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My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
This is a probing amendment to try to ascertain the extent to which new powers to remove documents are necessary following arrest. Most of the searches covered by Clause 1 already allow for documents to be seized. I give as examples Section 43(4) of the Terrorism Act 2000 and paragraph 1(1)(c) of Schedule 5 to the same Act. Are there shortcomings in that Act that these new powers are designed to address?
I understand that it could take time to ascertain whether a large bundle of papers or a computer drive might need to be examined away from the scene of an investigation. I do not take issue with the principle, but I would like to be satisfied about the extent of the powers and whether they are really necessary. I would be grateful if the Minister could give an example of when the powers might be used. We see this power principally being exercised against those who are being searched but who have not been arrested, because it would allow an opportunity to remove material from a person or premises to ascertain whether the contents reveal grounds for arrest. We are uncertain why the extended powers are necessary post-arrest.
Anyone arrested under Section 43(1) of the Terrorism Act 2000 can have property seized. Similarly, if there was a need to search premises after a person had been arrested, we presume that there would be an application to a justice of the peace for a premises search under paragraph 1 of Schedule 5 to the Terrorism Act to obtain evidence. The current period of pre-charge detention permitted for terrorism offences is, of course, 28 days, which the Bill seeks to increase to 42 days. This would allow plenty of time to sift potential evidence. Therefore, we are unsure why this power needs to be applied post-arrest. I beg to move.
I appreciate that this amendment is probing; a number of other amendments will be in the same category. The amendment asks about subsection (1)(b), which states that under the Terrorism Act a power to remove documents for examination could be exercised on the suspicion of someone being a terrorist. Today we will be looking for a lot of reassurance as to how much activity can take place under this legislation when there is no proof of an offence having been committed, only the suspicion that one might be. In supporting the amendment, I draw attention to the fact that we will consider more amendments aimed at picking out the details of this matter.
The power to remove documents can be used only during a search that has been carried out under terrorism-related search powers listed in Clause 1(1). All these searches allow for documents to be seized during a search, but thresholds are applied for such seizure. The type of searches mentioned in Clause 1(1)(b) are those carried out under Section 43(2) of the Terrorism Act 2000, which allows for the search of a suspected terrorist on arrest. This search allows for seizure of the items on reasonable suspicion. It is important that the power to remove documents is attached to this power, because the threshold for seizure may not be met in relation to a document whose nature is entirely obscure—for example, when something is written in Arabic and none of the police can speak that language. The potential outcome of that could be that the police do not get to examine and seize a document that may be important evidence, which is why the power of removal should attach to a search under Section 43(2) of the Terrorism Act. That is why I ask for the amendment to be withdrawn. I hope that that answers the questions of the noble Baronesses.
It does to an extent and I am grateful to the noble Lord for responding in that way and to the noble Baroness, Lady Hanham, for her support. We might need to look at this further in the light of what the Minister has said. I shall withdraw the amendment for the moment, but we may bring it back if he has not satisfied our concerns. I beg leave to withdraw the amendment.
The power to search premises and seize property is draconian and severe and can be used only when there are more than reasonable grounds for suspicion. As the Minister said, it may not be very clear as to whether the documentation is relevant to what the police are looking for or whether it is completely irrelevant.
The definition of the word "constable" in any dictionary is the lowest rank in the police service. Would it not be more appropriate, as is made clearer later in the Bill, if the person who can make a decision to take those documents was not of the lowest rank but only someone with authority? We all know about warrants, entering premises and taking property out. In passing, I assume that in this situation a warrant would have to be sought, or perhaps that is not the case and under this legislation the police can just enter property without a warrant.
Whichever way we look at this issue, it concerns a major event. If someone is suspected of terrorism, the police can go into a property and a decision can be taken to remove documents or equipment. Our view is that that decision should not be taken at a level where someone might not quite understand what they are doing; the decision should at least be backed up by someone of a more senior rank. I beg to move.
I strongly support the amendment. In fact, over the many years that I have been dealing with police issues, I have always asked for the office to be of a higher rank than the Government have proposed. I have failed every time to get the Government to accept that, so when I saw this amendment I was very pleased to be able to support it.
Young and new PCs, who admittedly have gone through their training, could be in the position of going into premises and searching for these documents, but they may well not have the knowledge to ascertain whether the documents are prime articles for removal. It is important for someone with greater experience to go in and say, "Yes, this is a document that should go somewhere else". Therefore, in this part of the Bill there is a big issue about training PCs. Again, I would say that inspector is certainly the lowest rank that should be expected to work on this aspect of removing papers. It is important that we support the amendment.
I am somewhat confused by this interesting amendment and have been trying to think about the practicalities and what it would be likely to lead to. It would mean that in a complicated operation perhaps involving a number of properties and a number of officers, every time a single piece of paper was found, someone would have to find the inspector, who might or might not be on site, to get it certified. This begins to look like overbureaucratisation of the police service, to which I thought the noble Baroness opposite was totally opposed. Here, we would be creating a bureaucratic procedure in the middle of an operation.
What is more, the proposal seems to be an unnecessary requirement because Clause 5 says that under these circumstances a document can be retained for only up to 48 hours and that beyond that a chief inspector has to give the authorisation. Why involve an inspector at first and then, if the operation goes beyond 48 hours, which seems to be the point at which people need reassurance that everything is being done properly, a chief inspector? I was completely bemused by that until I realised that the Opposition have tabled an amendment to delete the 48-hour requirement. Presumably they are saying that they want the bureaucratic bit right at the beginning but, once that is over, the bureaucracy is not needed. If that is the explanation, I understand it, but I still think that it is rather fatuous in the context of a complicated operation.
My noble friend Lord Harris has raised one of the issues that I was going to mention. I can understand the noble Baroness's nervousness about this whole area, but there are two points of concern. The first is the practical one: an officer of at least the rank of inspector might not always be present at the scene or during the searches listed in Clause 1(1). I cannot say that an inspector will not be there but, even if he is, the operational implications in what, as my noble friend says, will very likely be a fast-moving situation will be to slow down the whole process, require two officers rather than one to make a decision and significantly remove the operational discretion of the constable or sergeant who is on the scene dealing with the individual. I always think in terms of mission command: these people are well trained and they should be given those sorts of responsibilities to deal with quick and moving situations. That is a day-to-day operational function of the police service. We are lucky that we have a well trained police service to do that.
Secondly, the safeguards in the Bill and the requirements set out in the draft PACE Code of Practice B regarding the exercise of this power provide that, if a document is removed, any decision to retain it for more than 48 hours, as has been said by my noble friend, must be authorised by a chief inspector. The actions of the officer would be subject to the recording and reporting requirements in the Bill and subject to scrutiny by supervisory management. Additionally, the actions of the officer would be, if appropriate, subject to the independent police complaints process and any relevant civil litigation or criminal action. I think that we have safeguarded this in those terms and I ask that the amendment be withdrawn.
I am sure that the noble Lord will survive. I thank the Minister for his reply. I am still not convinced that someone who goes into premises looking for documentation, which may be very unusual, and who has to require a fairly detailed search would be able to remove that documentation without a senior inspector being there. Only in July did Her Majesty's Inspectorate of Constabulary warn that even police sergeants often lack the necessary skills to do the leadership job effectively. Do officers dealing with terrorist offences have specialist training? Perhaps there is an extra arm to their initial training. In general, I think that someone of experience should do that job. I await the Minister's reply on specialist training.
The noble Baroness raises a good point. I believe that there is such training, but I shall have to confirm that and get back to her in writing.
We feel a reasonableness test is appropriate here. There appears to be a blanket power for a constable to remove any documents which he cannot immediately identify. This touches on the previous amendment. We feel that a constable should have some idea that an item might be of interest. Reasonableness has always been included in such Bills in the past, so why not now? I beg to move.
I have one small question to fill my small brain with information. Is this procedure different from the one for searching the premises of someone accused, for instance, of murder or another very serious crime, and, if so, how and why?
In support of my noble friend, who made some very good points, I want to draw the Minister's attention to what his colleague Mr McNulty said in the other place. He did not say that it would remove the scope for the police to go on a fishing expedition. This is where I think that the noble Lord, Lord Harris, is perhaps—of course I hesitate to use the word "naive", given all his experience. The Minister said:
"That will limit, in this very serious area, the scope for the police to go fishing".—[Official Report, Commons, Counter-Terrorism Bill Committee, 29/4/08; col. 170.]
That does not disallow the possibility of fishing. Whether a search is a fishing expedition will rest on reasonably thinking that the evidence that the police remove from the premises of people who, we must remember, will in all likelihood prove innocent—I am sure the Minister can tell me the proportion of people searched and proved innocent and the proportion of those arrested and charged—is of such a nature. Although this may seem a small amendment, it relates to a serious issue.
The purpose of this amendment is to ensure that there are sufficient safeguards to stop police officers going on so-called fishing expeditions. We do not intend that they should go on fishing expeditions. I hope that noble Lords will take account of draft Code B of the PACE code, which accompanies these clauses and was relaid in the Library yesterday. The draft code makes explicit that the power should be used only when essential and that officers must not remove more material than is absolutely necessary. It makes clear that the removal of documents can have serious implications for their owners, particularly when they relate to business or other occupational activities, such as journalism. One can see how, on occasion, might happen.
I hope that noble Lords will be reassured that we have set out requirements that, combined with the safeguards in the Bill, will hold the police to account, set out the rights of and protections for the individual and ensure that appropriate recording and reporting requirements are in place to protect the individual from arbitrary interference.
The difference from murder inquiries is that special powers are required for terrorism searches because of the severe consequences of terrorism. Specific powers are required to address this serious category of crime. It is a wider power, and there is no need for suspicion.
I hope that, given the safeguards I have talked about, the noble Baronesses and the noble Earl are reassured and that the noble Baroness will withdraw the amendment.
I am most grateful to all noble Lords who have taken part in this mini debate on an important issue. The Minister said that there is no intention to have fishing expeditions. That is the intention. Intentions may be good, but they may also work in other ways. These powers are to be used only when they are essential, but "essential" is another word I have difficulty with because who decides what is essential?
I would be most grateful if the Minister would reflect on the concerns being expressed by noble Lords from all sides of the House before Report, when we may come back to this. I beg leave to withdraw the amendment.
This is also a probing amendment. We seek to find out how far the police can go to extract material potentially related to a terrorism offence. The subsection refers to information in electronic form—which can, presumably, only be in computers or, at the most, a rather grand BlackBerry. With regard to something that the police expect to be on a computer, how much co-operation can they expect or require from someone whom they suspect of an offence to get that information? Will the person be required to hand over the password, or will the police just be able to seize the electronic equipment and go off to try to break the password? If the owner refuses to give the information required, what are the penalties likely to be? Is it an offence to refuse to give the police information that would help them to get information from a computer, either under the Bill or under any other Act?
That is quite important because you could have a very obdurate person—no one will be very happy about having people stamping over their premises—who becomes very obstructive. Are the powers somewhere else and not translated into the Bill, or are they not in the Bill so that we need to look at what could be required? I beg to move.
I support the noble Baroness's amendment and can envisage all sorts of circumstances where it may be useful to include it. The requirement supposes that the person on the premises is able to produce the document in a visible and legible form. That person may not have the required password, and the equipment required to produce it in a visible and legible form—for example, a printer—may not be there or may not be working. This practical amendment is worth exploring.
The noble Baroness raised some interesting points. As was said, this is about information that could be stored in computers on a hard drive or in a digital camera or something like that. It allows one to say, "I would like to have this document downloaded". The police are not allowed to take away the equipment—the camera or whatever—but they can ask for a specific document to be downloaded from it. They can take information that is still encrypted, but they cannot ask for the encryption key to break it. If the person refuses, for example, to download a bit of information or to assist the officer in accordance with the Bill, they are obstructing an officer and, as the Bill says, they face up to six months in prison.
Is this not self-incrimination? It goes against all our traditions to put someone in prison for six months for failing to produce something that he may feel will be detrimental to him and over which he has a guilty conscience. I recall a case in the ECHR where financial people refused to answer questions; the court found that human rights law had been breached. Are we not going down a very dangerous road when we start to link these sorts of things?
I ask the Minister to define "they". Is it the person who owns or has used the computer or any member of the household who happens to be in when the police call?
To answer the noble Baroness first, it is the person being searched, the person who is using the equipment and is suspected of terrorism, not the householder. There is also the question of whom documents should go back to; we will come to that when we discuss later amendments.
On the question of not releasing a bit of data, if suspected terrorists are holding close to themselves a map or some other document that is annotated in Arabic and will not give it up, that is obstructing the police. Under this Act, they can suffer the penalty of up to six months' imprisonment. That is a perfectly valid and sensible way forward. We need to investigate these cases properly, and we now know that so much data are stored electronically and that terrorists are using more complex electronic means more and more. It is therefore absolutely appropriate that we should be able to demand this, because it is an important part of our ability to protect our nation. On the basis of what I have said, I ask whether the noble Baroness will be willing to withdraw her amendment. It is vital that officers can examine electronically stored material for the reasons that I have given.
I do not think that the provision mentions who may be required to provide information; it states that the constable may require information, but it does not seem to focus on who may be required to provide it. Someone who is not the subject of arrest might well have control of the computer. Is this intended to apply only to the person searched?
It is not intended to apply totally just to that person. If there is a lack of clarity on this point, I will look at it in a little more detail and come back to it at the next stage. I would like it to be absolutely clear.
We have been able to dig at a little nugget here. The comments made by my noble and learned friend Lord Mackay and the noble Baroness, Lady Miller, about who is being searched and who has responsibility open the door more widely. The legislation is not clear; it just relates to a search. It may be a search of only one person or of no one, but there might be 15, 16 or 100 persons. Who, then, is responsible for providing information? It is almost certain that we will return to this matter to ensure that we are clear about the position on searches and who is required to give the information. For today, however, I beg leave to withdraw the amendment.
In the interests of clear legislation, I shall read subsection (4), on page 2, which 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".
I am sure that we could spend a lot of interesting time trying to unravel that, but I am afraid that legislation should at least be clear. If it is not clear to the people who are making it, it will be very unclear to people subsequently. I had no idea how to amend it because I was not quite sure what it meant, so let me go on to discuss what this subsection is about.
Once the material has been discovered, what happens to it on examination? This subsection seems to be trying to say that any matter discovered should be treated as though it had been discovered in the initial search. Does this mean that if a computer file is decrypted and the police discover that it relates to a non-terrorist-related offence, they can act on that—they do not have the offence before them but suddenly out of the woodwork comes the fact that another offence is being created—or do they simply have to pretend that they never saw it: this material that they have coughed up in the process of a search for terrorism and which actually relates very much to someone who has conducted a crime of drugs elsewhere? What do they do with that information? Do they hold on to it and say, "There is a Chinese wall down here, so I can't see it", or are they entitled to put it into the hands of those who might be investigating the other complaint? If they can act on it, we have the possibility of terrorist legislation again being used inappropriately and not for the matters on which it has been enacted. If they cannot act on it in that way, we are asking officers, who otherwise may have a wide duty, to forget what they have just seen and do nothing more about it.
These provisions set up a precedent of allowing exceptional legislation for terrorism which in a few years the Government could argue should be extended to other offences. There are many offences involving evidence which is encrypted or in a foreign language—we all know about the child pornography pictures, trafficking and so on—but this legislation is about terrorism. Nowadays there is a nasty habit of people forgetting where legislation starts. It sort of creeps under the door like a flood and is used elsewhere.
The Minister may want to look at Clause 1(4). Although I have drawn his attention to it with some amusement, it is undoubtedly some of the most incomprehensible legislation I have read. Having, I hope, unravelled what it is about, perhaps the Minister would be kind enough to tell me more about these Chinese walls. I beg to move.
I have a great deal of sympathy with my noble friend's opening remarks. It takes quite a bit of time to unravel quite what this provision seeks to achieve. Are we not in danger of creating some potentially rather oppressive legislation? Clause 1(2) states that a constable can take a document away,
"for the purpose of ascertaining", whether he can take it away. When he finds that he could have taken it away, his powers of seizure kick in and he does not have to return it. That is my understanding of the legislation. Why is it necessary to have subsection (4)? What is sought to be achieved? What safeguards would normally apply which are sought to be avoided in this legislation? We have to be very careful not only that the legislation is clear but that it does not, no doubt unwittingly, lead to possibilities of oppression.
I have considerable sympathy for what the noble Baroness, Lady Hanham, said at the beginning of her speech. At about 4.30 am I was reading these provisions in some detail and that was not a good time to hit this subsection. I have asked for a Speaking Note to explain subsection (4), so perhaps I can outline what it is trying to say. I absolutely take the noble Baroness's point that it has not been put in the clearest terms. Perhaps we can take that point away and look at it. I think that we should be doing what subsection (4) proposes but I am not sure that it has been proposed as cleverly as it should have been.
The provision means that if the police find on examination that a document meets the test for seizure, then it can be seized. Let us say, for example, that the police take away a document in a foreign language as part of a search to which this power applies and find on examination that it is a bomb-making manual or whatever. They can seize the document regardless of under which specified search power the original search was conducted. Subsection (4) is needed because seizure powers arise on and during the search of premises or persons. The fact that a document has been removed to another place for examination will mean that the document is no longer on the premises or the person searched, so the seizure powers will no longer be extant.
Subsection (4) accordingly provides that those powers of seizure will still apply if the documents removed are subsequently found to meet the test for seizure. The amendment would remove that provision and in effect cause legislative uncertainty about whether a document can be seized following the exercise of a power to remove documents for examination. We might end up with a situation where a document was found following examination to be evidence of a terrorism offence but there was no power to seize it because the seizure powers apply only during the course of the search.
This explanation seeks to unpack what the subsection is trying to say. Legally, we could not seize the document because we were not actually on the premises. That is where the powers would lie without this provision.
As to whether the evidence could be used on another offence, if they found, for example, that a download from a computer had something to do with child pornography, that download could be seized although the search was conducted for a different purpose. That can be done under Section 19 of PACE. I do not believe, however, that this provision will result in the inappropriate use of power. The police have to exercise reasonable discretion within the terrorist context, as always.
I do not know whether I have responded to the point made by the noble and learned Lord, Lord Mayhew, but I hope that I have covered the issue. I would therefore be pleased if the amendment could be withdrawn.
Like many others, I found this a pretty puzzling subsection; but the noble Lord's explanation certainly satisfies me that something along these lines is required.
I do not think that I would agree with the noble Earl; that is not what it says. We would not be seizing anything illegally. If we take a document away from a place where we have been making a search, where the powers of seizure normally apply, then, in law, when it is wherever we have taken it to, the powers no longer apply and we cannot seize it. This provision means that we will be able to seize it. That is what it is meant to mean. I agree with the noble Baroness that it is not the cleverest wording, which is why I wanted to unpack it. I believe that we need this power.
I absolutely think that we should do that. I am always wary of saying the words "simple sailor", but I was certainly taxed by it.
Instead of what is set out in subsection (4), would it not be easier to draft something along the lines of what the noble Lord has said, thus explaining the reason for including it; namely, that the powers to seize which are available during a search should be available in respect of a document which has been removed under the subsection in question?
The noble and learned Lord has come up with a very good answer. Perhaps I may take this away and see what we can do to make it more easily understandable.
I thank the Minister for that clarification. It would probably make this legislation rather better if the subsection were amended, so perhaps the Minister will be kind enough to do that of his own volition, otherwise we will have a go at doing it for him by the next stage. I am grateful for the explanation because it makes it clear that the powers are to retain documentation which is taken away from the premises during a search. I fully understand that the powers are required, but it would be better not to have a muddle later on when someone is trying to interpret the provision.
I also hear what the Minister says about material found that is not related to terrorism then being able to be passed to other branches of the services in connection with other offences. I should like to take that away and think about it, but it seems to me that to leak terrorism inquiries into other areas may not be entirely satisfactory. For today, however, I beg leave to withdraw the amendment.
Our debate over the past hour or so has opened up some of the tensions that will apply to the first part of Clause 1. I am grateful for the explanations that have been given, but the amendments have highlighted a worrying tendency for the Government to introduce exceptional powers to deal with terrorism and then for those powers to be applied, perhaps inappropriately, in far less justifiable circumstances.
There have been many examples recently of local councils using RIPA and terrorism legislation for purposes completely different from the ones that the legislation was ever set up for. We have to guard against legislation being used inappropriately at a date long after anyone who had anything to do with it is still dealing with it. We need to ensure that the Government implement safeguards to prevent this legislation from going the same way.
The police in Northern Ireland enjoyed exceptional powers because of the long-term troubles. As the situation there has become normalised, the Government have decided that these provisions should be saved and the process extended to England and Wales. The police in England and Wales have not asked for these powers; the Northern Ireland police did not want to lose them. Using this as an example, the Government's impulse always seems to be to level up and to choose the most draconian solution.
Given that the Government's tendency is to gold-plate, what is different about these provisions and the ones that apply in Northern Ireland? Have the Government directly translated the rank of officer and the length of time allowed—to go back to the earlier amendments—or have they quietly expanded the provisions because they think that they might be useful? Many of the powers in the Bill, as we understand it, are taken from the Northern Ireland legislation. Is that now appropriate within the terms of Clause 1?
I am grateful to the noble Baroness for allowing us to reflect on the whole of Clause 1. I again raise the question that I asked the Minister during the debate on one of the amendments about the proportion of people who have been searched but who are innocent, as opposed to the number of people who are prosecuted under the terrorism legislation. Obviously a high proportion of innocent people will end up being searched. Unless those searches are seen to be fair and conducted in an irreproachable manner, the likelihood is that that will cause tremendous upset in communities. That is of deep concern to us.
The Minister referred to the fact that officers might be looking for terrorist material and instead find child pornography. That is an emotive subject and the Committee would probably agree that, with that degree of seriousness, the police might be justified in taking action. However, it is much more likely that they would find that teenagers in the house had been downloading music material to listen to or films to watch. That is illegal because it contravenes copyright law, but for the police to take action on it after searching under terrorism laws would be a difficult step to take. As I say, it would be counterproductive. I am sure that the Minister is aware of the implications that that kind of behaviour could have for community relations.
Clause 1 has rightly been closely scrutinised and there is sufficient material to come back with on Report. I am grateful to the Minister for saying that he will take away and look at certain matters, because there is room for improvement.
I have sympathy with a great deal of what both noble Baronesses have said. We have to be careful that we do not move towards a Big Brother-type society. I know that the Committee is conscious of that; I certainly am when I am sitting at my desk in the Home Office looking at these issues. To digress slightly, I would like to look at the totality of all legislation and the possibility of squaring some of it away, but that is beyond what we are talking about today.
We have a large number of safeguards in the Bill. It is proportional to what we want to achieve, and what we are trying to achieve is valuable for national security. The noble Baroness, Lady Miller, asked me about the numbers that have been stopped and searched, but I am afraid that I do not know that off the top of my head. I shall get back to her in writing.
I suppose that it was very naughty of me to use the example of child pornography. It is desperately emotive and you think immediately, "Wow, that will get everyone going". The noble Baroness spotted that one. It would be wrong if the police ignored serious things like that, but there is a certain proportionality with the police. They use their judgment and generally they are very good at it. She gave the example of downloading music; I would hope, although I would not want to put it in legislation, that they would use their common sense in that case. She is right that, in terms of our Prevent Strategy, these things have an impact on, for example, Muslim society. We have to be careful and we have to be certain that we are not doing things that are wrong, biased and unfair.
With regard to translating across from the Northern Ireland legislation, I understand that the police in this country expressed their support for that during the consultation. I do not think that they were banging the drum and demanding it, but they expressed their support for it. As the noble Baroness, Lady Hanham, says, the Northern Irish police were keen that this should still be there, for the good reasons that we know within the Province. It is therefore right that we do it in this way.
As I have said, in recognition of these wide-ranging powers we have added a substantial number of safeguards, found in the clauses that include protection for items subject to legal privilege; a requirement to make a record for the removal; strict time limits for the retention of documents; access to the documents and the right to request a copy of them by the specified persons; and prohibition of the police photocopying the documents unless it is to supply a copy after a legitimate request.
We have also proposed, as I mentioned before, amendments to the PACE Code of Practice B, a revised version of which was put in the Library yesterday. In those amendments we set out how the police should discharge the power. They include a paragraph specifically stating that officers must be careful that they exercise these powers only when it is essential and that they do not remove any more material than is necessary. In addition, the draft code makes it clear that officers should be sensitive in the removal of documents, particularly those that affect individuals' businesses or professional life, journalistic material and that sort of thing.
This power is important. It will allow the police to gather as much information as possible during terrorism-related investigations. That is for the good of the nation. It will make us safer, with all those caveats for looking after and safeguarding people. I therefore think that Clause 1 should stand part of the Bill.
I thank the Minister for that reply. I make it clear that we are not trying to undermine this legislation; we want to ensure that it is used appropriately and that people are not caught up in these investigations who should not be. That is not to say that we do not have sympathy with some of this; we appreciate the problems. I am grateful for his explanation.
moved Amendment No. 6:
Clause 3, page 2, line 44, at end insert—
"( ) 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."
The safeguard of legally privileged documents is fundamental to our legal system. The amendment is about the difference between the proposals and the operation of the Criminal Justice and Police Act 2001 in relation to 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 who are required to carry out the determination or separation, and the apparatus or equipment that is necessary or appropriate to carry it out. Can the Minister explain why those caveats are included in the 2001 Act but not in this Bill? I beg to move.
I support the amendment. Clearly the catching up of legally privileged documents within such a search could prejudice what the police are trying to do. There must be some way of separating out legally privileged documents or material so that that does not happen. The noble Baroness is right that there needs to be some clarity. It comes back to my Chinese walls and the question of how much you are allowed to remember and how much to forget of documentation that you are not entitled to have seen.
The noble Baronesses have both raised an important point. We understand the need to strike an appropriate balance between the protection of legally privileged documents and the ability of the police to conduct effective searches as part of their terrorism investigation or, indeed, as part of their investigation of any offence. I think that the clause maintains that balance.
I appreciate that, as the noble Baroness mentioned, the amendment seeks to achieve safeguards similar to those already contained in Part 2 of the Criminal Justice and Police Act 2001 in relation to determinations and separations under Sections 50 and 51 of that Act. However, it is important to note that the factors in this amendment, lifted from Part 2 of the 2001 Act, do not apply to the provisions in that part on legally privileged information. The provision in Clause 3 is largely modelled on that in Section 54 of the 2001 Act.
While these factors or criteria may be used when considering whether legally privileged material that has been removed can be separated, we should not seek to prescribe the circumstances for separation in relation to terrorism-related investigations, as we would not do in relation to the seizure of legally privileged information under the more general powers in Section 54 of the 2001 Act. Instead, we should allow that to remain at the discretion of the officer in charge of the investigation. Therefore, I do not wish to have criteria specified on the face of the Bill that would adversely impact on the effectiveness of that terrorism investigation. For those reasons, I ask the noble Baroness to withdraw the amendment.
Does that mean that if, in a search, an officer—we are talking about a constable, not an inspector—comes across information or correspondence between the person whom he is searching and their legal adviser, he is still entitled to pick up that material and take it away while he thinks about it? That would seem to breach all the protocols for legal material and access to a solicitor.
The way that the noble Baroness has described the situation is not correct. If a document clearly showed a dialogue between the person and his lawyer, the officer could not take it away. If he takes something away that is written in Arabic and then finds out when it is translated that that is also the case, it cannot be looked at. However, if a document contains a letter between the lawyer and his client and underneath it are some annotated maps, for example, the police can separate those out. They can take that document but are not allowed to use any of the legally privileged data when those are being examined at the police station. They have to be separated out and the other material can be looked at. That is to prevent people from sticking a covering letter between them and their lawyer on the top of a document so that it cannot be taken away. The legally privileged documents are not allowed to be used in any way whatever—indeed, they are not allowed to be taken, if it is clear that that is what they are.
It is a long-established principle of search and seizure that police may only seize documents covered by the terms of the search warrant or relevant statutory power. For police to take documents outside of the terms of the warrant or statutory power is not only unlawful but also very likely a serious violation of the owner's right to privacy, especially if the documents are legally privileged. Despite these very well established principles, Clauses 1 to 9 introduce a series of sweeping provisions to enable the police to seize documents as part of a search, even though they do not know whether the documents are lawfully part of the subject of the search.
The power to remove legally privileged documents is an especially disproportionate interference with the right to respect for privacy under Article 8.1 of the European Convention on Human Rights and the common law right of access to legal advice, including the right to communicate in confidence under the protection of legal professional privilege. Given that there is no power to take away legally privileged material by way of an ordinary search warrant, other than under the exceptional terms of Part 2 of the 2001 Act, and given the greater safeguards of Part 2, we on these Benches think there can be no justification for allowing such a broad, unfettered power.
I touched on this in my previous answer. I must make it clear that legal privileges are rightly there to protect lawyer/client confidentiality. That is why this clause provides that a document may not be removed or retained if it is subject to legal privilege. If a document is clearly subject to legal privilege, it cannot be taken away or retained. The only exception is when it is not reasonably practical for the legally privileged item to be separated from the rest of the document. That can happen when there is a mixture of stuff, some legally privileged, and some stapled on. It could be something which includes correspondence with a lawyer but contains lots of other information. This is very infrequent but we do not believe it should stop the police from examining the remainder of that document, which is not subject to legal privilege. Where that is the case, the whole document may be retained but the legally privileged information must not be examined except to see that it is legal. If it is, it cannot be looked at, unlike the rest of the document.
This is a standard provision. There is a similar provision making an exception for the return of privileged items where they are contained in other property in relation to all statutory powers of seizure exercised by a constable. That is set out in Section 54 of the Criminal Justice and Police Act 2001, on which Clause 3 is based.
This is not an erosion of protections afforded to legally privileged material; rather, it is a sensible provision in response to a practical difficulty that we know can occur. Clause 3(5) provides that where a removed document containing legally privileged material is retained because it is not reasonably practical to separate the parts, the legally privileged sections cannot be examined except where it is necessary to facilitate the examination of the rest of the document to see what is not legally privileged.
This does not change the protection of legally privileged material and it is not in the interest of the police to examine such material beyond what is allowed by the provision. Any information taken or derived from a legally privileged document is likely to be ruled inadmissible by the trial court and could allow the defence to raise abuse-of-process arguments about the safety of the whole trial. The police are fully aware of this. Inappropriate examination of legally privileged documents by the police does not happen at present in relation to seized documents, and I see no reason to suppose that it will happen in relation to the exercise of the power.
It is clear that we must strike the right balance—I understand why the noble Baroness has raised the point—between the importance of thorough searches in terrorism cases and the proper protection of legally privileged documents. The clause strikes that balance and is not an erosion of protection.
I am grateful to the Minister for responding in the way that he has. It is a little bit like living in a parallel universe: you can look at part of a document and might find something in it that is not to be looked at—and, gosh, you had better hide it behind your back and make sure that you do not look at it because it is privileged. You take it away, but you have to be very careful. Being able to looking at some and not all of a document, and saying that part of it is privileged, is difficult to try to understand. We oppose the Question that Clause 3 stand part of the Bill simply because of that difficulty. However, the Minister has gone some way to reassure me. I still think that it is a very difficult area and we may come back to it.
In moving the amendment, I probably risk the noble Lord, Lord Harris, accusing me of being bureaucratic. The intention behind it is further to explore how checks as to what it is reasonable to remove will take place. The amendment suggests that the constable should state the reason a document is believed to be material to an investigation. Some documents will be self-evidently material, whereas it will be hard to see why others could be. It is for that reason that I have tabled the amendment. I refer the Minister to our discussion some moments ago about confidence among members of the community that only what is absolutely necessary for the prevention of terrorism is being done and their being assured that the powers that we are going to give to the police are exercised in the most scrupulous way. This is a probing amendment; it is not intended to produce more bureaucracy for police undertaking an investigation. However, I would like to hear from the Minister just how those fine judgments will be reviewed and kept under scrutiny, particularly in the cases of those people who prove to be innocent but who may have made minor transgressions. I beg to move.
I support the amendment, at least in a probing capacity. It bears upon concern that we have already ventilated today that legislation should not be oppressive in its application. Fishing expeditions into other people's documents have always been regarded by the law as potentially oppressive. To be legitimate, there must at least be reasonable grounds for believing that they are necessary in the interests of justice. Those grounds should be disclosable.
There is a good example of the formulation that the amendment argues for, which adds to the requirements of the record of removal, in Clause 24(2), which deals with a report of an operational need for further extension of a maximum period of detention. The report has to be made by the Director of Public Prosecutions or others and must state that,
"each of the persons making the report is satisfied that there are reasonable grounds for believing that the detention of one or more persons beyond 28 days will be necessary for one or more of the purposes mentioned in subsection (3) below, and ... give details of the grounds for that belief".
I support the formulation in that context. The same reasoning justifies the insertion of the text which is the subject of the present amendment. I hope that that may commend itself to the Minister.
I am grateful to the noble Baroness, Lady Miller, for suggesting a line of argument on this. I was not on this occasion going to oppose her amendment on the basis that it was over-bureaucratic, but, to use the words that she used earlier, because it was perhaps naive.
I am not quite sure how, in the course of an investigation, it will be appropriate for police officers to say exactly how a particular document might fit into a line of inquiry which may have been generated by intelligence, or something which has happened which would not otherwise be known to the person who is being investigated but might materially alter the way in which they behaved were they to know that. The amendment seems to hand somebody who may turn out to be a potential terrorist substantial information about the cause, background and how much information that the police already have.
The danger of the amendment is that the reason given would be of such extraordinary generality and banality that it would be meaningless. It is clear that to state the reason as being that the constable concerned thought that it might fit in with the general line of the investigation which was taking place would not serve the purpose. If the noble Baroness is concerned that there should be the possibility of an audit after the event as to whether the powers have been exercised reasonably—I can see that that is legitimate, because there have been instances described of what sound like bizarre things having been seized—she is looking for something that is not part of a record which can be given to the person from whom the documents have been taken, but something which is required to be recorded so that, in any subsequent inquiry, it could be looked at. The danger of that is that one is creating another form of bureaucracy, whereas what is intended is something which is handed over at the time.
We must be realistic about the circumstances; we must be realistic about the widespread concerns about the extent to which the police have to fill in forms. The clause contains a requirement that people receive a proper receipt for documents that have been taken from them, with a fair degree of detail about the circumstances in which it has happened. However, to suggest that, at that stage, in that document, the police should explain how their investigations are going and what they are looking at is taking it a step too far. If there is genuine concern that the police are not using the powers reasonably—I would have thought that other amendments and discussions might have covered that—what the amendment proposes will not resolve that problem because it will lead to reasons being put down which are so general as to not mean anything. If one is really concerned to do that, some other form of record is needed, but it would create a new bureaucratic process. I wonder whether that is quite what the noble Baroness intends.
As I understand Clause 4, it deals only with the removal of a document under Clause 1(2) and not with seizure. The only object for removing a document is so that it may be examined in another place; in other words, for some reason it is not suitable to examine it there and then and you have to take it somewhere else to have it examined. Therefore, when it says in Clause 4(3)(b),
"specify the object of the removal", the only relevant object of the removal is for the document to be taken to another place for examination. At the moment I do not see any further scope for more than that. It does not have to say that the document will be useful on examination, because, apart from anything else, in some circumstances it would be impossible to tell that until you have examined the document. Therefore, if the policeman making the search thinks that the document requires to be examined further in a way that he cannot do there and then, it must be taken somewhere else. It is only after that that the question of seizure arises. Of course at that stage the question of whether the document will be useful in the progress of the investigation becomes relevant, but the results of the examination will be known by that time.
The Government understand their obligation to preserve the balance between the rights of citizens and the investigative tools available to the police. In that context I acknowledge the concerns of the noble Baroness and the noble and learned Lord. I restate that the police will not use this power to seize any documents they want. That is not what we aim to do, and I hope that the way the provision is phrased will stop that happening, with all the safeguards—I have covered these before and will not go through them again—that we have put in place against misuse of power and PACE code B.
We do not expect officers to seize all materials simply, for example, because they are in a foreign language. We expect them to use their common sense over that. I give a silly example: if it is Hello magazine written in Arabic, I would hope he would use his common sense and not take it. They need to use their common sense when doing this. However, as the noble and learned Lord says, the officer is already required to state the object of the removal. It is removed so they can check it through and then make a decision about seizure. I think that he might put on his form that he has taken it as it was written in Arabic or something that he cannot translate. That might be added to the form.
I had not thought very deeply about an audit after the event. My noble friend Lord Harris gave reasons why we have to be careful of going down that sort of route. I might want to have a think about that—not for such a provision to go in the Bill, but it might be useful and I want to think about whether it might be done practically. I am conscious that we are treading into areas where we have to be careful in that balance between the rights of citizens and the tools available, so I should like to think about it.
As I say, we do not expect officers to seize masses and masses of material unless they are absolutely sure. I feel that we have dealt appropriately with these problems in the Bill. To accept the amendment would be to negate the purpose of the power. I take the potential misuse of this power very seriously. That is why we put in all the safeguards. As I say, I should like to think about the other issue, but I do not think that it would be appropriate to put such a provision in the Bill. I hope that I have been able to satisfy the noble Baroness and that she feels able to withdraw the amendment.
I am very grateful to all noble Lords who have spoken in what I think has been a very useful short debate on the issue. As I said at the outset, this was intended to be a probing amendment. I am especially grateful to the noble and learned Lord, Lord Mayhew of Twysden, with all his experience, for stating better than I could why it is important that we have the debate. If the suggestion of the noble Lord, Lord Harris, about an audit could be useful—I am not saying that such provision should be made in the Bill—I am grateful that the Minister is going to think about it.
The Minister said that he did not imagine that the police would seize "masses and masses" of material. However, where they have a suspect with masses and masses of material, I imagine that they would seize nearly all of it, so I am not sure that he is right about that. In the mean time, I beg leave to withdraw the amendment.
Under Clause 5, retention of documents is limited to 48 hours without further authorisation. Again this is a probing amendment. I should like to refer to the Northern Ireland Act, when it was in use, and ask the noble Lord how long documents such as this were held in Northern Ireland. Was it for longer than 48 hours or was it within that 48-hour limit? I suspect that it might have been less. Would the Government expect it to take longer in England and Wales to clarify whether documents are needed? I am talking about getting them back to wherever they are going—to the police station or whatever—and for somebody making up their mind about whether the documents have relevance.
Under Clause 5 it is possible for the period of extension to increase to 96 hours, starting from when the documents were originally removed. Can we be sure whether these documents can be held after they have been translated or decrypted? Therefore, if there is an extension of time to 96 hours and the documents require decryption, when does the time begin to run? For how long can they be retained? It looks as through that extension will be from the moment they are seized, but if more time is required—I can understand that the translation of documents may take time and then a decision needs to be made—is there any question that they may go beyond the 96 hours, and beyond 96 hours from when they were originally seized?
This is quite important. Clause 6 deals with access to those documents by the people they have been seized from, so we need to know where the timescales begin. I beg to move.
The amendment as tabled could remove an important safeguard with regard to the normal process of assessing whether a document is material and should be seized should be limited, and limited to a short period, which in this case is 48 hours. The other issues raised by the noble Baroness, Lady Hanham, are important and need to be clarified. However, the amendment as tabled to remove the 48-hour requirement seems to me to be unhelpful and would remove a very important safeguard for people faced with this situation where material was being taken from their homes to be assessed.
I thank the noble Baroness for these points. A couple of them are rather important. As regards the Northern Ireland situation, the period of 48 hours was used in Northern Ireland. The provisions were used around 347 times over a period of five years and the police found that 48 hours was adequate time generally to examine a document. Therefore, we did not see any reason why we should change that.
The Bill makes provision for extending the periods of retention, only with the authorisation of a chief inspector, up to a maximum of 96 hours. Perhaps we have not made it clear enough in the Bill. As I understand it, if you find something in a document in 96 hours—the period up until which it is removed—that is important for the case, you then seize it.
On encryption, we are not allowed to decrypt something on the basis of this clause. We would have to apply for a separate notice under Section 49 of RIPA. If it was encrypted, we would either have to say that we need not bother because of all the other stuff or, if we felt we needed to, we would have to apply for that notice. I am not sure that that is quite clear enough in the Bill; I will look at it and see that it is clarified. However, the amendment would confuse things and wreck this aspect of the Bill. I therefore ask the noble Baroness to withdraw her amendment.
I realise that the amendment was not entirely helpful to the Bill. On the other hand, there must be devices for getting matters discussed, and so we have had a short debate on this issue. It is important in dealing with decrypting and what can and cannot be done with document retention thereafter. I am grateful to the Minister for his reply. There is nothing more to be said about this, and I do not think that I will return to it. If I do, it will be with an amendment that is less worrying to the noble Lord, Lord Harris—although why I should bother, I am not sure. I beg leave to withdraw the amendment.
I have four amendments in this group—Amendments Nos. 9 to 12—and I will go through them individually. As I said on Amendment No. 8, this leads us into "Access to documents", and my amendments probe the duty of the officer to return the documents and any copies made.
Amendment No. 9 highlights the provisions that place a duty on the police to distribute copies of the document to certain people while it is seized. Oddly, the provisions under Clause 6 that ensure access are not the same as those under Clause 8 which ensure that the document is returned to the correct person. As far as I can see, the provisions would allow the owner of the document no access if he was not in custody of it when it was seized. Is that the case? It is the kernel of this problem.
There is also no discretion under Clause 6 to deny access to somebody who had custody of the document at the time of the seizure, but who should not have had it. That could occur anywhere in a workplace, for example. Clause 8 considers the possibility that someone had inappropriate custody of the document at the time of its seizure, but Clause 6 does not. This is a case of ensuring that the clauses and provisions stack up together.
Amendment No. 10 highlights the unusual judgments that these provisions will demand from police officers. As we have discussed, a police officer is in possession of an unreadable document, because it was found during a search based on a terrorism offence. He is now meant to decide whether access to this document, which is still unreadable, will prejudice a future investigation of criminal proceedings or even facilitate the commission of an offence. How can an officer tell whether allowing someone access to a computer, or giving them a copy of document, will do any of those things? He must decide who to give it to, or who not to.
The point about these documents is that the officer still does not know what they contain. He is being asked about access, does not have the faintest idea what they say, and must decide whether the person asking about it has a right of access to it or not. As he does not know, he cannot tell.
Amendment No. 11 is a probing amendment, designed to explore what would happen if the document had been damaged or lost; this is probably more relevant if a computer had been taken apart and the document had been damaged in the process. Are the police responsible or liable for the loss or destruction of that document?
Amendment No. 12 looks at the grounds on which a document's return could be delayed. In the Commons, the Government promised to look at the Police (Property) Act 1997 to see whether there was a mechanism for deciding the property's owner. Can the Minister give us any information about that, and whether those inquiries took place? That is the burden of those amendments. I beg to move.
As the noble Baroness has spotted, this is a quite complicated matter. This might be a long answer, but I need to go into some detail on it. I had the same queries myself, and so had an explanation from the Bill team.
As the noble Baroness rightly points out, Clause 6 makes provision for certain persons to have access to a document removed for examination under Clause 1 of the Bill. While removal of documents for up to a period of 96 hours may have little or no adverse effect on some people, for others the documents may relate to important matters and they will need them back. That is why this clause provides for the right of supervised access and copies.
However, it is important that such rights are not granted where the officer in charge of the investigation has reasonable grounds for believing that they would prejudice criminal investigations or proceedings, or they were sought for a nefarious purpose—for example, to interfere with prompt and effective investigation into a terrorism-related offence or to facilitate further offending.
The first amendment in this group would remove the provision which sets out the people who are entitled to request a copy of the removed document. Clause 6(3)(a) provides that where the document was found during the search of an individual—for example, stop and search under Section 43 of the Terrorism Act 2006—then that individual alone can request access to, or a copy of, the document.
Where the document was found during the search of premises, then the occupier of the premises can request access, along with the person who had custody or control of the document at the time it was found, or someone acting on behalf of those persons. These terms cover distinct groups of people. For example, if the police search the premises of a business and remove some documents from an individual worker's desk, the business would be able to request access to the document as the occupier of the building. Equally, the individual would be able to request access as the person who has custody or control of the document when it was found, as the document may have belonged to him personally. Finally, it is also possible for a person acting on behalf of any of the people above to request access, provided they can prove that they are a genuine representative.
The second amendment would remove the reasons for which an officer can refuse access to, or a copy of, a removed document. I consider that each of the reasons in Clause 6(4) for limiting access is required. Subsection (4)(a)(i) is to cover the original investigation—a search conducted under new Section 7A of the Prevention of Terrorism Act 2005 to see whether a person subject to a control order has absconded, for example. Subsection (4)(a)(ii) will cover the investigation of the document, so access may be refused, for example, where this would prejudice the actual process of examination, such as by slowing down the examination so as to take it outside the timescales for retention.
Subsection (4)(b) covers the investigation of an offence—for example, if it was thought access would tip off a person as to the documentation seized such that other evidence of the offence could be covered up. Subsection (4)(c) covers the prejudice of criminal proceedings, which justification speaks for itself, and subsection (4)(d) covers the facilitation of an offence—for example, access to a document which might consist of information about potential terrorist targets. Similar restrictions on access to, and copies of, documents seized are provided in Section 21(8) of PACE. These concern the prejudice of any investigations or criminal proceedings.
I know that is a very convoluted response but I hope that the noble Baroness follows the reasoning. The consequence of accepting the relevant amendments would be to deny an individual who has had his documents removed by the police under this power a means of reducing the impact of these provisions on his life. Therefore, I hope that, on that basis, she will feel happy to withdraw the amendment.
On Amendment No. 11, the noble Baroness asked whether the police would be liable for damage to property. I assume that they are, but I do not know. I shall check that. I am sure that they would be. They will not take away computers, cameras or the like; they will take away downloads of material only. That is all that they can ask for. Therefore, any damage would concern documents. I think that it is unlikely that they would be damaged, but I am sure that the police would be liable for any such damage. However, as I say, I shall need to check that, because I am not absolutely certain about it.
Amendment No. 12 concerns the return of removed documents where there are competing claims. A situation may arise where, for example, the person on whom the document was found may have been looking after it for someone else. Where the officer returning the document is satisfied that another person has a better claim to the document, it may be returned to them.
Where there are competing claims for the document, it may be retained for as long as is reasonably necessary to determine to whom it should be returned. This amendment would insert a time limit of 24 hours for making the decision on how long to retain the document. We have made it clear in the clause that a document can be retained only,
"for as long as is reasonably necessary", to make that decision. I think that, in all likelihood, the period will be much less than 24 hours. However, in a very complex case it may take longer than this to decide to whom the document should be returned. The provision in the Bill allowing retention for this purpose for as long as is reasonably necessary again follows the model in Part 2 of the 2001 Act.
I know that is very complicated, but this is a complicated provision. However, that is what is behind it all. Noble Lords should be aware that, while a document is being retained awaiting a decision on competing claims, it cannot be examined, so that does not make any difference to the relevant period. I hope that I have answered all the questions and that the noble Baroness feels able to withdraw the amendment.
I think that the noble Baroness misheard what I said.
I shall have to read the Minister's speech in Hansard. I am grateful to him for trying to untangle these clauses and the question of access. I shall study his comments on Amendments Nos. 9 and 10 because the areas that they cover seem rather muddled and I want to be sure that I have correctly understood what he said. I am grateful for his response on Amendments Nos. 11 and 12. I may return to Amendments Nos. 9 and 10 at a later stage, but, for today, I beg leave to withdraw the amendment.
I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 14.15.