking in the context of amendments Nos. 82 and 83, which dilute the provisions that the police need as a backstop. I will explore, unhappily not at the moment although I would like to, the notion of some general—albeit discretionary in the context of clause 6(3)—provision for the photocopying of documents where practicable. I say that in the context of our discussion about what a document is: a copy might take more than the 40 or 96 hours prescribed by this part of the Bill. In that spirit, however, I repeat that all elements of clause 6(3) are necessary to do that with confidence.

Dominic Grieve (Conservative, Beaconsfield)

I entirely accept that. They were probing amendments. I beg to ask leave to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 59, in clause 6, page 5, line 5, at end insert—

‘( ) An appeal against any refusal of access to a document may be made to a judge of the crown court.’.

Although I have already touched on the lack of a system of appeal, it is right to highlight it. I fully accept that 96 hours is a short time and the Minister is right that, generally, it is difficult to think that anybody will be deeply inconvenienced by losing documents for that time. But is it right as a matter of principle that there should not be liberty to apply to the court? That is a powerful interference with private rights—for a good reason, but an interference nevertheless. If that right were to be abused or used frivolously, having a system by which an appeal could be raised seems sensible.

I specifically chose the Crown court rather than the High Court because the matter could probably be dealt with speedily there. That would not provide for an emergency application at a weekend, but on any weekday there would be Crown court judges around who could take a view as to what the problem was. That would also help to resolve the problem posed by somebody saying, “Actually, you have taken away the contract document that I require to conclude a contract on which I am going to make a profit of £50,000 and which I need for tomorrow morning. What are you going to do about it?” The danger that I perceive is that if such an event were to take place and the documents were retained, there would be fertile area for lawyers bringing claims for damages. It would be wise for the Government to put in a system for protecting themselves against that—I admit, remote—contingency. That is what the amendment is about.

Tony McNulty (Labour, Harrow East)

Clause 6, as already suggested, provides that those people set out in subsection (2), or their representative, may, on request to the officer in charge of the investigation, be granted supervised access to a removed document while it is being retained. We cannot allow unfettered access to material that is the subject of a police investigation. Therefore, where granting access would affect police investigations, it is wholly appropriate to deny access to the removed material.

The hon. and learned Gentleman suggests an amendment that would insert a right of appeal to a Crown court judge should the request for access be refused. That is an unnecessary step, in the context of both the power, under which a document can be removed for a maximum of 96 hours, and of the safeguards already proposed. In addition there is the potential safeguard of a copy being provided for that limited time. In recognition that the power is wide-ranging, as we have all concurred, we have added a substantial number of safeguards—found in the clauses—which include protection for items subject to legal privilege, a requirement to make a record of the removal, strict time limits for the retention of documents under the power, access to the documents by specified persons, and prohibition on the photocopying of documents by others. In addition, I might come back with a provision regarding a copy for the individual if required, within the context of the safeguards for the police under clause 6(3). Given the proposed safeguards, we do not feel that the amendment is necessary.

I return to the example suggested by the hon. and learned Gentleman. If the documents removed dealt, in a foreign language, with a contract behind which might be a pending profit, it would be incumbent on the individual to help the police in every regard by explaining precisely what the documents are. If an entirely legitimate potential profit of, say, £50,000 was pending, I would have thought that the individual would move heaven and earth to assist the police. If, given the substance of other documents and evidence seized as part of an investigation, the police have even a remote notion that a document, once translated, and any subsequent profit, could prove to be evidence of acts preparatory or precursor activities to terrorism, it would be right and proper for them to maintain their position. In the context of the 96-hour limit, the caveats and the ability to access documents now provided for in the Bill, an appeal process to the Crown court would be a trifle excessive, so I ask him to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I am mindful of the fact that I do not wish to complicate matters that do not need to be complicated. The Minister makes a perfectly valid point: the period provided for is short, so an appeal process to the Crown court might not be the right approach. However, if the Government are so certain that the substantial power in the clause will not cause loss to individuals, they should put it in the Bill that, if, when the documents are returned, somebody can demonstrate a loss, the Government will pay compensation and damages to those who have suffered it—I notice the permanent officials if not blanching, looking askance. However, we have had this before in criminal justice legislation.

I want to reconsider the whole architecture of the clause, which is why I intend to withdraw the amendment. It is important that the police have the necessary powers to prevent terrorism through the seizure of such documents and that people do not have unreasonable rights to interfere and ask for documents to be returned, or even for photocopies to be made. However, the logical conclusion of interfering in such a private right is that provision ought to be made to pay compensation, in the extraordinary circumstance that the interference leads to a person suffering loss.

I normally accept that principle over resorting to litigation under the ECHR, which might otherwise be the solution. In a sense, the idea of putting in an appeal procedure was to avoid that. With a quick appeal procedure, someone could go to a judge and say, “Look, you have got this terribly wrong, and my interpreter can show to you immediately that this is what it is and that I need it by 12 o’clock today.” That would ensure that such problems do not occur. I accept that those circumstances are likely to be very unusual, but nevertheless history shows that unusual things happen. Having said that, I beg to ask leave to withdraw the amendment.

Clause 7

Tony McNulty (Labour, Harrow East)

The clause is very straightforward and provides that documents removed under the clause should not be photographed or copied unless they are in electronic form and a copy is needed to make them visible and legible, which I think is an entirely appropriate further safeguard against the improper use of the power. I do not know whether the provision will now have to be amended, in the light of my earlier emollience, to say that we could—notwithstanding the safeguards for the police under subsection 6(3)—probably afford a copy of the document to the individual. I am not sure what the interplay is between the two things, given that the provision prohibits the photocopying and photographing of the documentation. I shall have to look at that. However, in my limited knowledge at the moment, I commend the clause to the Committee.

Dominic Grieve (Conservative, Beaconsfield)

I had not intended to intervene, but I want to clarify something that the Minister said that perhaps I misunderstood. I assumed that the provision was designed essentially to ensure that, if documents were returned, the police had no power to retain copies. I assumed that that was what the Minister intended and what the provision achieved. The only power to produce copies seemed to me to be in the investigative process of downloading what appears to be on computers. As long as that is so, I have nothing more to worry about.

Tony McNulty (Labour, Harrow East)

That is so. Perhaps I over-egg the pudding in saying that I do not know how that relates to what I conceded on. If the seized document is retained but an individual is afforded a copy of it, clearly, if it is an electronic document, it will be given in paper form. The provision also makes it clear that every copy held in that form, purely for legibility, is to be destroyed subsequent to the return. I was concerned only with the interplay between that and my earlier concession. It is as the hon. and learned Gentleman describes it.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister. As far as I was concerned, the interplay was that a copy of the document would be produced during the 96-hour period, at the end of which the original must still be returned to the individual concerned.

Clause 8

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

With regard to clause 8(3), which says,

“Where different persons claim to be entitled to the return of the document, it may be retained for as long as is reasonably necessary for the determination of the person to whom it must be returned”,

I am curious about who will make that determination. Will a senior police officer be acting in a quasi-judicial role? Is not this nit-picking? As the Minister will know, in respect of counter-claims on property that comes into the possession of the police, there is already legislation on the statute book called the Police (Property) Act 1997, which would normally trigger an application to a magistrates court, where both parties could argue and the court would make a finding. Is it at all possible to use that procedure? How exactly would the question be determined?

Dominic Grieve (Conservative, Beaconsfield)

I endorse everything that the hon. Member for Meirionnydd Nant Conwy has just said. I wondered, too, on reading the subsection, what the mechanism was. I assumed that the mechanism that he mentioned would be used. Otherwise, leaving the matter to the discretion of the police officer is invidious for him, if there is a real dispute about whose document it is. As the hon. Gentleman rightly said, there is an established procedure for dealing with such matters. It is noteworthy, however, that that procedure is not commented on in any way in the Bill. It might not be necessary, but it is an existing statutory provision.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I hope that the Minister will set my mind at rest. When there is a dispute about whom the document should be returned to, will it in practice be clear that that cannot be used as a reason for further consideration by parties interested in that document? [Interruption.] I am getting the nod from officials, so I do not think that the Minister even needs to respond.

Edward O'Hara (Labour, Knowsley South)

Nevertheless, I call the Minister to respond.

Tony McNulty (Labour, Harrow East)

How can the hon. Gentleman get the nod from people who are not in the room? Under our parliamentary terms, there is nobody here at all, save for the Clerk, the Chair and Hansard staff.

There is a similar provision, in terms of a dispute over ownership, in the 2001 Act. In that regard, the police make the determination. I am fairly comfortable with that, but I take seriously the point made by the hon. Member for Meirionnydd Nant Conwy. I will have a look at the matter, not least in the context of getting the police out of what may be an invidious position. If the Police (Property) Act 1997 were included to dispel or determine such disputes, that might be better. For now, I am broadly comfortable with the clause as it is. As the hon. Gentleman implies, in the overwhelming number of cases, it will be absolutely clear, a matter of the record, or the dispute may be highlighted at the record stage. We can deal with it in that way. He made a good point, and I shall look at the matter further, but I am content with the clause as it is.

As I understand it, there is no provision to go beyond 48 or 96 hours for inspecting the document and dealing with all the detail, as inferred by the hon. Member for Carshalton and Wallington. It is not that there is a dispute about who to give the document back to. It is not the case that officers can say, “Oh, great, we get another period of time to explore the document further.” The clause is merely about including a provision that says that there may well be a dispute at that stage, and that it is for the police to resolve.

I will explore further the point made by the hon. Member for Meirionnydd Nant Conwy and perhaps come back to the Committee on the matter.

Clause 10

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I beg to move amendment No. 5, page 6, line 29, after ‘constable’, insert

‘with the authority of an officer of a rank no lower than inspector’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following amendments:

No. 6, page 6, line 40, after ‘constable’, insert

‘with the authority of an officer of a rank no lower than inspector’.

No. 8, in clause 12, page 9, line 2, after ‘constable’, insert

‘with the authority of an officer of a rank no lower than inspector’.

No. 9, in clause 12, page 9, line 13, after ‘constable’, insert

‘with the authority of an officer of a rank no lower than inspector’.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

This is a probing amendment. Members familiar with the Bill will be aware that clause 11, which deals with the power to take fingerprints and samples in Scotland, is explicit in requiring a constable to get the authority of an officer of a rank no lower than inspector, whereas that is not the case for England and Wales. Clause 10 simply requires a constable’s authority to take fingerprints and samples.

I accept fully that devolution is a wonderful thing and that discrepancies arise in legislation, but I would like to understand a little better why the Government are not seeking the additional safeguards that are provided in Scotland for England and Wales. In Scotland, the authority of an officer of the rank of inspector is required to authorise the taking of fingerprints and samples.

Tony McNulty (Labour, Harrow East)

The police powers to collect and use fingerprints and non-intimate samples following an arrest for a criminal offence are governed by separate legislation and procedures in England and Wales, Northern Ireland and Scotland, as the hon. Gentleman implies. In England and Wales, or Northern Ireland, a constable can authorise the collection and use of fingerprints and non-intimate samples under PACE or its Northern Ireland equivalent respectively. The police in Scotland are subject to separate powers under the Criminal Procedure (Scotland) Act 1995, which requires authorisation from an inspector or above for particular but not all types of samples.

The provisions in clauses 10, 11 and 12 are intended to regularise police powers across the UK to take routinely, use, store and retain the fingerprints and non-intimate samples of individuals subject to control orders, and, crucially, to ensure that they are in line with existing procedures for the country concerned.

To demand authorisation from an inspector or above in England, Wales and Northern Ireland would create an unnecessary difference between the current framework under PACE and that for control orders. The review of PACE public consultation exercise has clearly shown that the current framework works effectively. To introduce a further tier to the framework would cause confusion and place unnecessary demands on operational resources. Therefore, we do not believe that there should be an exceptional level of authorisation for the collection or use of fingerprints and non-intimate samples for individuals subject to control orders. The power to take fingerprints and samples in clauses 10, 11 and 12 is simply about regularising control orders with existing powers in the respective jurisdictions. This is not a case of decreasing or increasing the level, but of making control orders reflect wider legislation.

We do not think it appropriate to debate the larger issue of levels of authorisation contained in PACE and its Northern Ireland equivalent in this narrow context. The hon. Gentleman’s wider point about moving the level from inspector to constable may be an appropriate concern, but it is not appropriate here. All we are seeking to do is plug a little gap in control order legislation within the existing jurisdictional parameters. I might have had some sympathy with him—I do not, as it happens—on the wider issue of whether it is time that PACE and its Northern Ireland equivalent should go up to the Scottish level and insist that an officer of inspector level or above is involved in fingerprints and samples.

The clauses under discussion are very narrowly defined and relate to an oversight in the control order legislation. We are seeking the power to take fingerprints and samples from those on control orders. In seeking to do that and no more, it is entirely reasonable to do so within the prevailing jurisdictions of England and Wales, Northern Ireland and Scotland. The broader debate that the hon. Gentleman wants to have is a perfectly reasonable one, although I do not agree with it, but it is not for this discussion.

As I have said, under the 1995 Act, in Scotland the taking of some, but not all, samples requires the authorisation of an officer of the level of inspector or above. To avoid confusion, clause 11 mirrors that standard requirement rather than any differing standard. On a narrower point of detail, it is worth noting that the amendments would go beyond the position in Scotland in two respects. If the intention was to mirror Scotland, the amendments are flawed. First, in Scotland, authorisation from an inspector is required in relation to only some, not all samples. The amendments propose that the level should be that of inspector for all such samples. Secondly, in Scotland, authorisation from an inspector is not needed for a constable to require an individual to attend a police station to have a sample taken. The amendments propose that there should be such authorisation in England, Wales and Northern Ireland. For practical as well as more general purposes, I do not like the amendments. I consider them flawed and inappropriate in this narrow context, although I accept the wider debate.

In the PACE review and consultation that has been ongoing for the best part of a year and which is about to come to fruition, we invited interested parties, practitioners and the public to set out the agenda for changing PACE significantly, should they so choose. The level of authorisation for the taking and retention of fingerprints and samples was not raised in response to that, nor in subsequent detailed discussions with stakeholders from across the criminal justice system. Given the narrow thrust of these measures, I ask that the amendment be withdrawn. I say cheerfully that there is a wider argument to be had about PACE, which, remarkably, as the review has shown, has stood the test of time very well since 1984, despite successive amendments to it over the years. On reflection, before the dash to lunch, let us throw the amendment out with alacrity and move on.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I thank the Minister for his response. Clearly, his level of emollience is linked to the proximity of lunch. I do not wish to detain the Committee any longer.

I acknowledge the Minister’s comments about the need for a broader debate. I think that he referred to the need to raise the standards in England, Wales and Northern Ireland to those in Scotland, so perhaps we can return to that at another point. He said that there were concerns that that would raise undue burdens. Before I withdraw the amendment, will the Minister clarify whether any concerns have been raised with him from Scotland on the undue burden that is caused by the need for an inspector to authorise the taking of fingerprints and samples?

Tony McNulty (Labour, Harrow East)

The Scottish system has been the Scottish system for so long that no concerns have come from it about undue burdens due to authorisation from inspectors. That is what prevails and always had prevailed, prior to and including its codification in PACE. My point clearly was not that there was an undue burden in going to the level of inspector for authorisation. It was that, given that we are filling a little gap relevant to control orders, it is appropriate that the measure reflects the existing jurisdiction.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

I beg to ask leave to withdraw the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 7, in page 7, line 5, leave out subsection (4).

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following amendments: No. 60, in page 7, leave out lines 7 to 10 and insert—

‘“(1AA) Where fingerprints or samples are taken from a person who is subject to a control order the fingerprints or samples shall be destroyed no later than six months after the date when such control orders shall cease to have effect.”’.

No. 10, in clause 12, page 9, line 19, leave out subsection (5).

No. 61, in clause 12, page 9, leave out lines 21 to 24 and insert—

‘“(1AA) Where fingerprints or samples are taken from a person who is subject to a control order the fingerprints or samples shall be destroyed no later than six months after the date when such a control order shall cease to have effect.”’.

David Heath (Liberal Democrat, Somerton and Frome)

I welcome you back to the Chair, Mr. O’Hara. We had a good sitting this morning. We made good progress in a state of almost complete cordiality. Let us hope we continue in that vein.

The clause deals with the power to take fingerprints and samples. The Minister has already made it plain that he considers that the fact that this was not a power open to officers in respect of control orders was an omission in the earlier legislation. I accept that. Although I have serious criticisms of the control order regime I understand why he would want to be able to take fingerprints and samples of those who are within it. Where I have a difficulty, and that is expressed in amendment No. 7 in respect of England and Wales and amendment No. 10 in respect of Northern Ireland, is in the retention of those samples, particularly their retention for purposes other than that for which they were originally taken.

Two principles are in play in English law at the moment. Fingerprints are not retained after the event in the case of people who are not accused of any offence, but DNA samples are. Many people have been critical of the fact that, irrespective of whether they have been released without charge or acquitted in a court, a group of people have had samples taken that are retained in the database. The rest of us, who have happily never been arrested, charged or put before a court, are not subject to that requirement. We do not have to give samples. The database therefore is made up of a skewed sample. If it were skewed simply towards those who had been found guilty of a crime, I could understand it. I could understand the logic of having a universal database. What I cannot understand is a database of those who have been found guilty of a crime and those who have expressly not been found guilty of a crime but who have their samples retained.

David Davies (Conservative, Monmouth)

The hon. Gentleman makes a well-known case that has been explored. While it is possible to get quite emotional about this and the apparent lack of logic, in reality the vast majority of people who are arrested are arrested for a good reason. They may not be convicted of a crime afterwards, but many of them will have committed crimes and most of them will have associated in some way with other criminals.

David Heath (Liberal Democrat, Somerton and Frome)

I am very worried by that intervention, not least because I believe the hon. Gentleman holds the office of constable. If that is the case, he has a profound misunderstanding of the principle of innocence until found guilty. Consorting with criminals is a rather archaic offence, but even if one is not found guilty of that before a court, it is not something that I would immediately use in support of an argument. Anyway, I shall set that aside as I do not think that it is typical of the views of the Conservative party on this; it is the view of the hon. Gentleman to which he is perfectly entitled.

The subsections that I suggest could be removed are those that deal with retention. The clause states:

“Where fingerprints or samples are taken from a person who is subject to a control order the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken”—

and it goes on to say—

“but shall not be used by any person except as described in subsection (1AB).”.

I accept that. However, the measure is still a matter of some concern, because control orders, whether or not they are a good way of dealing with a particular problem, are exceptional as a class of punishment. They are a punishment without findings of guilt; punishment on suspicion, effectively. They are a way of ensuring that people are not a danger as a pre-emptive measure rather than post-charge and post-finding of guilt.

Therefore, to retain fingerprints and samples from such a person, against whom no charges have been put and against whom no case has been proven, seems to be at the very least dubious, and to do so after these samples have fulfilled the purposes for which they were taken is dubious in the extreme. So, I suggest that we need to take great care to examine whether this measure is proportionate and appropriate, and also to examine the value that it will have. It may be that the Minister can persuade me that there are circumstances in which this measure will be of enormous value and that it is right for these subsections to be included in the Bill, but I am not yet convinced of that case.

Dominic Grieve (Conservative, Beaconsfield)

Both this set of amendments and the next set, which stands in my name, touch on exactly the same issue, which has been rightly highlighted by the hon. Member for Somerton and Frome. Although they both suggest a slightly different way of approaching the matter, and I shall come on to my amendments at the right time, nevertheless their main thrust is essentially identical.

It is no secret that, on a number of occasions, I have expressed my growing concern at the departure from the normal rule, which used to prevail until the middle of the 1990s, that only the DNA and fingerprints of a convicted person were retained and placed on the national database.

David Heath (Liberal Democrat, Somerton and Frome)

I think that the amendments of the hon. and learned Gentleman are grouped in the same group, unless I am reading from a completely wrong selection paper. So he is perfectly in order to speak to his own amendments.

Dominic Grieve (Conservative, Beaconsfield)

I apologise and I am grateful to the hon. Gentleman, because I was looking one grouping further down and I thought that the groupings were separate. I am grateful to him for bringing that to my attention. Indeed, it makes absolute logical sense that they should be so grouped, because they are, as I said a moment ago, very similar.

Just to go back to where I was starting, I am on record as having previously expressed my concern about the departure from the principle of retaining DNA evidence only from convicted prisoners. In fairness, the first departure from that principle happened under a Conservative Government, when the decision was taken that the DNA—in so far as knowledge of DNA existed at that time, because such knowledge was just beginning to emerge—and fingerprints of individuals who had been acquitted of a crime should be retained. The present Government then expanded that to the retention of DNA and fingerprints taken from those people who were arrested.

I simply make the point to the Minister that I receive a regular stream of letters from individual constituents complaining about such retention of DNA and asking me to make representations to chief constables. In one case, it was a septuagenarian carer who had never been in trouble with the law before. She found that, as a result of a completely misplaced accusation from the woman she was caring for who had almost certainly gone senile, she was arrested, her DNA and fingerprints were taken and it was only about 10 days later that she was entirely exonerated of having allegedly taken money from the bank account of the woman she was caring for. She felt very badly about the retention of her DNA and fingerprints on a national database.

So there has been a growing chorus of disapproval. At some point, Mr. O’Hara, because I do not want to go down a byway in this debate, this issue will have to be revisited by Parliament, because it is deeply and profoundly unsatisfactory.

We must consider today the much narrower, but clearly linked, issues of whether we should have the right to take DNA fingerprints from individuals who are subject to a control order and whether we should subsequently be able to retain them. Although the first of those worries me as a development, I have no doubt that taking DNA and fingerprints from a person subject to a control order is justified. I say that with a certain amount of hesitation, but it seems to me that it should be done for compelling reasons of proportionality. The principal one is that the enforcement of a control order may require the taking of DNA and fingerprints, particularly if an order is breached. That in itself justifies doing it.

More worrying from my point of view is the question whether the making of a control order is simply being used as an excuse to obtain DNA and fingerprints for wider investigative purposes. It would be useful if the Minister told the Committee whether there has been a single instance of a control order being made on a person who has never been arrested. Something suggests to me that that is rather unlikely to arise, and it would be useful for the Committee to know whether it has ever happened. I can see that it is perfectly possible, at least in theory, for a control order to be made on a person who has never been subjected to arrest, and for the entire control order procedure to take place without DNA and fingerprints having first been obtained by the police.

The question is whether that material should be retained on the national database. The Government have chosen to expand the category of people from whom they can obtain DNA and fingerprints, and I have the gravest reservations about such retention in the case of a person who has never been arrested, charged or even acquitted of an offence, and certainly never convicted. If the Government wish to obtain DNA and fingerprints, the only possible rational justification must be that it is required directly for the enforcement of a control order. I might add incidentally that taking such material will inevitably give the Government and the police the opportunity to check whether the person concerned has been involved in any criminal activity that they wish to impute to them. It is inherently unlikely in most cases that the individual concerned will not have been arrested for something before the control order was made. That is why that is an important piece of information for the Committee to have.

Amendments Nos. 60 and 61 are intended not to delete proposed new subsection (1AA) entirely but to provide for a six-month period from the date when the control order comes to an end, after which the material would have to be destroyed and removed from the records. The Scottish system, which I think now operates a two-year period of retention when individuals have been arrested but not charged, seems to have considerable sense. I think that it applies also to individuals who have been acquitted. It provides for a period of retention in case something turns up that means that the material needs to be used, but gives a sense of reassurance that there will come a point when the material is removed.

This is something of a philosophical issue. I feel strongly, and it is my party’s position, as the shadow Home Secretary has repeated on a number of occasions, that the system that we are creating, of finding opportunities to take DNA and fingerprints from individuals who have not been convicted of offences, is untenable. The clause might even be overturned if the decision of the European Court of Human Rights goes against the Government on that point. It might be possible to sustain it along the lines suggested in the amendments, but it would certainly not be possible to sustain it along the lines of the Government’s proposals to keep the material in question indefinitely.

For those reasons, I find myself extremely troubled by the proposal, and the Minister will have to provide some compelling arguments to explain why we have to add to the already long list of groups that have to supply DNA and fingerprints. As the Minister knows, the alternative route that is floated from time to time is that all of us in this country should provide our DNA and fingerprints to the authorities. Perhaps it could be some form of civic celebration that takes place at the age of 11—the age of criminal responsibility. Or, as Lord Justice Sedley suggested, every single visitor to this country—even from the European Union—should be welcomed on their arrival at Heathrow airport with a visitor’s visa and a requirement to provide DNA and fingerprints. That proposal at least has intellectually more sense than what we are doing at the moment. While I am not against the idea that we should make an exception for obtaining this material for the sake of enforcing control orders, I am deeply troubled by the suggestion that we should retain it for long-term purposes, having obtained it under another sleight of hand, which is being introduced for that purpose. I hope that the Minister can provide some rational justifications because at the moment I fail to see them.

Tony McNulty (Labour, Harrow East)

Welcome back to our deliberations, Mr. O’Hara. I understand the thrust of what has been said, but I think that much of it is misplaced and, rather like the last set of amendments, belongs to the wider national debate. For better or worse, the national DNA database is controlled and governed under regulation by the Police and Criminal Evidence Act 1984. The points that the hon. Gentlemen make about the retention of DNA samples on that database more properly belong in a debate about the existence of the national DNA database in the first place. When he appeared before the Home Affairs Committee, the right hon. Member for Haltemprice and Howden (David Davis) said:

“I am comfortable with the terrorism issue but I do think we need to review our whole approach to DNA retention, particularly of people who are exonerated, who are not charged, and certainly not convicted. So I am comfortable with using it in this context and having proper transfer arrangements in this context, but I think we have got to come back to the whole DNA issue on criminal law anyway at some point.”

I concur with that although I might not agree with the outcome. I agree with Chief Constable Tony Lake—until recently, he was the Association of Chief Police Officers’ lead on forensics including DNA—that there needs to be a thorough review of the statutory architecture, including PACE, that governs the retention of DNA samples. I am very happy to have that debate.

I chuckled a wee bit when the hon. and learned Member for Beaconsfield referred to Lord Justice Sedley because I rather foolishly said on the “Today” programme—I thought that I was having a proper conversation rather than a Punch and Judy show with John Humphrys—that I had some sympathy with the logic of the case. Five days later, that was written up as, “The Government have sympathy with a universal database.” I never said that; I said that I had sympathy with the logic of the case. Given its intellectual logic, one would be a fool not to. Having looked at the matter in the wider criminal sense—I will return to the amendments in a moment—I am comfortable that we have it about right, if we start from the philosophical assumption that the DNA database is not a rogues gallery, a list of the guilty and convicted—it patently is not that—or a list of those who, but for a bit of luck, are probably criminals anyway, which is along the lines of the point made by the hon. Member for Monmouth. Again, that is a perfectly fair point, but not one with which I would necessarily agree.

There has been consultation and a proposal to extend the existing criteria for the national DNA database to non-recordable offences. At the moment it covers only recordable offences, whether the person is finally convicted or not. We shall probably resist that, not least for the reasons suggested by others, and we believe that it is about right now. This is not the place to go through the litany—it is a huge list—of cold cases and serious cases that were cracked in the first instance because a DNA sample was on the national database, often for entirely erroneous reasons. I am talking about serious murders, serious assaults, serious robberies, rape and a range of other cases.

I do not want to stray too far from the point, but it is clear that Stephen Wright in Ipswich would not have been caught bang to rights were it not for a DNA sample on the database. It was not the only evidence against him, but it pointed to his guilt, and it arose either because of a minor theft of a car or a minor assault or affray—I cannot remember which, because I confuse it with the Croydon case.

David Heath (Liberal Democrat, Somerton and Frome)

But he was guilty.

Tony McNulty (Labour, Harrow East)

There were minor fines in both cases. I take that point, but none the less, the murders were resolved only because of the DNA samples.

Martin Salter (Labour, Reading West)

Perhaps I can help the Minister, because I was a member of the Home Affairs Committee when the debate was raging, as were other hon. Members here. Stephen Wright was convicted as a result of DNA collected following his arrest for a bar fight. However, does the Minister accept that Liberty—I am sure that it will be prayed in aid when we discuss other matters relating to the Bill—has argued that DNA should be collected only from convicted sex offenders? In that case, Steve Wright would not have been convicted, and other lives might have been at risk.

Edward O'Hara (Labour, Knowsley South)

Order. I do not want the Committee to go too far down the road of discussing that illustrative example.

Tony McNulty (Labour, Harrow East)

I do, Mr. O’Hara, but I will not.

The point is that the balance must be right, if one accepts, as one should, that the national DNA database, including the elements that we are considering in the clause and amendments, is an investigatory and inquisitorial tool. It is not about a criminal record. It is not about a list of criminals. For the sake of public safety, given the police’s 14,000-plus hits annually—I cannot remember the exact number—and the 35,000-plus crimes that have been solved because someone is on that database, on that precautionary principle the balance must be about right now.

Tony Lake, the chief constable to whom I referred earlier, has some reservations about the time frame for retention, particularly for the young and those who are not convicted, and it is reasonable to explore that further during the review of the Police and Criminal Evidence Act 1984, but I am with the right hon. Member for Haltemprice and Howden (David Davis), who has the same name as the hon. Member for Monmouth but differs from him in so many ways.

David Davies (Conservative, Monmouth)

I am known as the more right wing of the two of us.

The Minister will recognise that there is a low conviction rate for sex offenders. I fully accept that the system is not perfect, but it is probably the best of many bad systems that we could put in place. If we did not have it for offences such as sex offences and because of the low conviction rate, many people would get away with crimes that they otherwise would not.

Edward O'Hara (Labour, Knowsley South)

May I remind the Minister of my previous ruling? We are going down a side alley.

Tony McNulty (Labour, Harrow East)

I agree entirely, Mr. O’Hara, but you will forgive me for peeking down the side alley that unites the right hon. Member for Haltemprice and Howden and me—[ Interruption. ] It should, but occasionally all Members of Parliament with the name of David Davis or David Davies, however it is spelt, get it right. This is one of those rare occasions. I seriously believe that the balance is right. I agree that that debate is serious, but it is a debate for the wider PACE review. The right hon. Gentleman the Member for Haltemprice and Howden with reservations agrees—I do not want to put words into his mouth save for those lifted from the Select Committee—with what we are trying to do in relation to controlees, but recognises that wider debate should and will happen too.

Dominic Grieve (Conservative, Beaconsfield)

I do not disagree with my right hon. Friend the Member for Haltemprice and Howden. I made it clear to the Minister that the logic of being able to take DNA and fingerprint material from somebody subject to a control order, for the purposes of its enforcement, seemed to be overwhelming. I do not believe that that would be successfully challenged in the European Court of Human Rights anyway. That said, the question, which cannot be divorced from the wider issue, about the accretional way in which we are building up the national database in which that will be an additional element, should be of concern to the Committee, because we do not have a strategy for that. Therefore the answer to the question of how many people that would cover at present is rather important. I worry that the way in which we are building up that database is undermining civil liberties. There can be no doubt about that. If it were not, the arguments that Mr. Lake put forward about how unfair it might be to those of 11 and 12 would be invalid. So we cannot escape the fact that there is an ethical issue.

Tony McNulty (Labour, Harrow East)

With the greatest respect, nor am I trying to. I am just saying that the substantive parliamentary debate about those ethical issues belongs elsewhere. I was going to say that I would continue on the amendments, but perhaps, following your admonishments, Mr. O’Hara, I should start on the amendments, because that is an important point. At the moment—I will not go into details for obvious reasons—the number is about 13 or 14. That is relatively low; at its peak it has only ever been about 18. If the ethics are wrong, one is too much, so I am not suggesting at all that because 13 or 14 are so few it does not matter terribly much.

Dominic Grieve (Conservative, Beaconsfield)

But how many of those 13 or 14 have never been arrested? I suspect—from reading the newspapers, but the Minister will be able to correct me—that the overwhelming majority of those have been arrested at some point in the course of police investigations, prior to a control order being sought against them.

Tony McNulty (Labour, Harrow East)

With respect, I do not think that that is right, but I am sure that people who do not exist in the room will tell me in a moment. This note is probably not the answer, because it never works like that in my experience in Committee. I will come back to that. I do not think that that is right because, by definition, many of the controlees will be people about whom we have significant intelligence but on whom we have insufficient evidence, even in the first instance. So it does not absolutely follow that they would have been of interest to the police and arrested at previous stages. We will see if the information is available, and if I stand corrected I shall tell the Committee so.

I hesitated over 13 or 14 because there are a range of factors—let me say no more than that—that may mean that that number fluctuates. Hopefully the Committee will indulge me and appreciate that I cannot say any more than that. Either way, globally at any given time, that will impact on say 10 to 20 people. I do not say that to diminish the ethical or civil liberties dimensions but just as a matter of fact. The purpose of the clauses is to put the power routinely to take fingerprints and non-intimate samples of controlled individuals on an equivalent basis to existing police powers in relation to fingerprints and non-intimate samples taken after arrest in the relevant jurisdictions. Rather like our debate on the previous set of amendments, that simply reflects the existing jurisdictions that we are trying to match in those instances, and no more than that. Current procedures in England, Wales and Northern Ireland allow the retention, with defined exceptions, of fingerprints and non-intimate samples after they have fulfilled the purposes for which they were taken, when individuals are arrested under the Police and Criminal Evidence Act or the Police and Criminal Evidence (Northern Ireland) Order. The corresponding provisions in schedule 8 to the Terrorism Act 2000, which apply in all home countries’ jurisdictions, also allow for the retention of fingerprints and non-intimate samples after they have fulfilled the purposes for which they were taken.

It is germane to add that the term “fingerprints” is clearly self-defining, although it also includes palm prints. Furthermore, “non-intimate sample” means a sample of hair, other than—clearly—pubic hair; a sample taken from, or from under, a nail; a swab taken from any part of a person’s body, including the mouth, but not any other bodily orifice; saliva, or a footprint or similar impression of any part of a person’s body other than a part or the whole of a hand. To make it very clear what we are discussing, those are the definitions of fingerprints and non-intimate samples under PACE.

We do not believe that fingerprints or non-intimate samples taken from controlled individuals should be subject to different rules for retention, whether by deleting subsections relating to their retention or by specifying the destruction of the fingerprints or samples six months after the control order for the individual concerned has ceased to have effect, which, broadly speaking, is what the amendments would do. We oppose the amendments—I have saved that until now. Rather than tease the Committee, my speaking note says right upfront, “The Government are not in favour of the amendments.” However, I like to work up to that point, rather than introduce our position at the beginning.

First, we consider it appropriate that fingerprints and samples of controlled individuals be retained on the same basis as samples taken from other individuals under PACE, PACE (Northern Ireland) or the Terrorism Act, because controlled persons are, by definition, suspected terrorists. I understand the point about definition that the hon. and learned Gentleman made about charge or no charge. It was a reasonable point, but I do not necessarily agree with how he built on it.

Secondly, and relatedly, the same safeguards and provisions apply as for other fingerprints or samples taken under PACE, PACE (Northern Ireland) or the 2000 Act. For example, samples may be used for specific purposes only. Thirdly, and again on a related point, we do not think it appropriate to debate the wider issue of the retention of fingerprints or samples under PACE or the 2000 Act in the narrow context of controlees.

Fourthly, and on a practical level, the retention of fingerprints or samples might help the police and agencies with future criminal or terrorist activities and investigations. By retaining controlled individuals’ biometrics, we strengthen the ability of the police to prevent, detect and investigate such crime and terrorism and to increase the chance of the individuals responsible being prosecuted. The powers might also help to get suspected terrorists off control orders and down the Government’s, and everybody else’s, preferred route towards prosecution. Finally, to demand the destruction of fingerprints or samples of controlled individuals could also cause unnecessary practical difficulties and confusion because it will run counter to all existing procedures. I argue that the Committee should not accept the amendment for those reasons.

Dominic Grieve (Conservative, Beaconsfield)

I confess that my mind started to boggle slightly when the Minister said that it would cause difficulty because it is contrary to all current procedures. At the moment, I am making successful representations, in a number of cases, to my chief constable, asking her to do just that. He has made some good points, but that perhaps is not the best one.

Tony McNulty (Labour, Harrow East)

My mind also boggled a little when I read it out. I, too, think that it was the weakest of the points. Under existing PACE laws, chief constables have the discretion to which the hon. and learned Gentleman alluded. Pending the European Court of Human Rights judgment that we are appealing, that is the only significant means of removing samples from the database, and that is perfectly in order.

My argument is that the amendments would run counter to current procedures for the specific set of individuals being debated. I contend very strongly that those individuals, on all balance and proportionality, should be on, and stay on, the DNA database once we have obtained those samples. I have made my reasons for that clear: national security and the ability to assist in subsequent terrorist cases. We must strike that balance—although I concede that that wording is a bit flabby. The PACE review is looking, as part of that wider national debate, precisely at what sort of discretion the chief constable should have and what criteria should be utilised, but I do not want to address that point again now.

Having agreed on balance that it is perfectly justified and proportionate to take the samples in the first place, given the nature of the individuals concerned, it would be illogical to apply a different set of rules to the retention of those samples for the purposes of the Bill, rather than look at the issue and others, whatever the philosophy, in the wider context of a debate about PACE.

Dominic Grieve (Conservative, Beaconsfield)

If we still had the old system that was used in the early 1990s, whereby all DNA and fingerprints were destroyed if a person was acquitted, and if the Government came to the Committee and asked for a single exception to be made in the case of control orders, I would not necessarily be unsympathetic to such a request. I remain concerned, however, as I think the Minister understands, at the way in which we are increasing how we capture DNA, without having a rational debate about it.

Tony McNulty (Labour, Harrow East)

I have partly indicated that I broadly concur with that, but in the context of the Bill and for the purposes outlined in these clauses, my balanced judgment perhaps goes the other way to that of the hon. and learned Gentleman, although I am not even sure in which direction he would go, given his contributions. I do not think that there is much between us. During the John Humphrys interview to which I have referred, I did say—when I could get a word in edgeways—that it was perfectly reasonable to have a substantive debate on issues relating to retention and on all the other matters that Tony Lake and others have referred to in the PACE review, but that is for another time.

We are where we are, by accretion or otherwise. I am saying that controlled individuals are such a particular group that, in the interests of our fight against terrorism, we should not only take samples, but retain them. We should certainly retain them on the basis of the existing laws that prevail for everyone else with regard to the DNA database. Whether that should change is a matter for another national debate. When we have that debate, I will argue strongly, in relation to the retention of samples from people who are not convicted, that samples should not only be taken from those individuals, but be retained for as long as utterly possible in the interests of national security. That is why I ask, on balance, that both groups of amendments be resisted.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. and learned Member for Beaconsfield and to the right hon. and unlearned Gentleman, the Minister.

Tony McNulty (Labour, Harrow East)

Unlearned?

David Heath (Liberal Democrat, Somerton and Frome)

Come on, the Minister cannot have it both ways—he objected when I called him “learned”.

I am grateful for the contributions, but a few points need to be made about the debate in which we have just enjoined. I accept from the Minister that it is consistent with the control order regime for this power to exist. I do not accept the control order regime as it is constructed, and he knows that I do not think that it is working well and see it very much as an exceptional circumstance. However, while the present regime is there, the power to take samples from those individuals is consistent with it.

The Minister is right to say that retention is a wider issue than can be addressed by the narrow confines of the amendments and, indeed, the clause before us today. I sympathise with his problems with the “Today” programme and with having to explain the logic of a universal database: I have used exactly the same words before and been shot down in flames by those who have misunderstood me and thought that I was advocating a universal database when all that I had said was that it is more logical than the current situation. It has an internal logic that the present situation does not.

I am not quite so happy with the view that the partial database—including, as we have debated this afternoon, not only those who have been found guilty of a range of offences, but those who have been arrested but freed without charge or those who have been charged and found not guilty—is entirely the innocent investigatory tool that it has been suggested it is. It is a wonderfully powerful investigatory tool and I would not want to deny the police the opportunity of using it to investigate crimes properly.

I cannot remember if certain Members were on the Bill Committee when we introduced the DNA sample regime a few years ago; I am pretty sure that I was, because I seem always to be on such Committees. We Liberal Democrats did not argue against the principle of a DNA database. We said that, to make it effective, either people who are innocent of any crime should not be on it or everybody should be on it. The problem with a partial database is that, even with the increased sophistication of DNA testing and comparing, there are false positives. People are more likely to come circumstantially under suspicion as a result of being on the database than if they are not on it. Whereas it can be argued that that is a price that someone has to pay for having been convicted of a crime, it is hard to sustain the view—other than by the hon. Member for Monmouth, who feels that someone who looks shifty ought to be on the database—that somebody who is innocent of a crime ought to have that risk attached, in addition to the fact that for every set of DNA characteristics there are probably six, seven or eight people in this country who are sufficiently close to provide a false match. Many Members have always been concerned about that.

The Minister says that this is not the time or place to have this argument and I agree. He is right to say that. But the trouble is that this is our only opportunity to stop that accretion—as the hon. and learned Member for Beaconsfield called it—of further DNA samples on to the database of people who have not been charged with, and have certainly not been found guilty of, any crime. This is our only opportunity to argue the case and suggest that this fundamental issue needs to be addressed.

It could be argued that there is likely to be—we cannot say that there will definitely or even probably will be—a higher level of culpability in respect of someone against whom sufficient intelligence evidence has been put together to ensure that a control order has been secured. In such a case, there is likely, perhaps, to be a higher level of culpability than in respect of someone against whom no charge has been preferred and who has simply been picked up by the police and released without charge. That is a proper inference to draw from the circumstances. If any group is the first to be removed from the database, it should not be the controlees, but should be those who are released without charge because they have not committed any crime and against whom the police have no evidence on which to charge them.

We have to use opportunities such as this in Committee to rehearse these arguments, even if they will return time and again. I welcome what the Minister said about the need for a wider review of this matter. It is essential that we do that. However, I do not share his phlegmatic assertion that the present situation, with the inclusion of these samples, is where we ought to be. I have deep concerns about that. However, we are right to raise the issue.

The hon. and learned Member for Beaconsfield and I have raised quite proper concerns in today’s sitting and we have used this opportunity to register them. That is a proper use of the Committee. Having said that, I do not intend to press the amendment to a Division. I beg to ask leave to withdraw the amendment.

Clause 11

Dominic Grieve (Conservative, Beaconsfield)

I just want to take the opportunity to tease from the Minister the different regime that will apply in Scotland. As I understand it, while it would be possible for a retained DNA sample taken in such circumstances to be used for the purposes of terrorist investigation or in the interests of national security, a different limit will apply there from that which applies in England, Wales and Northern Ireland. I should be grateful if the Minister could confirm that. I simply make the point that the fact that the Minister has had to accept a different regime in Scotland highlights differences, which it is not suggested are about to bring the world to an end, notwithstanding the fact that the Minister has to accept different Scottish legal principles.

Tony McNulty (Labour, Harrow East)

In filling the omission in relation to the control order regime, the thrust of clause 11 is to get matters on a par with the jurisdiction within which they sit. An important point has been overlooked, certainly in the amendments to clause 10, some of which were also relevant to clause 12, but not to clause 11. Samples secured in Scotland under the Terrorism Act 2000 are not destroyed, as someone suggested earlier—in the normal context, under the Criminal Procedure (Scotland) Act 1995, they are. We simply seek to reflect that dimension in terms of Scottish jurisprudence, which, as everyone knows, long outdates any notion of devolution. The system has been significantly different for a considerable period of time, and it is right and proper that we reflect that.

As the Committee will know, terrorism and security matters are not devolved. Routine criminal law has clearly been long devolved in Scotland and we simply seek to reflect that position. That is not to say that the Scottish Executive cannot see the potential merits of the wider powers set out in clauses 10 and 12 for England, Wales and Northern Ireland, but it is quite properly for them to examine whether and how best to incorporate the devolved elements of those provisions into existing Scottish law.

The Committee might know that the Scottish Executive has undertaken a review of other aspects of DNA and fingerprint powers. Scottish police powers on the use, storage and retention of fingerprints and non-intimate samples for individuals subject to control orders could be brought into line with those for the rest of the UK at the same time as any other legislative changes resulting from that review. I cannot remember whether it is confirmed, but some time in the immediate future I shall meet the Scottish Justice Minister to discuss that and a range of other matters. In seeking to fill the omission in clauses 10 and 12, clause 11 perfectly properly reflects the jurisprudence that prevails in Scotland. In that context, I commend it to the Committee.

Clause 14

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 84, page 10, line 8, leave out ‘or samples’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss amendment No. 86, in clause 15, page 11, line 7, leave out ‘or samples’.

Dominic Grieve (Conservative, Beaconsfield)

These amendments were also tabled by my hon. Friend the Member for Newark. They are simply probing amendments to gain an understanding of what the word “samples” encompassed in the two clauses. I think that I know the answer, but if the Minister would like to explain the matter to the Committee, I am sure that my hon. Friend would be pleased to hear his response.

Tony McNulty (Labour, Harrow East)

Certainly, in the original amendment paper—I am sure that it has been corrected—when amendment No.86 was first tabled, it referred to clause 14 rather than 15. I am not too sure—

Edward O'Hara (Labour, Knowsley South)

The two amendments refer to the identical phrase in the two clauses.

Tony McNulty (Labour, Harrow East)

Clause 14 makes amendments to the Police and Criminal Evidence Act 1984 and Clause 15 makes amendments to the Police and Criminal Evidence (Northern Ireland) Order 1989 to allow samples obtained under PACE to be checked against samples that are

“held by or on behalf of the Security Service or the Secret Intelligence Service.”.

In this case, “samples” means DNA samples derived, for example, from saliva, blood or swab. Most of what I read out as referring to samples and swabs came from the definition in the explanatory memorandum.

Dominic Grieve (Conservative, Beaconsfield)

Does that include intimate samples? I rather assumed that it did, but the Minister can doubtless put me right on that.

Tony McNulty (Labour, Harrow East)

I certainly assume that it does, unless someone tells me otherwise, which they may during the course of my deliberations. However, that was certainly my understanding. Having said that, I have discovered in the past that inspiration does come if one stands around for long enough.

By amending PACE and its Northern Ireland equivalent, these clauses will allow such samples to be checked against samples that are

“held by or on behalf of the Security Service or the Secret Intelligence Service.”.

To facilitate this cross-checking, the clauses change the purposes for which PACE samples can be used, adding simply “national security”.

For example, if the police take a sample from an individual as part of an ordinary criminal investigation, that sample will be retained on the national DNA database, as we have just been discussing, where the uses to which it can be put are regulated by PACE. If a sample is subsequently taken covertly by the security services during a terrorism investigation, but they are unable to identify to whom the sample belongs, the current law would not permit the security services to check the national DNA database. Whatever one’s view of the DNA database, with regard to retention of data and all the other issues that we have discussed, clearly that is a position that should not prevail.

The clauses will rectify that situation and allow the security services to undertake a cross-check to obtain the necessary personal information that will enable them to continue their investigations. In terrorist investigations, where it is vital to construct the network to those involved with terrorist organisations, the ability to make such a cross-check routinely will be invaluable.

The two amendments would amend the two clauses by removing reference to “samples” in PACE and its Northern Ireland equivalent. That would mean that there will be no provision for checking of DNA samples obtained under PACE against police records or databases, as is the case at present. It would also mean that the checking of DNA samples obtained under PACE against records held by the security agencies, which is the entire purpose of the clauses, would not be provided for.

Clearly, it would not be in the interests of effective investigations to remove provision for the police to check DNA samples against their databases or against the records held by the security services. That situation would be particularly peculiar because the amendments would not remove the provision for the police to cross-check fingerprints and footprints against records held by the security agencies, but, because of the use of the word “samples”, they would remove the ability of the police to cross-check DNA samples.

David Heath (Liberal Democrat, Somerton and Frome)

In a desperate attempt to stop the Minister’s flow, I am intervening. Actually, I have a serious question—well, I do not know if it is a serious question, but I shall put it. Does the act of the police checking the evidence base held by the security services against the police evidence database, incorporate the evidence held by the security services into the body of evidence that is subject to PACE? Does PACE apply to the evidence held by the security services?

Tony McNulty (Labour, Harrow East)

I do not think so because the security services hold such evidence for entirely different reasons. PACE is very clearly outlined in the regulatory framework within which an individual is taken through the charge and subsequent process. It relates to the level and quality of evidence in the evidential chain and other elements. Unless somebody tells me otherwise, I struggle to see why PACE should apply to that interchange in use from the security services’ database, unless it is subsequently used in the courts by the police. That would be unusual, but under such circumstances, PACE would cover it. Perhaps the hon. and learned Member for Beaconsfield has an answer.

Dominic Grieve (Conservative, Beaconsfield)

A better point at which to debate this issue might be when we come to material not subject to existing statutory restrictions. The point raised by the hon. Member for Somerton and Frome is whether material held by the security services may be adduced in evidence in a criminal trial. That raises a host of interesting issues, such as the possible disclosure of how such material was obtained. We can deal with those issues in a moment, but I think that I have understood his point, which is an important one. However, the appropriate time at which to raise it is during our discussion of clause 18.

David Heath (Liberal Democrat, Somerton and Frome)

I was just trying stop the Minister reading.

Tony McNulty (Labour, Harrow East)

I am afraid that the hon. Gentleman will have to do much more than that to stop me reading my notes. I think that I have responded to his point, not least by saying that the utilisation of the security services’ data in any public court would lend them to coverage by the rules of evidence and PACE. That is why it is more likely than not that such evidence would not be used, except in exceptional cases and there have been such cases.

Because I have had inspiration, I can now confirm the point from the hon. and learned Member for Beaconsfield that “sample” covers intimate and non-intimate samples, as we had all assumed. However, unlike in our previous discussions, the clause does nothing to add to the ability to take samples. The measure is about sharing that data and information and must, in the perfectly reasonable way that I put it, make sense to everybody. Clearly, it will be greeted with acclamation and the amendment will be withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

The amendment will indeed be withdrawn and we can continue the debate under subsequent groups of amendments. I am grateful to the Minister for answering my main question on the scope of the word “sample”. I beg to ask leave to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 62, page 10, line 37, leave out paragraph (a).

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following amendments: No. 85, page 10, line 37, leave out ‘national security’ and insert

‘preventing an offence with a terrorist connection’.

No. 63, in clause 15, page 11, line 36, leave out paragraph (a).

No. 87, in clause 15, page 11, line 36, leave out ‘national security’ and insert

‘preventing an offence with a terrorist connection’.

No. 64, in clause 17, page 12, line 29, leave out from beginning to ‘or’.

No. 65, in clause 18, page 13, line 13, leave out paragraph (a).

No. 88, in clause 18, page 13, line 13, leave out ‘national security’ and insert

‘preventing an offence with a terrorist connection’.

Dominic Grieve (Conservative, Beaconsfield)

We now come to the issue of national security, which features in more than one of the subsequent clauses. As the Minister is aware, I have sought to delete the words “national security” from a number of places. I emphasise that this is a probing amendment. It is, nevertheless, a rather important one for reasons that I will explain briefly.

The Bill is about counter-terrorism, so it is ultimately about the prevention or detection of crime, which, as the Minister will see when he looks at clause 14, features clearly in the words in proposed new subsection (1AB), which refers to

“purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution”.

That covers not just the investigation of a crime after it has been committed, but the prevention of a crime before it is committed.

I believe the Minister will have little difficulty agreeing that, in the scope of counter-terrorism work, it is not immediately obvious what difference there might be between the interests of national security and the prevention of crime, because one would have thought that the sort of activity that takes place in the interests of national security is the prevention of crime, quite apart from its detection afterwards. I do not think that the Committee can simply gloss over the question of what other than the prevention or detection of crime, or, for that matter, the identification of a deceased person, is covered by the ambit of national security.

The term “national security” has a legal definition. It covers the scope of the activities of the security services and the Secret Intelligence Service. The Committee is entitled to ask the question, because I suspect that activities that previously have been conducted—I am mixing my metaphors—on the wrong side of the blanket, if one talks about conception, are now being brought to the right side of the blanket, and things that previously simply did not have a statutory framework at all are now being given one. If they are to be given a statutory framework, the Committee must ask exactly what it will be.

For example, is it being suggested that fingerprints, impressions of footwear or samples, however they may be treated in the different clauses—the amendments do not apply only to clause 14—can be used to protect the economic interests of the United Kingdom? What is the scope to which national security will apply for those purposes? That is the nub of the question that I wanted to ask the Minister.

Let us consider some of the later clauses to which the amendments would make deletions. Amendment No. 65 would amend clause 18, which deals with material not subject to existing statutory restrictions. The clause states:

“This section applies to...DNA samples or profiles, or...fingerprints, that are not held subject to existing statutory restrictions.”

I must assume that, in essence, that is security services and SIS material collated by from time to time taking DNA samples from possible suspects whom they have under surveillance in one form or another.

The clause goes on to state:

“Material to which this section applies that is held by a law enforcement authority in England and Wales...may be retained by that authority and used—

(a) in the interests of national security”.

That appears simply to be putting on a statutory footing what I suspect has already been happening, but perhaps the Minister would like to confirm that that is indeed the case.

I will leave until consideration of the detailed amendments to clause 18 itself the discussion of the counter-relationship, which is using material from the SIS and the security services to bring a prosecution. We touched on that, but the proper place to consider it will come later.

I hope that I have made my main point clear to the Minister. The amendments centre around the definition of national security. An understanding of that as we start our consideration of the clauses would help the Committee to understand what we are in fact making legal for the future that was not previously covered by any legal framework whatever.

Tony McNulty (Labour, Harrow East)

The provisions on the retention and use of fingerprints and samples have three broad objectives: first, putting a counter-terrorism DNA database on a firmer legal footing; secondly, allowing fingerprints or samples taken under PACE or its Northern Ireland equivalent to be used for national security, as the hon. and learned Member for Beaconsfield implies; and thirdly, making it easier to allow fingerprints or samples taken under the Terrorism Act 2000 to be placed on the national DNA database.

The amendments concern the second of those objectives. As the hon. and learned Gentleman said, they propose the removal of the provisions in these clauses to add national security to the permitted uses of samples obtained under PACE or PACE (Northern Ireland) and those covered by clause 18. As he said, amendments Nos. 85, 87 and 88 propose an alternative to including national security, which is to include

“preventing an offence with a terrorist connection.”

As he rightly said, “national security” is broadly defined in section 1(2) of the Security Service Act 1989. When Lord Carlile was before us last week, he said:

“It is very difficult to define exactly the concept of national security. The security services certainly have a need to share information, as do other control authorities, which is the generic term that I use for the police, the security services, Revenue and Customs and so on...I believe that any information that is potentially useful in the prevention and detection of terrorism should be shared by appropriate bodies. If that requires placing it on a statutory footing, again, I have no possible objection. I would support it.”——[Official Report, Counter-Terrorism Public Bill Committee, 24 April 2008; c. 118, Q313.]

That is what the reference to national security in these clauses does.

As the hon. and learned Gentleman said, the definition of national security is clear in the 1989 Act. It includes

“threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine parliamentary democracy by political, industrial or violent means.”

That is the broad definition of national security. We want an interplay between information, data, samples and so on held by the security services and those held by the police, and this and subsequent clauses are the best way of achieving that outcome. A more narrowly drawn definition, as given in amendments Nos. 85, 87 and 88, does not capture the statutory reasons that afford the security services the right to collect their databases in the first place, which are widely drawn in that definition of national security.

Clearly, not all the activities in that definition are included in the current purposes for which samples obtained in criminal or counter-terrorism investigations can be used. Section 64(1A) of PACE currently allows DNA to be used for the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of dead people. The same is true of PACE (Northern Ireland). Clauses 15, 17 and 18, which are the targets of the amendments, insert national security into the uses to which samples obtained under those Acts or clause 18 can be put.

The hon. and learned Gentleman said that the references to national security would be expunged entirely by the amendments, and that is why we must resist them. For example, if the security services took a sample covertly during a terrorism investigation but were unable to identify to whom it belonged, the law as it currently stands, and would remain if the amendments were accepted, would not permit them to check the national DNA database unless they considered the investigation to be related to one of the purposes for which PACE allows DNA to be used. Intuitively, that cannot be right. The law must afford our “control agencies”, to use Lord Carlile’s term, the ability to talk and interact with each other about the data and information that they hold. However, in some terrorist investigations, perhaps undertaken at an early stage, no crime has been committed and no specific crime is envisaged. Samples may be obtained covertly to gather intelligence on a group of individuals about whom there are concerns but who are yet to commit a criminal act. It may then be difficult to say that the investigation relates to the prevention of crime when the focus, for example, is more on establishing links between the persons. The establishment of networks in counter-terrorism is hugely important.

Clauses 14, 15 and 18 will rectify the situation by allowing the use of PACE samples for national security purposes and allowing the security services to undertake a cross-check to obtain the necessary personal information, which will enable them to carry on their investigations. I repeat that, in terrorist investigations, where it is vital to disrupt the networks of those involved in terrorist organisations, the ability to make that cross-check will be invaluable. If the police obtain a sample covertly as part of a terrorism investigation, it is more of a national security matter, as defined by the principal Act, than a simple focus on a particular crime. The sample will be checked against an ordinary PACE sample, with the same benefits that apply when the security services cross-check samples with PACE. For those reasons, we resist the amendment. The hon. and learned Gentleman quite properly did not refer to amendments Nos. 85, 87 and 88, but we can return to them if the Committee wishes. Again, for the reasons that I have mentioned, it is appropriate for the Committee to resist the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I hope that I made it clear to the Minister that I did not table the amendments for the purposes of dividing the Committee. I wanted some clarity, which the Minister has most helpfully provided, about what the provision means in practice. The explanatory notes were not helpful, therefore it seemed to me that we ought to know what we were doing. As for not touching on the other amendments, they were added later. They did not add much to the issues that we had to debate, although they tried to tease out the difference between national security and preventing an offence with a terrorist connection, which the Minister has properly dealt with anyway. I am grateful to the Minister for providing that explanation, and I beg to ask leave to withdraw the amendment.

Clause 18

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 66, in clause 18, page 32, line 27, leave out paragraph (c).

Clause 18 is about material that is not subject to existing statutory restrictions. I said earlier—the Minister will doubtless confirm it—that the material will be held by a law enforcement authority. However, will he first explain what is the material not subject to existing statutory restrictions? That would be helpful for the purposes of our debate. The clause provides that the material can be used

“in the interests of national security,”

and, as was mentioned earlier,

“for purposes related to the prevention or detection of crime,”

which must mean that there is a possibility of it being taken into court.

Subsection (3) states that one condition is that the material has been

“otherwise lawfully obtained or acquired by the authority for any of the purposes mentioned in subsection (2).”

What does that provision in fact cover? That is the first question that I want to ask the Minister, and in a sense, there is not much point in my seeking to amplify the matter until we have his explanation about the material that the provision covers.

Tony McNulty (Labour, Harrow East)

Clause 18 puts DNA and fingerprint material that is not currently subject to statutory restriction on a statutory footing to permit law enforcement use for certain purposes. That material includes—I need to determine whether this is the definitive list, because I am not sure whether it is—samples obtained covertly under part 3 of the Police Act 1997 or part 2 of the Regulation of Investigatory Powers Act 2000. For example, under the 1997 Act, a warrant may give the police power to enter someone’s home and take away property to obtain a sample. RIPA authorises both covert surveillance and the use of covert human intelligence sources. A good example is when a person under surveillance discards a cigarette or drinks container, which can then be collected covertly and a sample taken. It also includes material supplied by another law enforcement authority, which by virtue of clause 18(5) includes both domestic and foreign law enforcement authorities—for example, the French police, but I do not know why.

Finally, it applies to samples otherwise lawfully obtained in the interest of national security for the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or for purposes related to the identification of a deceased. Such material might include material obtained during a criminal investigation other than through the exercise of covert powers—for example, material lawfully provided by a body other than another law enforcement authority, such as the intelligence services of another state.

I hope that my introduction has been useful and I shall make one last point before the hon. and learned Gentleman replies to the substantive debate on the amendments. We are putting this into statute to clarify that the retention and use of such material is in accordance with our obligations under article 8 of the European convention on human rights, which stipulates that any interference with an individual’s privacy must be

“in accordance with the law.”

For covertly-acquired material particularly, the law should set out how and when such material should be used. In the same way that we have standardised the purposes for which PACE, PACE (NI) and Terrorism Act 2000 samples can be used, that is what we have sought to do here. I hope that that is a useful introduction before we come to the substance of the amendments.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister has been helpful in setting out the scope of the clause, and the example of the French police was extremely useful. I wonder at what point the adverb “lawfully” applies in qualification of “obtained or acquired” in section (3)(c). Clearly, it is lawful for the British security service or police lawfully to obtain or acquire information that has unlawfully been obtained or acquired by a law enforcement agency under another jurisdiction. Does “lawfully” apply to the source or simply to the point of acquisition by the British law enforcement authority?

Tony McNulty (Labour, Harrow East)

I think, in all seriousness, that it would be the former rather than the latter because we are signatories to all sorts of conventions and treaties, including against torture and so on. The Government’s position starts from that broadest concept when defining “lawful”.

A small point that is probably part of the confusion is that PACE and PACE-generated data and samples relate to the police station and the process post-arrest. The provision is about standardising some of the data and other matters secured outside the police station and outwith the PACE process.

The hon. and learned Gentleman was right, and I hope that my explanation was useful in exploring some of the finer details of the amendments, which I shall resist.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry if my presentation placed the Minister in difficulty. That was not my intention and I wanted to obtain clarification. As I explained, many of these amendments are probing amendments to enable the Committee to understand what we are being asked to nod through.

May I take the matter a stage further by going back to something that was raised earlier? The Minister will see that in subsection (2)(b) one reason for the retention of material is the conduct of a prosecution. That raises some practical issues. Normally, DNA or fingerprint material that is used in a prosecution will have been obtained in a statutory standard form through the PACE rules in a police station. I can see that there may be cases in which DNA has also been lifted from the scene of a crime, and a police officer or one of the forensic officers can give evidence in court to say that that is what he did so that there is the match.

If I understand what the Government seek to do in this sharing of data, it is at least to provide for the possibility henceforth that material that has been acquired by the security and intelligence services could also potentially be used for that purpose. I do not think that it needs me to tell the Minister that that raises some potentially rather complicated issues in relation to public interest immunity, and presentation of evidence in court. Is the Minister in a position to comment—or does he wish to comment during the course of the Committee—whether it is likely that material that comes into this category could realistically be used without disclosing how or where it has been obtained because that might cause difficulty in the presentation of the prosecution case? It also raises another issue.

I may have this wrong, but by virtue of being placed in clause 18 in this fashion, it also comes squarely into the category of unused material. We dealt with that when we discussed intercept evidence, which hitherto has been excluded from any consideration in the court process. What will the consequences be if unused material comes into this category? It may also be subject to the public interest immunity and therefore excluded. I just wondered whether that had been thought through by the Government and the various agencies when they drew up the measure. It may be that it provides a very powerful tool for widening the scope of the sort of evidence that may be available to prosecutors. I am not against that. I wonder, however, whether it might have the unintended consequence of creating complications in relation to this material because the material might not readily be usable in court as unused material, thereby creating difficulties. I just wondered whether the Minister could help us on that point. That is the real issue behind the probing amendments.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. and learned Member for Beaconsfield has very clearly set out the concerns that I touched on earlier. I have two issues with this clause, and neither of them are to do with the effective sharing of information and the making of better investigatory powers. The first point has just been touched on, which is the extent to which the embodiment of information from the security and intelligence services into police evidence, which may then be relied on in court or may have admissibility, causes some of the complications with which we are very familiar because of what we have been told about intercept evidence. It seems to me that that is a real possibility and one that we should be aware of before we perhaps cause an unintended consequence to the security and intelligence services.

I think that the Minister allayed my principal concerns in his reply to my earlier intervention. My second concern is that the process could be used, in effect, to launder inappropriate material to a point at which it becomes lawful and admissible, but when its provenance is rather more dubious because it has been unlawfully gained from sources outwith the British law enforcement community. It would worry me if such material became admissible in a court of law and was used for evidential purposes, and if, as a result of the procedure in clause 18, it became the property of the British police service. I think that the Minister has reassured me on that. Perhaps the hon. and learned Gentleman is about to un-reassure me.

Dominic Grieve (Conservative, Beaconsfield)

It seems to me that it is most unlikely that such material would be improperly used in court, because court procedure would ferret around to unearth whether its provenance made it unusable. However, that might well cause the very difficulties on which I commented earlier to the Minister and on which I sought clarification.

David Heath (Liberal Democrat, Somerton and Frome)

The two issues are linked—they are two sides of the same coin. Those concerns, which have been clearly expressed from the Liberal Democrat Benches, are not destructive, but constructive. We are trying to make the clause work and questions remain to be answered.

Tony McNulty (Labour, Harrow East)

I accept that. If the only thrust of the clause was to get security service data into shape to make it presentable in court—that might happen, but I shall come to that in a moment—I would share many of the hon. Gentleman’s concerns. In actuality, however, it is t’other way around. This is more about affording the security services the opportunity to utilise the national DNA database and other databases alongside their own, for investigative, disruptive and other purposes. For reasons to which I alluded earlier, I would find it very surprising—although this would not be impossible—if security service data and information were to be used in court. That would do nothing to change the evidential trail, or to challenge or change disclosure rules or the investigation or provenance of evidence before the court; both hon. Members quite properly talked about the latter. I am almost arguing the point from the other way around. The clause is about permitting the security services to do far more with police and other data for their purposes—principally intelligence and disruption—rather than the other way round, as the hon. Member for Somerton and Frome mentioned. None the less, that is important. As I suggested, it would present the security services with huge possibilities—I gave examples earlier—that currently the law does not afford them.

I have been in my ministerial role for nearly two years, so I understand that, increasingly, operationally the security services and the police are working closer together. From talking to those concerned, it is evident that there is an interesting cultural clash. Happily, for the country, that is changing rapidly. However, up until very recently, the police’s role has been to secure the evidence and evidential trail, with a view to presenting it in court, to be clear about what can be disclosed to the other side in court, to prepare their case, secure a prosecution by the prosecuting authorities and allow and afford the accused their day in court. The role of the security services, which is blurred by life-and-death considerations, is to watch individuals, to get networks together, to see what people are up to and to disrupt them—job done, bomb or explosion avoided. Of old, on that side of the equation, there was less concern about the evidential trial and what a judge might say. Equally, for the police there was less concern about what the arrest and subsequent activities would do to the intelligence and information gathering activities carried out by the service. They are going very much in that direction.

With the advance of counter-terrorism units and collocation of service and police round the country, the police are learning very sharply and quickly about the needs and desires of the intelligence services in doing their job and the intelligence services are learning more about what the police need in terms of an evidential chain to do their part of the job. This measure simply draws those two elements closer together so that the service can utilise DNA databases and other things to do its job far more readily. Were any of the information and intelligence that it receives to end up as part of an evidential chain in court, all the rules of evidence, including disclosure and provenance, would come into play. This measure will not change that in any way, shape or form.

I understand the concerns of hon. Members, but do not think that they are germane or relevant to the clause. Under clause 18, I think it is more likely that the service will utilise police databases, than that service information will be used in the courts. If it is, the normal safeguards and frameworks set down in law to protect the individual before the judge will remain. The clause will change not a jot of that side of the equation.

Dominic Grieve (Conservative, Beaconsfield)

I am reassured to hear that. I assume from that explanation that the Minister does not see the potential problem, from the insertion of the words “conduct of a prosecution”, of fishing expeditions directed at the material in the databases of the security and intelligence services. I simply flag that up. I can see that there would be ways of protecting those services from such intrusion by invoking public interest immunity. However, on the face of it, the juxtaposition of the words “conduct of a prosecution” with subsection (3)(c) seems to at least raise the possibility that that could happen. Perhaps I am worrying about nothing.

Tony McNulty (Labour, Harrow East)

I think that point is included because that possibility exists, but it is not the main reason behind the clause. I cannot in all candour exclude that as a possibility. However, that point is not in there as a device for the execution or advancement of a prosecution.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister. This has been a helpful debate. As I explained, these are probing amendments and if I flagged up an area of concern, it is very much for the Government and not for me. I beg to ask leave to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 67, in clause 18, page 13, line 32, leave out

‘or disclosing it to any person’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss amendment No. 68, in clause 18, page 13, line 32, leave out ‘person’ and insert ‘law enforcement authority’.

Dominic Grieve (Conservative, Beaconsfield)

The amendment concerns the scope of uses to which the material that is not subject to existing statutory restrictions can be put. Subsection (4)(a) states,

“the reference to using material includes allowing a check to be made against it, or against information derived from it, or disclosing it to any person”.

That is a pretty wide permission. As I understand it, it is not confined to law enforcement agencies, to those involved in prosecuting an offence or to those representing a defendant, but is open to anybody. I hope that the Minister will forgive me for saying that on the face of it, it seems as if that permission runs a coach and horses through RIPA.

Amendment No. 68 would replace the current wording with “law enforcement agency”. However, that might be too restrictive. I wonder if the Minister will help us to understand the reasoning behind choosing an expression that is potentially so broad as to allow material in this category to be disclosed to anybody.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

May I probe slightly further? Are there any statutory bodies to which the Minister wishes to refer in responding to the hon. and learned Gentleman? Would Her Majesty’s Revenue and Customs come within “any person”? I know that a Department would not normally be referred to as a person, but would it be possible to disclose this information to that kind of Government Department?

Tony McNulty (Labour, Harrow East)

Although it may be rather clumsily phrased, the point about any person relates entirely back to the reasons established in clause 2, which is where the definitions and limitations prevail. It clearly does not refer to anyone in subsection (2) who may need the material for the interests of national security.

Dominic Grieve (Conservative, Beaconsfield)

In a funny way, this brings us back to the argument about the scope of the words “interests of national security”. Clearly, if it were confined to the prevention or detection of crime, the investigation of an offence, the conduct of a prosecution or the identification of a deceased, a whole series of limiting factors is already provided which make it pretty clear who that person is likely to be. But the interests of national security is a very wide concept, as the Minister has accepted. This seems to place on a statutory footing the right of the Secret Intelligence Service to give to anyone, anywhere in the world, material relating to DNA samples, profiles or fingerprints if it is thought the interest of national security would be served by it.

Tony McNulty (Labour, Harrow East)

I take the concern. The hon. and learned Gentleman will know that in the first instance many of the people concerned, to answer the hon. Member for Meirionnydd Nant Conwy, come under clause 18(5) where we talk about what constitutes a law enforcement authority and the rather broad definition of a police force. Sharper members of the Committee will note that the one set of bodies that is not there is the Security Service and the Secret Intelligence Service.

As I understand it, the main import of the word “anyone” is to go beyond the notion of police and law enforcement agencies as identified there precisely to include the Security Service. We arrive at that point in this rather convoluted but entirely proper legalistic fashion, by referring back to clause 2(a), (b) and (c) and, by definition, once we have exhausted ourselves working through who might be the relevant agency for those subsections, we arrive at all the law enforcement agencies, all the police forces as suitably defined and everything but the Security Service and the SIS.

That is the convoluted explanation why, as I understand it in my humble, unlearned fashion, it says “anyone” there. If, God forbid, I have misled the Committee in any way, I will stand corrected. But I get no immediate sign of that from the people on my left who are not in the room, although one of them is now scribbling away. But that is what I presume is the configuration and interaction between the various aspects of the architecture. [Interruption.] Yes, that note was helpful, it simply confirmed that what I said was right.

Dominic Grieve (Conservative, Beaconsfield)

This has been very helpful. The Minister is right. As the Secret Intelligence Service and the Security Service do not come within the definition of a law enforcement authority—the point that I made to the Minister was a bad one: it may arise in the context of clause 19, but it does not arise in the context of clause 18—it must therefore follow that they could not make a disclosure to any person, although, oddly enough, the police could do so in the interests of national security, which is a much wider concept than the prevention of crime.

Perhaps I should not get too worried about that subject, but on the face of it the police and all the other enforcement authorities, including the Serious Organised Crime Agencies and commissioners for Her Majesty’s Revenue and Customs could disclose to any body in the globe if they thought it was in the interests of national security to do so.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I am just trying to be helpful in my own little way. I accept the explanation given by the Minister earlier about the words

“or disclosing it to any person”.

However, one has to wonder why clause 19 explains fully that there is a right to disclose to the security services.

Edward O'Hara (Labour, Knowsley South)

Order. We have not yet come to clause 19.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

Indeed, but I shall finish now, if I may, Mr. O’Hara. I wonder whether that takes away from the explanation given by the Minister.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman may well be right. When we come to clause 19, which I hope we will shortly, we will be able to tease that out. Clause 19 is in no way identical to clause 18, because the former is partly concerned with giving people necessary immunity to talk to the security services in circumstances that might otherwise be in breach of current laws on data protection. There are many issues here, but we can consider them later.

The Minister has provided me with the reassurance that this provision is about the law enforcement agencies—I have got that—although, as I say, it is curious that there should be such a blanket right of disclosure in the interests of national security to any person anywhere in the world. However, that may be inevitable because any other attempt at definition would leave out of the loop people who have a legitimate right to receive such information. The Minister will understand why I sought to substitute the words “law enforcement agencies” for the current wording—perhaps one could even say “individuals involved in law enforcement”—because I assume that such people are being specifically aimed at. He may wish to reflect on that or may conclude that my anxieties, or the points that I have raised, are misplaced. I beg to ask leave to withdraw the amendment.

Clause 19

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 89, in clause 19, page 14, line 36, leave out subsection (1).

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss amendment No. 11, in clause 19, page 15, line 17, at end add—

‘(8) Nothing in this section shall require a person to disclose information to any of the intelligence services for any purpose.’.

Dominic Grieve (Conservative, Beaconsfield)

The first amendment is a probing amendment. Clause 19(1) says:

“A person may disclose information to any of the intelligence services for the purposes of the exercise by that service of any of its functions.”

Again, the Minister helpfully told the Committee about the definition of national security, which no Committee member would have any difficulty with. However, what functions of the security services fall outside the definition of national security that he gave us?

I want to make my position quite clear. I am not suddenly seeking to put a spanner in the works of an important change to the law that will provide reassurance to individuals in this area. However, the Committee should be able to understand why “any of its functions” would be covered by this blanket exemption from the workings of the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000.

Tom Brake (Liberal Democrat, Carshalton and Wallington)

Amendment No. 11 has been grouped with amendment No. 89 and I would like to refer briefly to that. Amendment No. 11 is the embodiment of the concerns expressed by my hon. Friend the Member for Cambridge (David Howarth), who is not a member of the Committee but has a passing academic interest. Although clause 19(1) is clearly permissive—it says that a person “may disclose information”—this probing amendment is to seek confirmation that there are no circumstances in which, perhaps in interaction with other legislation, that permissive “may disclose information” might turn into a requirement to disclose information, and might be used in a more aggressive way to seek information, resulting in the person from whom the information is being sought feeling that it is not being extracted in a permissive manner. It is a probing amendment to reassure us that disclosure is entirely permissive, and that there is no possibility that it may be used in a more aggressive manner.

Tony McNulty (Labour, Harrow East)

If I may, I will start with amendment No. 11. Given that there is nothing in the subsection that could be taken to mean that an individual could be required to disclose information, the amendment is redundant. Although I understand the point about probing to establish that fact, the amendment is unnecessary because there is nothing in the clause that compels or requires an individual to give information to the service. I understand the point but the amendment is not required.

The substantial part of the Bill, and that covered by amendment No. 89, is more interesting. I do not say that to be offensive but the subject matter of the clauses is more interesting. They are not about deficiency in any areas of the intelligence services work as defined by the Act. Rather we have afforded, under the Serious Organised Crime and Police Act 2005 sections 33 to 35, to those who disclose information to the Serious Organised Crime Agency explicit protection from any duty of conflicts or other restriction to keep matters private. Our concern is that that facility should at the time probably have been afforded to the intelligence services too. So the difficulty now is that there is a higher benchmark and encouragement for SOCA to be able to do what it does, regarding the disclosure of information to it and protection under law for such disclosure. We should mirror those provisions for the intelligence services. That is all that clauses 19 to 21 do. They mirror sections 33 to 35 of the Serious Organised Crime and Police Act. Our concern is that the absence of similar explicit protections for the intelligence and security agencies may cause doubt in the minds of those wishing to give information that it is safe to do so. Given the vital work of the intelligence and security agencies it is important that nothing should dissuade those wishing to protect our society by giving information to the agencies, so that the agencies can carry out their vital statutory functions. It is important that nothing gets in the way of that, and that is why those clauses are offered.

Amendment No. 89 would remove the explicit relief afforded by clause 19(6) to a person properly giving information to any of the intelligence and security agencies, that is, relief from any duty of confidence owed by the person making the disclosure or any other restriction on that disclosure. Although a person could still rely on common law to justify disclosing information in breach of a duty of confidence or other restriction on the ground that it was for higher public interest purposes, that falls well short of the explicit relief provided to our intelligence and security agencies in clause 19(6), which mirrors the same relief afforded to SOCA in sections 33 to 35 of the 2005 Act.

The amendment would perpetuate the anomaly that we are seeking to correct whereby a person would get explicit relief in law from the duty of confidence if they gave information to SOCA for the purpose of preventing or detecting crime, but not if they gave it to the intelligence and security agencies for the prevention or detection of serious crime or even terrorism. Individuals fulfilling their responsibilities towards the security of society by properly providing information to such agencies should receive the relief and confidence provided in clause 19(6). For that reason, and because that relief is already established for SOCA under the 2005 Act, it is more than appropriate not to accept amendment No. 89. It challenges the raison d’être of much of the Bill. As I have suggested, although amendment No. 11 is probing, it is utterly irrelevant.

Dominic Grieve (Conservative, Beaconsfield)

That was helpful. Unless I missed it—I was briefly distracted for a moment—I still have not teased out the difference between

“the interests of national security”,

which I thought were one of the primary objectives of the Security Service and the Secret Intelligence Service, and their “functions”, and whether the two were supposed to be identical. The debate on that can conveniently be left for the next group of amendments. I beg to ask leave to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 70, in clause 19, page 14, line 43, leave out paragraph (a) and insert—

‘(a) in the interests of national security,’.

Edward O'Hara (Labour, Knowsley South)

With this it will be convenient to discuss the following amendments: No. 71, in clause 19, page 15, line 3, leave out paragraph (a).

No. 72, in clause 19, page 15, line 9, leave out paragraph (a) and insert—

‘(a) in the interests of national security,’.

Dominic Grieve (Conservative, Beaconsfield)

Here again, we have provisions dealing with information. The clause states:

“Information obtained by the Security Service for the purposes of any of its functions may be disclosed by it—

for the purpose of the proper discharge of its functions”.

In a funny way, that is a slightly circular argument. Interestingly, that appears not to include the purpose of national security, but it does include, in subsections (3)(b) and (c), the prevention or detection of serious crime and criminal proceedings. I contrast that with subsection (4), which states:

“Information obtained by the Secret Intelligence Service for the purposes of any of its functions”,

as opposed to the Security Service,

“may be disclosed by it—

(a) for the purpose of the proper discharge of its functions,

(b) in the interests of national security”,

which apparently does not apply to the Security Service. I do not wish to appear too nosey on the subject—maybe there is something that I ought not to know about, or maybe it is completely innocuous—but that strikes me as slightly odd. Will the Minister clarify why the test for the Security Service is different from that for the Secret Intelligence Service?

Can we also have some clarification of the difference between disclosure in the interests of national security, which is the primary function of both services, and the blanket expression “discharge of its functions”?

The rest of the debate is in Hansard.