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8.15 pm
Mr. Hawkins: I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker: With this it will be convenient to discuss the following: Amendment No. 19, in clause 52, page 46, line 17, at end insert--
'and
(f) in the case of material held in electronic form, whether it would be reasonably practicable for the material to be copied on those premises.'.
Amendment No. 20, in page 46, leave out lines 18 to 22.
Amendment No. 21, in clause 53, page 47, leave out lines 34 to 38.
Amendment No. 22, in clause 54, page 48, line 22, leave out "to" and insert "within".
Amendment No. 23, in page 48, line 22, leave out "to" and insert--
'within, or on the exterior of,'.
Amendment No. 24, in clause 55, page 49, line 28, leave out--
'due regard shall be had to the desirability of allowing'
'all reasonable steps shall be taken to ensure that'.
Amendment No. 25, in page 49, line 30, after "property,", insert "has".
Amendment No. 26, in page 49, line 31, at end insert--
(b) where the initial examination of the seized property has been conducted without the presence of--
(i) the person from whom it was seized (or his representative), or
(ii) a person with an interest in that property (or his representative),
the person for the time being in possession of the property shall give written notice of the reasons why the examination was conducted without the presence of that person or his representative, unless that person has declined the opportunity to be present at the examination.'.
Amendment No. 27, in clause 61, page 54, line 3, at end insert--
'(2A) An application made under subsection (2) shall be heard by the appropriate judicial authority within 48 hours of it being made.'.
Amendment No. 28, in page 54, line 24, after "return", insert--
'within such reasonable period of time as the authority shall specify'.
Amendment No. 29, in clause 63, page 57, line 37, at end insert--
'(1A) The duty to secure that arises under this section is also a duty of the person for the time being having possession, in consequence of the seizure, of the seized property to secure that arrangements are in force that ensure that any material (including any documents, photographs and material in electronic form) in the possession of any person that has been created as a consequence of the seizure of the seized property prior to the giving of the notice of the application under section 59(1) is not at any time--
(a) further examined or copied, or
(b) put to any other use,
except with the consent of the applicant or in accordance with the direction of the appropriate judicial authority.'.
Amendment No. 30, in page 57, line 38, leave out "subsection (1)" and insert "subsections (1) and (1A)".
Mr. Hawkins: New clause 6 and the various amendments that are grouped with it deal with matters that were not discussed at all in Standing Committee. It is again an example of where the Government have been quite ridiculous in respect of the limited amount of time that they have provided for debate. I said that the time allowed would prove inadequate, and it has proved inadequate. We are still not anywhere near halfway down the list of new clauses and amendments. Again, there is a negation of the proper scrutiny of the legislation--a negation of parliamentary democracy.
New clause 6 is important. The Government are seeking through measures on the search of premises to close a loophole in the law that emerged in a case last year, which was dealt with by the Court of Appeal: the case of the Queen v. Chesterfield Justices and the chief constable of Derbyshire ex parte Bramley, reported in 2000 in the first volume of the all-England law reports at page 412. Although there is no doubt that there was a need for some fresh legislation--indeed, the Court of Appeal made it clear that, if Parliament wished to regulate the matter further, it needed to have fresh, clear legislation--the Government have, in our view, slipped up because their proposals create some further problems. We seek to solve those problems in new clause 6 and in the amendments.
New clause 6 would require that, where a search is being conducted and it is likely that legally privileged material may be seized during the search, independent counsel should be present at the time of the search to help in the identification of that legally privileged material.
I declare an interest as a member of the Bar and as someone who sat for a number of years on the Bar Council. The Criminal Bar Association of England and Wales has made a detailed submission, but the matter is of concern not just to members of the association but to the whole legal profession, including the Law Society: everyone who deals with that area of law.
I was the subject of some criticism from the Minister of State in Committee for referring with approval to the views of the Criminal Bar Association of England and Wales in relation to another matter. I made no apology for doing so, and I make no apology now. Again, we think that the work of the representatives of the association has been important. There is a clear precedent for what the association is proposing. Customs and Excise and the Inland Revenue already regularly apply the procedure of having independent counsel present. It will be for the Minister to explain why, in the area of the law where the Government are putting forward new proposals, we should not have exactly the same arrangement for independent counsel to be present to identify material that is legally privileged.
It already happens in cases involving Customs and Excise and the Inland Revenue. The proposal is on all fours with that. The procedure has the advantage of providing a check on the exercise of powers on site. In addition, independent counsel will be able to assist the relevant authorities in justifying whether it was reasonably practicable to undertake the sifting exercise on site.
Amendment No. 19 would require the person seizing material to look at whether, in the case of material held on computers and in other electronic form, it was practicable to copy the material on the premises, rather than necessitating the removal of whole computers or hard discs. Amendments Nos. 20 and 21 would stop these new sifting powers applying to the material that is legally privileged. We raise this matter because of the great concern in the legal profession about the seizure of such material. The amendments are probing and seek an explanation from the Government of why the exception in respect of such material in other areas of the law is not maintained here.
Amendments Nos. 22 and 23 are drafting amendments, which relate to the requirement to put a notice on the premises being searched if no one is present at the time. The Bill refers to
- "in a prominent place to the premises",
- "in a prominent place within the premises"
- "in a prominent place within, or on the exterior of, the premises".
Amendments Nos. 24 and 25 seek to raise the test for conducting an examination of seized property from "due regard" to the desirability of having the owner present to
"all reasonable steps". What does the due regard test mean? How high a test is it? We think that that is a serious point and that "all reasonable steps" is a far greater safeguard and is more usual in relation to law concerning infringements on civil liberties.Amendment No. 26 would require that where the examination of the seized property was conducted without the presence of the person from whom the property was seized or his representatives, written reasons should be given. Again, that is reasonable.
Amendment No. 27 would require a hearing on whether to return a seized property to be held within 48 hours of an application. It is a modification of the habeas corpus principle in relation to the detention of a person. We think--as do lawyers in the field--that the 48-hour proposal is reasonable.
Amendment No. 28 would require the return within a reasonable period of seized property that a judge had ruled should be returned. We feel strongly that it should not be left open to the prosecuting authority to return the property whenever it likes.
Amendments Nos. 29 and 30 would require that when an application to return the property was made, the duty to secure the property under clause 63 should include not only a duty not further to use the property until the judicial hearing had taken place, but a duty not further to use any material that had been created as a result of examining or copying the property. In other words, the amendments draw a line on a matter that is not covered by clause 63. At the moment, if the prosecuting authorities had taken a photocopy of a document, they would have to secure the document itself. As the Bill stands, the copy could still be used by the prosecution, even though an application to return it had been made.
What does Government amendment No. 44 do? We recognise that the Government are seeking to make a small amendment to the Terrorism Act 2000, but we are not clear what the significance is of the change from 28 to 22. I would be grateful for an explanation of that.
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