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Clause 18

Counter-Terrorism Bill – in a Public Bill Committee at 5:00 pm on 29th April 2008.

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Material not subject to existing statutory restrictions

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

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.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office 5:15 pm, 29th April 2008

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.

Photo of David Heath 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?

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

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.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

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.

Photo of David Heath 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.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

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.

Photo of David Heath 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.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

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.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 5:30 pm, 29th April 2008

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.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

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.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

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.

Amendment, by leave, withdrawn.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

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

‘or disclosing it to any person’.

Photo of Edward O'Hara 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’.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

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.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

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?

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

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.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

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.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

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.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

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.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

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.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

Order. We have not yet come to clause 19.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

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.

Amendment, by leave, withdrawn.

Clause 18 ordered to stand part of the Bill.