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Standing Committee D
Thursday 16 January 2003
[Mr. Edward O'Hara in the Chair]
Search and seizure warrants
Question proposed, That the clause stand part of the Bill.
Mr. Nick Hawkins (Surrey Heath): I welcome the Under-Secretary of State for the Home Department, the hon. Member for North Swindon (Mr. Wills), who will respond to my remarks.
I want to explore whether the procedure for search and seizure warrants in part 4 is identical to what has been used previously, because as I discussed this morning with the Under-Secretary of State for the Home Department, the hon. Member for Coventry, North-East (Mr. Ainsworth), we are talking about replacing completely existing extradition law with the Bill in its final form. On an issue as potentially sensitive as the powers of search and seizure, it is important to know whether the Government are changing the established law in relation to extradition. I may have more to say, depending on this Minister's response. Are there any changes? If so, what are they?
The Parliamentary Under-Secretary of State for the Home Department (Mr. Michael Wills): Obviously, all the clauses are important, but it might be helpful if I spell out the reasoning behind clause 154 and some subsequent clauses. Much of what I say will also throw light on those clauses.
When an extradition request is submitted, whether a European arrest warrant or a part 2 request, the requesting state may ask that the United Kingdom police search for evidence that may be useful in the prosecution. It was thought that the police could carry out such a request under the Police and Criminal Evidence Act 1984 or their common law powers, but the Rottman case cast doubt on that. In that case, it was initially held that the search and seizure powers in PACE applied only to domestic offences. It was also held that, since the advent of PACE, the police could no longer rely on their common law powers in this respect.
The Rottman case was partially overturned on appeal, but we took the decision, with the support of the police, who wanted to be clear about their powers, to put the matter beyond doubt by including the relevant provision in the Bill. We considered simply amending PACE to make it apply to extradition offences as defined in the Bill. On the face of it, that would be quite straightforward, but PACE talks about officers as investigating officers, and it was made clear in the Rottman case that officers executing extradition requests are not investigating the offence in question.
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It was also felt that we could not simply add extradition offences to PACE, as there are some parts of it that would not apply.
Clause 154 is therefore modelled on section 8 of PACE and section 352 of the Proceeds of Crime Act 2002, and the powers conferred on the police are similar. It sets out the procedure for applying for a search and seizure warrant, the circumstances in which one can be issued and what it can be used for.
I hope that I have given the hon. Gentleman enough of an indication as to why we are taking this approach, but I am happy to respond to any detailed points.
Mr. Hawkins: I am grateful to the Minister. The position is much as we thought. We had a helpful briefing from the Metropolitan police, which played a significant role in developing part 4, working closely with the Extradition Bill team. The mutual legal assistance legislation was explained and the fact that the Bill is modelled on PACE. We have also read the Government's explanatory notes.
The Metropolitan police briefing said that there is no suggestion that police officers should interview arrested persons to obtain evidence. In other words, we are back to the subject of fishing expeditions that we discussed with the Under-Secretary earlier. The Metropolitan police says that the powers will allow evidence of the offence abroad to be searched for and seized where it is believed to be in a particular location. We will consider other clauses later, and it was helpful that the Minister could go beyond clause 154 and talk about the thinking behind this part of the Bill.
We do not seek to oppose the Government's proposition but we are glad to know that they are aware of the sensitivities of search and seizure, especially in the aftermath of the appalling murder of the detective constable yesterday in Manchester. We all need to be aware of the sensitivities of any search and seizure operations conducted by the police. Having said that, I shall not prolong the Committee's time on the stand part debate.
Mr. John Burnett (Torridge and West Devon): I want to be clear that those elements of PACE that are included ensure that it is explained to individuals that they have a right to legal advice, legal aid and if necessary the right to have an interpreter, which is essential in some of these cases.
Mr. Wills: I am happy to give the hon. Gentleman that assurance.
Question put and agreed to.
Clause 154 ordered to stand part of the Bill.
Clauses 155 and 156 ordered to stand part of the Bill.
Question proposed, That the clause stand part of the Bill.
Mr. Hawkins: I want briefly to raise the issue of computer information. The Government's helpful explanatory note on the clause is very short; it consists of three lines only. There is far less by way
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of explanation than the number of lines in the clause. It is important to put a few things on the record about when computer information will be sought. As the Minister is aware, the law needs to be particularly sensitive when we are talking about material being downloaded, as the matter is in the public eye in a different context.
Will the Minister say something about how the clause has been drawn and how it interrelates with the PACE provisions that we discussed in clause 154? Is the hon. Gentleman satisfied that there will not be a vast increase in litigation if people challenge the way in which computer information is produced? Subsection (3) states that the order has effect to give the constable access to the material in a form
''(a) in which it is visible and legible, or
(b) from which it can readily be produced in a visible and legible form.''
We need to know more about how the information will be produced and whether it will place too onerous an obligation on those who are subject to the orders.
Mr. Wills: I am happy to give the hon. Gentleman such reassurance as I can. The clause results from our desire to clarify the position after the Rottman case, as did the previous clause that we discussed.
Clause 157 echoes paragraph 5 of schedule 1 of PACE and therefore applies if material specified in an application for a production order dealt with in clauses 155 and 156 is held in electronic form. In such circumstances, the material must be produced for a constable, and access must be given to it in a form in which it can be taken away, seen and read. The hon. Gentleman will understand that we have no desire to give rise to a considerable volume of litigation. However, it is a matter of common sense that when encryption packages, for example, are widely available and can be purchased via the internet, it would make nonsense of the intent of the clause and of the Bill as a whole, if people were to produce something in encrypted form which was useless for all practical purposes. A common-sense approach would make clear what was intended by the clause.
A production order requires the subject of the order to give up excluded or special procedure material within seven days of the order being made. Perhaps it will help or reassure the hon. Gentleman if I further explain jargon. Excluded material is fully defined in section 11 of PACE, and includes any of the following that are held in confidence: personal business records, human tissue held for diagnosis, or journalistic material. Special procedure material, which is defined in section 14 of PACE, includes other material acquired or created in the course of business, also held in confidence.
Clause 171 requires the Secretary of State to issue codes of practice on the operation of the powers contained in part 4. These codes will have to be laid before Parliament and will be subject to the affirmative resolution procedure, so the detail will be subject to further scrutiny. We are anxious to address any further concerns that people have in this area. I hope that,
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with those assurances, the Committee will see fit to agree that the clause should stand part of the Bill.
Mr. Hawkins: I am glad that I raised the issue in a short stand part debate. The Minister's response has been helpful, and it is useful to have these things on the record. Time may be saved, as the Minister has referred forward to clause 171, and I intended to ask questions about the affirmative resolution procedure and what the Government had in mind when we reached that clause. Perhaps I will not need to do that now. Given that the Minister has raised the matter, and that there is a link between clause 157, clause 171 and the Secretary of State's powers, can the Minister say how soon he or the Government expect the codes of practice to be available? I am not trying to tie him down to a specific date, but it would be helpful if he could give us a rough idea.
Mr. Wills: At this stage, I can say only that the codes will be available as soon as possible. We attach importance to the Bill and wish to get it sorted out as quickly as possible. However, I cannot specify the number of weeks or days.
Mr. Hawkins: That is helpful. I see the deus ex machina operating—the Minister was taking advice as he got to his feet. Whenever we have a Bill of this sort, which introduces major changes to our law and envisages certain things coming into existence, the full import of which will only be clear once they exist, it is important that there is not a huge gap between the legislation receiving Royal Assent and, in this instance, the codes of practice becoming available.
It would be helpful, and in keeping with the way in which the Government have been publishing Bills in draft for pre-legislative scrutiny, as happened with this Bill, if an early draft of the codes of practice could be produced for Parliament to examine before consideration is completed. The other Under-Secretary of State for the Home Department will remember that this issue arose frequently during consideration of the Proceeds of Crime Bill last year. He was helpful when my hon. Friend the Member for Beaconsfield (Mr. Grieve) and I were pressing him on the various codes of practice, and he was able to provide some early drafts of those codes during the lengthy consideration of the Bill in Committee. I am sure that it would be helpful to members of another place, and indeed to the House on Commons on Report, if the Government were to issue a letter setting out their thinking on what could be included in the code of practice. That would give us an early opportunity to see how the legislation will work. Only if we see some idea of what the code of practice will look like can we analyse this part of the Bill. I hope that I am not making unrealistic or unreasonable requests. I realise that the Minister cannot give me a firm assurance, but I thought it helpful to put my request on the record.