House of Commons
|Session 2007 - 08|
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General Committee Debates
The Committee consisted of the following Members:
Chris Shaw, Mick Hillyard, Committee Clerks
attended the Committee
Public Bill Committee
Tuesday 29 April 2008
[Mr. Edward OH ara in the Chair]
Further written evidence to be reported to the House
CTB 05 Coroners Society of England and Wales Supplementary
The Chairman: Following last weeks oral evidence sessions under my co-Chairman, Mr. Bercow, I welcome Members back from the opulent surroundings of Portcullis House to the more familiar territory of the Committee corridor and the more familiar business of line-by-line scrutiny of the Bill. I trust that we shall apply ourselves to that task with the required discipline. I have a couple of announcements to make before we start. Members should feel free to remove their coats, as it is important that you all feel comfortable. I remind the Committee that money resolutions and Ways and Means resolutions relating to the Bill are available in the room for Members.
Power to remove documents for examination
Mr. Dominic Grieve (Beaconsfield) (Con): I beg to move amendment No. 51, in clause 1, page 1, leave out lines 6 to 11.
May I welcome you to the Chair, Mr. OHara? As far as acoustics are concerned, the fact that it is much easier to hear people in this room than it was in Portcullis House says something for our Victorian forebears, so it is rather pleasant to find ourselves here, even without the modern facilities.
Clause 1 will give a power to remove documents for examination. I say to the Minister at the outset that I have tabled some amendments to clause 1, all of which are probing and, I hope, will provide the Committee with an opportunity of seeing and understanding what the Government intend to do in that area.
It is a rather long-established principle of English law that the right to the privacy of ones papers is sacrosanct, except where statute or the necessities of bringing prosecution give the state power to seize documents. That was established long ago in the case of Entick v. Carrington, which is the sort of case that one learns about as a law student and is thereafter permanently engraved on ones memory. As I recollect, that case involved a Secretary of State, Lord Halifax, who seized an individuals papers. The courts came down fairly strongly against him in the 18th century, arguing that papers were some of the most important things that an individual could possess. In a country that is governed by the rule of law and where documents may be of
When trying to seize material that is linked to terrorism and successfully bring prosecution, I fully accept that that rule needs to be tempered. The nub of the matter on which I seek the Ministers clarification is this: what extra powers do the Government seek other than those in ordinary criminal law, which already gives the police the power, under a warrant, to seize documents that might be connected with the commission of an offence? It seems that the Governments intention in clause 1 is, in those areas where it might be necessary, to seize documents to ascertain whether they are of a kind that can then be seized for the purposes of prosecution.
When one looks at subsection (1) in that regard, one will see that three of the provisions cited are linked to the Terrorism Act 2000. I am sure that the Minister will correct me if I am wrong, but I was under the impression that the 2000 Act already made provision for that type of preliminary seizure for ascertaining whether a document was linked to terrorism. In those circumstances, the first probing amendment that I tabled for the Committees consideration questions whether it is necessary for those three provisions to be covered. Can the Minister explain that a little? I dare say that he may, at the same time, take the opportunity to explain more about the general thrust of the clause, and we can then go on to consider the amendments that we have tabled on other aspects of the clause.
The Minister for Security, Counter-Terrorism, Crime and Policing (Mr. Tony McNulty): I join the hon. and learned Gentleman in welcoming you, Mr. OHara, to the Committee. I also concur with him in welcoming everybody to this room rather than to the dainty little room in which we had the public evidence sessions. It is a pleasure to stand to speak. With your indulgence, Mr. OHara, we are moving closeas I promised last weekto a session for the Committee on intercept as evidence and coroners. I think that it will be on 7 May, which will hopefully be convenient for all Members who wish to avail of it.
I entirely agree with the hon. and learned Gentlemans opening remarks about the principle of law and the privacy of papers. I hope that we will show that that concern is reflected in this set of clauses. I also hope that we will show that the reason for this and other clauses, which is not simply to enhance or grow the polices capability to seize papers, but to seize papers to then ascertain whether the police have the right to seize them, is the correct focus. However, it might be usefulas he impliedif I talk a little about the clause and then come back to the amendment, because that will put matters into context, with a commensurate reduction in my ramblings on a clause stand part debate.
Clause 1 introduces a power for the police to remove a document for examination to ascertain whether that document can appropriately be seized. The police can remove the document to another place, such as a police station, and retain it there until the examination is complete. The power is limited to documents found during a terrorism-related search. The power gives the
The police can already seize a document found during a search where they have reasonable grounds for believing that the item is authorised by the search power or warrant, has been obtained in consequence of the commission of an offence, or is evidence in relation to an offence. The power is to cover situations where no reasonable grounds exist. For example, where the police have conducted a search and find a document in a foreign language, they will not have been able to demonstrate fairly that they have reasonable grounds for believing that it might be evidence.
The power was first suggested by the Northern Ireland Office following the expiry, in July 2007, of a similar power that applied only to Northern Ireland and allowed the removal of a document to ascertain whether it contained information useful to terrorists. The police support the new power being extended to the whole of the United Kingdom and to allow examination of whether a document is evidence of wider terrorist purposes. People will understand that clause 1 establishes that principle, and elements of the clause detail the time frame for ascertaining whether seizure is appropriate, as do other clauses that we will discuss in relation to other amendments.
The point of the power is therefore to allow the removal of documents to ascertain whether the threshold for seizureusually reasonable grounds for beliefis met. If the police found a document in a foreign language, they would need to remove it for translation before an officer could form the reasonable grounds for belief that the document was a terrorist publication, for example, and seizure of the document could take place. Without that power, the police may not be able to take possession of documents that might amount to significant evidence of a terrorist threat. The power may be used only when a search is carried out under the terrorism-related search powers of clause 1(1). Those allow for documents to be seized, but apply thresholds for such seizures.
The amendment would limit the power to documents found under the searches listed in clause 1(1)(d) to (f): searches for evidence of the commission of weapons-related offences; searches in relation to control orders; and searches for terrorist publications. The searches under paragraphs (a) and (c), which would be removed by the amendment, fall into two categories. The first category includes section 43(1) and (2) of the Terrorism Act 2000, which allows for the search of suspected terrorists before and on arrest. Both searches allow for seizure on reasonable suspicion. It is important that the power to remove documents is attached to those powers, for the reason already given that the current threshold for seizure might not be met for a document, the initial nature of which is entirely obscure.
The second category includes the search power under paragraphs 1, 3, 11, 15, 28 and 31 of schedule 5 to the 2000 Act, which allows for searches that take place as part of a terrorist investigation. Other than the powers under paragraphs 28 and 31, which relate to Scotland, those powers are covered under part 2 of the Criminal Justice and Police Act 2001.
David T.C. Davies (Monmouth) (Con): The Minister is making a compelling case. However, if the power to remove documents that might be written in a foreign language is necessary to investigate terrorist offences, will the same power not be necessary to investigate organised crime, which is also international? Why is there a disparity between the proposals for terrorism legislation and the current legislation for organised crime?
Mr. McNulty: The hon. Gentleman knows that the Bill relates only to terrorism. He makes a fair point, and I am not sure whether the matter was covered in the serious and organised crime legislation from last year. [Interruption.] The hon. Member for Somerton and Frome says from a sedentary position that it was not covered, but I will double-check that.
The power under the clause is needed in addition to existing powers because effectively we are lowering the threshold for removing documents for examination. That will allow the removal of documents not only that the constable is authorised to search, but that might turn out to be evidence of terrorist involvement. As hon. Members know, we are lowering the threshold only momentarily. We will come on to discuss the timing. It is important not only that the clause stands part, but that it stands without the amendment. I hope that I have explained broadly the new power to remove documents, why I think the clause should prevail and why the amendment should not.
The Chairman: Before I call the hon. and learned Member for Beaconsfield to reply, I judge that in responding to the amendment the Minister in effect gave a clause stand part argument. I therefore give notice that I shall move clause stand part formally. If hon. Members wish to comment on the clause, they should do so during this debate.
Mr. Grieve: I have no objection to that course of action. During discussion of the coming amendments, we will be able to look at the subsequent detail. The Minister has outlined the principle of the clause and I am content with that. As I indicated at the outset, I will not resist the clause in its generality.
The Minister has made some important points and I come back to one, although it may feature in the next group of amendments. As I understand it, he has acknowledged that we are dealing with the removal of documentation with no requirement of even reasonable suspicion that it is terrorist-linked. Effectively, this is a blanket power in a terrorism search to remove anything until the authoritiesthat is, the policehave satisfied themselves that it is not terrorism-related and therefore not open to seizure.
It seems to me that that raises several issues to which we can return in a moment, and that is why I will not labour my remarks at this stage. First, is removing the reasonableness test that normally applies warranted? Could it not be argued that if one goes into a place where one starts collecting material, and one has a reasonable suspicion that there is a terrorism-related matter concerning those premises, it probably is reasonable to remove documents which one cannot immediately identify? Therefore, removing the reasonableness clause might be going too far.
My second question, to which I shall return under the next group of amendments, concerns the absence of time limits. The third matterI raise it now because I am conscious of the fact that I did not table an amendment on the issueis about allowing the individual whose papers have been taken to retain a copy, which does not appear to be expressly provided. The more I listen to the Minister, the more I begin to think that the provision of a copy might well be one of the key things that the person concerned ought to be doing.
If it has not been shown that such papers are terrorist-related, and if the individual concerned has not been arrestedbecause, otherwise, other powers would kick inthe Minister must guard against legal challenges. I can well foresee a charge being mounted by a person who argues that his private papers have been seized when there is nothing wrong with them, and that quite a long time afterwards he has still not heard whether the police are going to hand them back. From the Ministers point of view, the danger is that if those documents were required for some legal purpose, claims for damages could be made against the police and the Government if the Government have not got that right.
I shall come back to those details again under the next set of amendments. I thank you for your indulgence, Mr. OHara, in allowing me to stray a little bit on the generality of the clause, but it seems to me that those are the key issues. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
(2) Where a constable who carries out a search to which this section applies finds a document that he has reasonable grounds for believing is one that may be seized, he may remove the document to another place for the purpose of ascertaining whether the document is one that may be seized and retain it there until the examination is completed..
The Chairman: With this it will be convenient to discuss amendment No. 1, in page 2, line 8, after may, insert
, if he has reasonable grounds for believing that a document may be seized, and.
Mr. Grieve: I will try to avoid repeating myself. This amendment deals with the very wide power as it is described in subsection (2) which states:
A constable who carries out a search to which this section applies may, for the purpose of ascertaining whether a document is one that may be seized, remove the document to another place for examination and retain it there until the examination is completed.
On the face of it, this is a blanket power for a constable who comes across any document, the contents of which cannot reasonably be ascertained by looking at it immediately. That would include, for example, a document in a foreign language that he cannot read or, for that matter, any document that may be encrypted on a computer. The constable could take it away and retain it until such time as the examination is completed. There
I should therefore be grateful if the Minister could deal specifically with the issue of the reasonable grounds and whether it is required to be put in. Amendment No. 57 would alter subsection (2) to read:
Where a constable who carries out a search to which this section applies finds a document that he has reasonable grounds for believing is one that may be seized, he may remove the document to another place for the purpose of ascertaining whether the document is one that may be seized and retain it there until the examination is completed.
I find it difficult to see how the introduction of the notion of reasonable grounds would create problems for the police in such a setting. The police might go along to a house and find a document in Arabic which may be either an al-Qaeda wish list of the things they would wish the individual to do in this country or a bill for a restaurant in Peshawar. If the constable cannot himself read what the document says that must be reasonable grounds for believing that it is one that may be seized. I would therefore be grateful if the Minister would explain why the concept of reasonableness appears to have been taken out of the section.
Mr. David Heath (Somerton and Frome) (LD): I agree with the hon. and learned Gentleman that the reasonableness test has already been applied in respect of the warrant for the initial search, and therefore it is reasonable to suppose that a constable may reasonably suspect anything that is found and may wish to remove it. However, does he see any compatibility in this part of the Bill with the PACE code B? The two seem out of kilter. His amendment, and that in my name and that of my hon. Friend, would put the Bill back into conformity.
Mr. Grieve: I agree entirely with the hon. Gentleman. The Bill is out of kilter, and that is precisely why I wanted to highlight the issue. While I am conscious that we are dealing with terrorism and that people have anxieties about terrorismthat is why we have a Counter-Terrorism Bill to give special powersevery departure from the ordinary processes of criminal law gives me a slight shiver, and I need good justification for such departure. My hon. Friend the Member for Monmouth correctly raised the point, If terrorism, why not organised crime? The answer is that for organised crime you still have to have a reasonableness test. Organised crime in many ways impacts severely on the well-being of the citizens of the country. That is why, when I come across something of that sort, I ask myself whether it is for the Government to justify the departure from the reasonableness test because, on the face of it, it is difficult to see how the test will provide any sort of fetter or inhibition on the ability of the police to do their job in that context.
Tom Brake (Carshalton and Wallington) (LD): I welcome you, Mr. OHara, and I am sure that we will have a constructive exchange under your chairmanship. I welcome the fact that the Minister started by offering the briefing on intercept and coroners matters.
It is difficult to follow the hon. and learned Member for Beaconsfield, who has carefully set out the reasons for amendment No. 57. The wording of our amendment No. 1 is identical to that in amendment No. 57. The
Mr. McNulty: On that point, yes it would, because the thrust of the amendment negates the clause. Members need to understandas I am sure that they dothat this is not about fishing. It is not a carte-blanchePACE and everything else asidefor the police to go fishing just because it is a terrorist case. I urge members to read the set of clauses carefully. It is about allowing seizure where there are no reasonable grounds, for a period of only up to 96 hours. The hon. and learned Member for Beaconsfield was wrong to say that there is no time limit. That period is precisely to ascertain whether the police can establish reasonable grounds, given the obscure nature of the document, to seize it in the normal legal fashion. That is all. The Committee needs to read all five interlocking clauses, which go through other points that the hon. and learned Gentleman made about copies and all the other elements, including the record of seizure and legal privilege. In that context, reinserting reasonable grounds would make the five clauses a nonsense and negate them entirely. This power is about the temporary removal, in these obscure situations, of reasonable suspicions, grounds for belief and the other assorted reasons why police can seize a document.
I take the point that the document could be a restaurant menu from Peshawar, al-Qaedas latest top 10 or something else. However, these measures are about refining and clarifying the law. I do not accept the point half made by the hon. and learned Gentleman that on reasonable grounds, the police can take whatever they like in any circumstances. We are discussing a temporary, limited power to seize documents, the origin and content of which are obscure, take them to a police station, translate them and establish whether they can appropriately be seized on reasonable grounds. I accept everything that has been said about privacy of papers.
The amendment would negate this power entirely. I say in the nicest way possible that the hon. and learned Gentleman should take the shiver out of his spine because it is not appropriate. This measure is not a sledgehammer cracking through the rule of law in any way, shape or form. He should be aware, as he clearly was not from his introduction, that there will be time limits and that clear records must be kept. Everything interlocks across the five clauses. Where appropriate, PACE and guidelines will be amended and discretion will still depend on the reasonable and temperate manner in which the police must exercise their powers.
I assure the Committee that this power is not about weakening the legal grounds for seizure, other than saying in reasonable circumstances, We have come across certain documents. We think that they may be important to this terrorism case, but we do not know. We cannot on any reasonable grounds seize them legally. Lets have 48 or 96 hoursas one of the later clauses saysto ascertain that. We can then either return them or seize them legally on grounds of reasonable suspicion.
Mr. Heath: I agree with the Minister that changes to PACE will be needed. It will be extremely helpful to the Committee if he indicates whether he is prepared to make those changes by amendment to primary legislation in the later stages of the Bill or to publish the draft changes to the PACE code. That would give some reassurance to the Committee on the point that he has raised.
Mr. McNulty: That is an entirely reasonable point. Whenever leading in a Committee, I have tried to ensure that whatever hangs off the Christmas tree, such as subsequent codes of practice, guidance or statutory instruments, is made available at least in draft or outline form to the Committee. I give that undertaking. We will make clear the amendments to PACE in the way that has been done since it was introduced in 1984. I will eschew the offer of more primary legislation.
Under the PACE codes, the practice that will result from the adoption of the legislation is that the powers should be used only in efforts to locate evidence of offences connected with terrorism and officers should not remove any more material than necessary. That will limit, in this very serious area, the scope for the police to go fishing and say, Its in French. Get the lorry round and well take the lot. Members of the Committee have made an entirely serious point about that. With your indulgence, Mr. OHara, that is why subsequent clauses will put serious time limits on seizure. In the first instance that will be 48 hours and, by exception, it will be 96 hours. That is it. There will be no other extension beyond that. Quite rightly, there are clauses about how we will deal with documents that could accrue legal privilege. There must also be a very clear record of the seizure.
Given the limited time, it is not appropriate to talk about copies being left with the person whose documents are seized. The hon. and learned Gentlemans notion that this is for however long the police want is simply erroneous if one reads the appropriate clause. There is, at least in part, the reasonable notion that this might be just another excuse to go fishing through the PACE codes. I take the point made by the hon. Member for Somerton and Frome very seriously in that regard and will seek to bring something forward, whatever else is added on to the Christmas tree, at least in summary, if not in draft and if not in full.
David T.C. Davies: The Minister is making a compelling case. What happens if those documents are written in some obscure language or some form of code that makes it difficult or impossible for the police to come to an opinion about them within the allotted period?
Mr. McNulty: Then we are back to the hon. and learned Gentlemans point. If there appears to be no significant reason why they are written in some sort of cipher or encryption, we are back on the territory of routine law. If they are written in Tolkienesque runes and the guy is a plumber there might be reasonable grounds to assume that he is seeking to hide information and therefore reasonable grounds to seize them in the normal fashion. This is just about asking
Mr. Adam Holloway (Gravesham) (Con): If one has reasonable grounds, why not seize whatever one wants?
Mr. McNulty: That is entirely the point. As the hon. and learned Gentleman says, very often there will be entirely reasonable grounds. But we are talking possibly about encryption and certainly about language where we think, Hello, its in Arabic so it must be suspicious. But it could be no more than the duty free list for a flight to the Gulf or the Urdu version of the menu from the restaurant round the corner, which has kindly produced its menus in Urdu as well as English. All this does is afford the police the time48 hoursto say, I think, but I cannot hand on heart say, with reasonable suspicion or an appropriate belief, that this document is in accord with the warrant and the grounds for the search in the first place. May I have 48 hours and no more to explore that?
The hon. and learned Gentleman is right. It was in the 2000 Act, but only for Northern Ireland. I had a nice chat with the hon. Member for Lancaster and Wyre last night. He told me how he routinely used this law in some of the searches in a professional context. That is fair and reasonable. All we are saying is that the Government, with cross-party support, are deconstructing the entire terrorist and security legislation framework for Northern Ireland, given the peace process. But we would be remiss and irresponsible if in the course of that process with our Northern Ireland colleagues we did not ask whether there were any elements of that security framework that would be useful and efficient in our current broader threat of and fight against terrorism. This falls into that category.
Mr. Ben Wallace (Lancaster and Wyre) (Con): Given that the warrant itself covers the reasonable suspicion, why are we producing more and more tests within that search itself. Surely for all crimes, whether it is terrorism or not, if there is reasonable suspicion to search a property, what is wrong with getting the trucks in and going through everything?
Mr. McNulty: Because it relies on the word reasonable. Hon. Members can work this out for themselves. It is not in all circumstances reasonable to say that because the constable cannot ascertain the contents of a document for whatever reasondifferent language, runes, hieroglyphics or whateverby definition it must be reasonable to seize that document lawfully. It could be an Encyclopaedia Britannica, but in Arabic or French rather than English. That is not meant to demean our officers: they do a splendid job, but are not multilingual.
All that this set of clauses does is set parameters within the rule of law that state that the police should be afforded at least some timein this case, 48 hours, but that can potentially be extended to 96 hoursto explore lawfully whether there is anything in the
Mr. Grieve: First, I must apologise to the Minister, who is absolutely right. If he looks at amendment No. 58, which I tabled when looking at the Bill in detail last week, he will see that it deals with the length of time set out in the clause, so my apology to him is fulsomeI was in Ireland until rather late yesterday evening, so my memory of all the five clauses in my drafting last week is not as good as it should be.
The Minister makes a persuasive case on that point, and we will come back to it when we get to the relevant subsection. On the general point about reasonableness, he has provided me with considerable reassurance, and the fact that it operated in that fashion in Northern Ireland also indicates that it will not be misused. I want to reflect on this matter in view of the Ministers comments. I can see that there remains an argument for putting reasonableness in, and I am not sure that it would have all of the downsides that the Minister is anxious about. On the other hand, I am also pretty well satisfied that what he is putting forward in this context will not do much mischief, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Patrick Mercer (Newark) (Con): I have decided not to move amendment No. 80. When I was drafting it, I was under the impression that during my service in Northern Ireland we had three days to hold terrorist documents, but my memory is probably faulty. In view of what the Minister has said and of what is coming up in clause 5, I suspect that the amendment would be thoroughly unhelpful, unnecessary and a complete waste of time.
This is a probing amendment. I should be grateful if the Minister would explain the necessity of having subsection (4) in the form in which it has been placed in clause 1. I assume it is because of an anxiety, but what is the basis of that anxiety? If it were not included, the powers of seizure could not start to operate at a time when the police had subsequently decided that they wanted to seize the document.
Mr. McNulty: As I understand it, that is entirely the case. As I said earlier, all that clause 1 affords the constable is the power to remove the documentrather than lawfully seizing itto another place for 48 hours, up to 96 hours, to translate it or do whatever else he needs to do with it to ascertain whether there is reasonable suspicion to seize it. Without that subsection, there is no second phase to that process. Having removed the document and established that there might be reasonable grounds for seizure, subsection (4) is necessary to allow the legal process to continue so that the seizure is lawful, as the honourable and learned Gentleman suggested. It is worth reading out, because the obscure relativism of
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.
That is wonderful English legalese at it best, but its import is precisely as the hon. Gentleman suggests. The 48 or 96 hours is a temporary step out from the due process, to establish whether there are reasonable grounds, etc. The seizure process needs to be ongoing, and all that subsection (4) does is to confirm that the seizure is lawful or that reasonable suspicion was not grounded and therefore the documents are to be returned. It is as simplein its languageas that.
Amendment, by leave, withdrawn.
The C hairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendment s proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.
Question agreed to.
Clause 1 ordered to stand part of the Bill.
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