Clause 3
Counter-Terrorism Bill
11:15 am
Dominic Grieve (Shadow Attorney General, Law Officers; Beaconsfield, Conservative)
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.