Clause
2
Offence
of
obstruction
Question
proposed, That the clause stand part of the
Bill.
Mr.
McNulty:
In the context that I have described, the five
clauses hang together. Clause 2 creates a new offence of wilfully
obstructing a constable when he is exercising the power under clause 1
to remove documents for examination, pending lawful seizure or
otherwise. That will help to ensure that the power can be used
efficiently and effectively by deterring potential obstruction of the
constable. It is a summary offence, punishable by up to 51
weeks’ imprisonment in England and Wales, 12 months in Scotland
and six months in Northern Ireland. The sentence limit in England and
Wales will be six months until section 281(5) of the Criminal Justice
Act 2003 comes into force, when it will be 51 weeks. The purpose of the
sentence is to act as a deterrent to obstructing the constable. The
penalty for the offence is no less than that for similar offences of
obstruction, for example, under section 47 of the Terrorism Act 2000
and section 26 of the Immigration Act 1971. Imposing a sentence of any
longer than that would be disproportionate to the nature of the
offence. It is difficult to conceive of circumstances where simply
obstructing an officer removing a document could justify, say, three
years or more in
prison.
If the
individual were involved in terrorist activity he would be charged with
a terrorist offence, and if convicted dealt with appropriately for that
offence. It is unlikely that a person would be charged with the lesser
offence of obstructing a constable were he guilty of the more serious
behaviour. If it is clear that there is no terrorist involvement, there
is no reason for the
individual to be treated differently from any other non-terrorist
suspect. Interlocking with all the other elements of this part of the
Bill, that is appropriate and
proportionate.
Mr.
Grieve:
I am grateful to the Minister. I do not disagree
with anything that he said. However, I wish to raise a more general
point, which probably does not require to be touched on in this Bill
but which I think has some bearing on the matter. The Minister
has, I understand, confined obstruction to physical obstruction
or attempting, I suppose, to chuck a document in the dustbin. One of
the issues that we have had to consider on a number of
occasions—as he is aware—is encryption keys and encrypted
material. Some of the material that we are concerned with here is, or
could be, encrypted material that is downloaded from a computer. I
would be grateful if the Minister could tell the Committee how the law
stands on that. My recollection from past debates on the subject is
that there has been anxiety as to whether the penalties are stiff
enough in respect of non-co-operation of that kind. That is why I
tabled some amendments to the clause, although I am aware that they are
totally deficient because they would require Crown court and not
magistrates court procedure. While the Minister has reassured me
completely regarding what I would call the old-fashioned offence of
obstruction—as I think it is generally understood—I
continue to be anxious that we have a proper regime in place, which
provides a sufficient deterrent for somebody thinking that an easy way
out is not to provide encryption keys when encrypted material has been
seized.
Mr.
Wallace
:
I want to follow on from my hon. and
learned Friend the Member for Beaconsfield and ask the Minister whether
he is satisfied by the severity in the clause. The consequences of
obstruction during a search can be quite severe, especially the
obstruction of forensic evidence. A vast proportion of terrorist cases
obtain convictions on the basis of forensics, rather than other types
of evidence. There are also many cases where forensic evidence fails
because the evidence has been corrupted by contamination. A suspect
could damage the evidence and so opt for the lesser offence of
obstructing evidence, rather than that which could be proven by the
forensics that they
disrupt.
11.15
am
Mr.
Heath:
I do not think that I have welcomed you to the
Committee, Mr. O’Hara. I have intervened, but not
spoken to any proposals. The hon. and learned Member for Beaconsfield
has rather elegantly interpolated an entirely spurious debate in terms
of the Bill, but one that it is very important to have on
counter-terrorism. As he is in order, we must be
too.
The
hon. and learned Gentleman asked whether the arrangements for ensuring
that a key to encryption is provided are adequate. An anxiety was
expressed in our evidence sessions by the Metropolitan Police
Commissioner that the tariff was insufficiently high to allow for
remanding a suspect in custody, rather than bail being given by a lower
court. That is a genuine concern because some of us see custody as an
answer if it is impossible to interpret encrypted material in the
period allowed for pre-charge detention. I would be grateful for the
Minister’s
view on whether we are right about the ability of a
court to detain somebody who wilfully withholds the key to encrypted
material that might be of evidential value in a terrorism
case.
Mr.
McNulty:
The bail point should be pursued. I am aware that
Sir Ian made those remarks. As I understand it, under section 49 of the
Regulation of Investigatory Powers Act 2000, five years is the maximum
tariff for such an offence. We can explore elsewhere whether that is
appropriate. For our purposes, there is no power under the Bill for the
police to demand the key to un-encrypt a document. That is partly
because we have the RIPA
powers.
I
am grateful for what the hon. Member for Somerton and Frome said about
the reasonableness of a charge of obstruction. I do not entirely agree
with the hon. Member for Lancaster and Wyre because if the obstruction
becomes more serious than is described by the hon. and learned Member
for Beaconsfield, other charges may kick in. If the offence turns into
wilful assault or something else, the relevant charges will
prevail.
The hon.
Member for Lancaster and Wyre is right in his broad point about the
ability to utilise forensics in terrorism cases and that is dealt with
elsewhere in the Bill. In the narrow field of clause 1 and the
temporary seizure to establish the legality of formal seizure,
obstruction as outlined is entirely right. As I think I said last week,
we have finalised, produced and have in place the statutory instruments
and codes of practice necessary for the part of RIPA that deals with
encryption so that it works effectively. We agreed quite rightly with
the industry that that had to be done in a practical way for it to be
effective, rather than on a whim or exhortation from the Palace of
Westminster, which would cause enormous difficulties in the
practicability of establishing the
charge.
The
Lord knows that I do not want to challenge an established QC, rather
than a more recent one and I congratulate the hon. and learned Member
for Beaconsfield again for attaining silk. I use the term
“Friend” loosely, but my hon. and learned Friend the
Member for Medway (Mr. Marshall-Andrews) said on Second
Reading that in effect, under common law and the rule of law, the
Government have indefinite detention powers on encryption because if a
judge in a trial instructs an individual to give the key to un-encrypt
a database, it is contempt if he fails to do so, and he can be
imprisoned for contempt for ever. The judge will call him up every now
and then to ask whether he is able to behave. If the answer is no, the
judge will say, “Well off you go.” My hon. and learned
Friend alluded to the fact that that was entirely indefinite and that
that was the way to deal with such
cases.
Mr.
Grieve:
The hon. and learned Member for Medway is
absolutely right. The only problem is that that is on the basis that
the case comes before a court. If the only basis on which the
prosecution is likely to be brought is contained in the encrypted
material, the judge will not have the opportunity to coerce the
defendant in that
fashion.
Mr.
McNulty:
Entirely right. Far be it for me to accuse my
hon. and learned Friend of spuriousness and obscurantism, when the hon.
and learned Gentleman does it so eloquently. None the less, because
encryption
is dealt with elsewhere, I think that the obstruction offence under the
clause is appropriate and proportionate. I repeat that I accept some of
the concerns that hon. Members have. However, clauses 1 to 5 hang
together for the limited period in question and I think that they are
appropriate. Hon. Members can see how they will assist searches related
to
terrorism.
Question
put and agreed
to.
Clause
2
ordered to stand part of the
Bill.
Clause
3
Items
subject to legal
privilege
Tom
Brake:
I beg to move amendment No. 2, in
page 2, line 44, at end
insert—
‘(2A) 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.’.
I
suspect that we will highlight areas a number of times in our
deliberations where different Acts operate in different ways or contain
different details. This measure is a good example. All hon. Members
accept how fundamental the safeguard of legally privileged documents is
to our system. The amendment probes the Government on the difference
between the proposals and the operation of the Criminal Justice and
Police Act 2001 on 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 that are required to carry
out the determination or separation and the apparatus or equipment that
is necessary or appropriate to carry it out. I want to give the
Minister the opportunity to explain why those caveats are included in
the 2001 Act, but not in the
Bill.
Mr.
Heath:
Perhaps I can add a concern of mine on this issue.
Far be it for me to have sleepless nights over whether the Government
will fall foul of ECHR provisions, but as the Minister knows, it is
possible that this part of the Bill will.
[
Interruption.
] The Minister huffs and puffs and
says “No,” but the Home Department has already lost a
case on this specific point. It would be wise for the Home Department
to at least consider the possibility that occasionally it may be wrong
in advance of going before a court. He will know about Regina v.
Secretary of State for the Home Department, ex parte Daly, 2001, a case
about the blanket seizure of documents in the context of the Prison
Service. The House of Lords unanimously held that including legally
privileged documents in that was a breach of the appellant’s
right under article 8(1), quite apart from other provisions. Therefore,
if we can safeguard the Government’s intention in that respect
while maintaining the rights of the citizen under human rights
legislation, that would be to the advantage of what the Minister is
trying to achieve,
rather than to its detriment. The provisions will achieve very little if
the first case that comes up is immediately taken to the courts as a
breach of human rights legislation and the Home Department yet again
loses its
case.
Mr.
Grieve:
I agree entirely with the general thrust of the
points made by the hon. Members for Carshalton and Wallington and for
Somerton and Frome about the importance of clause 3. If we do not get
it right, I have no doubt that there will be a successful challenge
under the European convention on human rights. I am not even sure
whether one would even have to go to the European convention on human
rights, because the principle of protection of legal privilege is so
well established in common law that it would probably be feasible for
the judiciary to express concern that the entire fairness of the trial
process had been vitiated and thereby bring a prosecution to a close.
It is very much in the Government’s interests to get that aspect
of the clause correct.
I wonder whether amendment No.
56, which I tabled, does not go closer to meeting the issue that the
Government have got to deal with than the approach set out in amendment
No. 2. Notwithstanding the need to separate privileged and
non-privileged material, the Government must ensure that there can be
no contamination of the fairness of the trial process, but amendment
No. 2 would provide only a series of requirements or hoops to be leapt
through before one could start dealing with the material in the first
place. That is not to suggest that there is anything wrong with the
hon. Gentleman’s amendment, but if we were dealing, for example,
with encrypted material or material that was a mixture of both
privileged and non-privileged content in a documentary form—we
are really talking about computerised records in this regard—it
will be difficult for the requirements in amendment No. 2, such as
those relating to time, to be dealt with satisfactorily. That
is the point that I am putting forward, but I do think that that is a
real issue. I look forward to hearing the Minister’s response to
amendment No. 2 and, in due course, amendment No.
56.
Mr.
McNulty:
First, I can assure the hon. Member for Somerton
and Frome that although I might have either huffed or puffed on his
point about the ECHR, I did not huff and puff. The points that he made
are important, as indeed are those that were just made by the hon. and
learned Member for Beaconsfield. I do not take issue with the import of
what they suggest, but those matters are better dealt with through
amendments to PACE code B. We want to consider placing the criteria for
seized material as an example of some of the things that might be
considered when dealing with removed material, but that is better done
in the PACE codes than on the face of the Bill. That is certainly the
case with regard to the
amendment.
Mr.
Heath:
I am curious to know why the contrary view was held
in the case of the Criminal Justice and Police Act 2001, when it was
felt appropriate to put those safeguards on the face of that
Bill, rather than in PACE.
Mr.
McNulty:
In this case, I have been advised that they are
more appropriately dealt with in PACE code B. Before the hon. Gentleman
intervened, I was going to say that although I am not happy with the
substance of the hon. Gentleman’s amendment—I think that
it is better done in PACE code B—there might be a case for
looking in more detail at his amendment, so as to get the import and
principle of the notion either on the face of the Bill or in the codes.
I accept the starting premise that it goes somewhere. I am not
convinced that the PACE codes are the appropriate place for it; I know
that that is different from the 2001 Act. I take very seriously the
points made about the import of legally privileged
documentation.
11.30
am
That
is not to say that I am rash enough at this stage to resist the
amendment of the hon. Member for Carshalton and Wallington and accept
the amendment of the hon. and learned Member for Beaconsfield. I assure
the Committee that I will take away and consider the thrust of the
subsequent amendment because the matter is so important. I think that
the issue should be covered in an amendment to the codes and that it
should be looked at in some detail to establish the parameters. In the
case of the searches, I am not inclined prescriptively to limit in the
Bill—in the way suggested by the amendment—the ability to
search and seize in what is, in these five clauses, speculative
activity. “I think that I might have reasonable grounds to seize
this document” is the thrust of our deliberations. In that
spirit, I resist the hon. Gentleman’s amendment—not
because he is a Liberal but because of the nature of the
amendment—and ask to take back and consider, if the Committee
allows me, the thrust of the next amendment from the hon. and learned
Member for
Beaconsfield.
Mr.
Heath:
Before the hon. and learned Gentleman concludes, I
think that what I heard him say was that he accepted the principle of
what we were saying, but he does not believe that it should be in the
Bill, but in PACE. If that is the case, it is hard to see why what he
describes as the limiting effect of our amendment in the Bill will be
any less limiting if it were in the PACE codes of conduct instead. That
does not seem to make sense to me. If he accepts that there is a
rationale for being very circumspect about the use of the
powers—and I think that he does accept that and he is right to
do so because it might help to avoid subsequent litigation through
ECHR—what is the substantive difference? He is perfectly
entitled to say that the Government have changed their minds since 2001
and think that it would be better to put it in PACE rather than in the
Bill, but not to say that that would have a different
effect.
Mr.
McNulty:
No. Most insults roll off my back, but I will not
be accused of being learned. Being accused of being a
lawyer—
Mr.
Heath:
I apologise
unreservedly.
Mr.
McNulty:
Thank you. I repeat that in this case, in the
context of these five clauses—I am not talking about a general
parallel between this and the other legislation—it would be
unduly prescriptive to define
the parameters in the Bill in the way in which the amendment does. That
is why I was trying to establish the distinction between this amendment
and the subsequent one that raises the broad principle, which I
endorse. I will seek to return to the Committee to say whether the
issue would be more appropriately placed in amendments to the code or
in an amendment on Report because the thrust is on the principle. The
parameters suggested in the amendment, while going to the point of
principle that we all share, are unduly prescriptive in a search
activity that potentially is more speculative than otherwise would be
the case given what we have already discussed as grounds of reasonable
suspicion. Remember, even in the context of privileged documents, we
are talking about seizing documents for a very limited time to
establish their import and substance and whether it is appropriate and
lawful to seize them in the normal fashion having established what the
contents are. So, it is slightly narrower than the broader face of
things in the other legislation. That is how one is able to agree the
principle but not the prescription and solution to the principle in
this law. Not unnaturally, I favour my solution. I favour the solution
of the hon. Member for Carshalton and Wallington, given that we all
agree with the initial principle, less than the solution of the hon.
and learned Member for Beaconsfield. I have said, in the emollient
spirit that I come to this Committee with, that I shall look in more
detail at the one I favour second to my own—that of the hon.
Member for Carshalton and Wallington—and I shall not entertain
at all that of the hon. and learned Gentleman, not for partisan reasons
but for the reasons I have outlined. With your indulgence,
Mr. O’Hara, because we have effectively had the
debate about the next amendment, for which I apologise, I shall resist
the hon. Gentleman’s
amendment.
Tom
Brake:
I have listened carefully to the Minister. I
acknowledge his emollience. Clearly on these Benches we want to achieve
the same end. If that end can equally be achieved through amendment No.
56, we will not insist on our amendment being adopted. The Minister
indicated flexibility and perhaps when we get on to a fuller debate
about amendment No. 56 he can explain how he will give consideration to
what is contained in that amendment and over what sort of time scale so
that we can be better informed about how he will take the matter
forward. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
The
Chairman:
There has been much allusion to although not yet
debate on the next amendment. I now wish that I had grouped
them.
Mr.
Grieve:
I beg to move amendment No. 56, in
page 3, line 12, at end
insert—
‘( ) Where an item
subject to legal privilege is removed under subsection (2) or retained
under subsection (4) its examination must take place in circumstances
where its contents are not revealed to any person other than that
examining the item for the purposes of separating such part of the
document that is not subject to legal privilege from such part that is
so
subject.’.
We
have indeed already touched on amendment No. 56, but I should
like to say a few words more about
it. I am helped by the fact that the Minister has already raised one or
two of his concerns. Granted that there was once a power in this area
concerning Northern Ireland, we are nevertheless legislating in a new
field. The Minister has acknowledged that the power is a general power
for the seizure of documents. We have discussed reasonableness. The
Minister has made quite a persuasive case why reasonableness should not
come into the picture. So the possibility of legally privileged
material being picked up in the course of this type of investigation
must be real. If so, my personal view is that simply to leave it to
PACE codes is perhaps not adequate. We need to put in the Bill how
the material is to be handled. The Minister acknowledged in his
responses on amendment No. 2 that if he gets this wrong, the
consequences for a potential prosecution of an individual for a
terrorist offence could be catastrophic. That is not in his or the
prosecutor’s interests at all. We need reassurance about what
will happen if a document that appears to contain legally privileged
material is to be separated from a document which may, or is thought
to, contain material that might be used in evidence in a case against
the individual as a potential terrorist or one involved with terrorism,
or indeed for any other purpose of apprehending terrorists. We need to
be reassured that the one will not contaminate the
other.
I am perfectly
alive to the reality of how criminal investigations are carried out. I
was a prosecutor and I did a great deal of prosecution work. I have
worked with police and Customs and Excise prosecuting teams. Unless a
special provision is made, there is a risk of the officers in the case
becoming aware of the content of the legally privileged material that
they have seized unless the message is rammed home to them that it has
to be treated in an entirely separate fashion. The consequences of that
are really serious. That is why we need to make special provision for
the possibility that legally privileged material is seized and that a
separate department deals with it at that stage. Effective Chinese
walls will be required to ensure that the contents of that material are
never revealed to those who are carrying out the
investigation.
That
is the point. If we get it right, it will allow the system to work
successfully and avoid the challenges that I can all too easily imagine
being mounted in a criminal trial. If we get it wrong, there will be
endless scope for lawyers’ points to be made and the risk of a
finding of infringement of the ECHR or of trials collapsing. We cannot
speculate on the endless possibilities of what legally privileged
material might be found and what it might be
about.
For those
reasons, I urge the Minister to accept amendment No. 56, or at least to
assure us that there will be something on the matter in the Bill rather
than in the PACE provisions. Simply having it in PACE is not enough, in
view of the wide power to seize documents that we are conferring on the
police. I hope that the Minister responds positively. I shall listen to
what he says, but to encourage him, I think that I might be minded to
press the amendment to the
vote.
Mr.
Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): Having listened
carefully to the debate, I do not think that there is a great deal
between the Minister and the
hon. and learned Member for Beaconsfield. Amendment No. 56 would improve
the Bill and ensure that the Government’s intents and purposes
are more fireproof to challenges from human rights legislation.
Crucially, it would prevent a trial from being vitiated or collapsing
because legally privileged material has seeped out. I hear what the
Minister says, but the amendment would undoubtedly improve the
Bill.
Tom
Brake:
I rise to say simply that if the hon. and learned
Member for Beaconsfield is not sufficiently satisfied with the
Minister’s response, he will have our support if the amendment
is pressed to a vote. The issue is fundamental. I hope that the
Minister is about to satisfy us by saying how he will take it forward,
and that a vote will not be necessary. If it is, we will be
there.
Mr.
McNulty:
I have made it clear—in the last debate
rather than this one, for which I apologise again—that I think
that the matter can be adequately covered in the PACE codes. However, I
heard what the hon. and learned Member for Beaconsfield said, and I
think that I alluded to the fact that I was almost with him before he
spoke. So I shall vote with him, too. [Laughter.] No, not
really.
I
start from the principle of being convinced that the PACE codes are
appropriate. I would resist over-prescription, as I did in relation to
the previous amendment, but I accept that this matter is important. I
have made it clear that some elements of the amendment are not terribly
useful, such as the implication that one and only one person would be
able to examine a privileged document and could not secure any
assistance. That might not be the intention, but it appears to mean
that the only person who could see the legally privileged material
would be the officer deciding whether it would be reasonably
practicable to separate it from non-legally privileged material.
However, by that stage the document would have been removed or
retained, and the decision that it was not reasonably practicable to
make the separation already
made.
There are some
difficulties with the amendment, but given what the Committee has said,
I am happy to take back my position about suitably amending the PACE
codes, consider the import of what the hon. and learned Gentleman said
about having a safeguard in the Bill, and make an appropriate
suggestion on Report that will hopefully satisfy hon. Members. As the
hon. Member for Meirionnydd Nant Conwy said, there is not a lot between
us, but even if I suddenly have a Pauline conversion and accept the
thrust of the amendment, which I may, I certainly do not accept its
wording, for the reasons that I have given. However, I shall give it
further consideration. I am very open either to putting a safeguard in
the Bill or making it much clearer why the PACE codes are appropriate.
It is not a contentious issue, and I think that we agree on the broad
principles, so let us see where we can go from here. Before Report, I
would be happy to make as clear as I can what I think the solution is.
It will follow the premise of making amendments, where appropriate, to
the codes or at least to the framework of SIs. I always try to do that
when I lead on a Bill. So, in that spirit, in the light of the further
work to which I referred and my promise to discuss the matter in more
detail on Report, I ask that the amendment be
withdrawn.
11.45
am
Mr.
Grieve:
The Minister raised a point about whether my
amendment would confine the revelation of the contents to one person
only. That was not the intention and nor do I think that it is what
would be achieved—we are in danger of straying into matters of
arcane drafting here. The intention—this is what I think would
be achieved—was to confine such revelation to anyone involved
specifically in the task of separating out the two documents. It would
prohibit any contents subject to legal privilege from being revealed to
anyone other than those specialists carrying out that work.
If the Minister was a bit
bolder, he could accept the amendment, because he could always amend it
again on Report if he wanted to. If he could give me a categorical
assurance that he will amend the Bill itself, rather than adopting any
other approach, I would not press the amendment to a vote. However, I
detect—I do not criticise him for this—that he wishes to
keep open the option of amending the PACE codes, which I think is
insufficient. Without wishing to be confrontational, at this stage the
Committee might like sensibly to register its view, which could provide
an incentive for the Government to do what we would
like.
Mr.
McNulty:
I take the hon. and learned Gentleman’s
point about the intended thrust of the amendment. If, on further
examination, it turns out that the thrust and the spirit of the
amendment would be the same as its actual effect, I could be bolder.
However, at the moment, I do not know whether that is the case, which
is why I am resisting the amendment. I am not splitting hairs and it is
not arcane to suggest that the amendment could be read as I alluded to.
We could find ourselves in a strange situation if the Committee votes
down the amendment. I might make further inquiries and decide,
“Oh my Lord! The hon. and learned Gentleman was entirely
right”, but I could not bring it back on
Report— [Interruption.] Correct me if I am wrong,
Mr. O’Hara, but I cannot bring back exactly the same
words on Report that have been defeated in Committee. That is not my
rule, but a rule of this House. In that context, I resist the
amendment.
Mr.
Crispin Blunt (Reigate) (Con): On a point of order, in
order to be absolutely clear about procedure—this is
important—if the amendment was accepted and then, on examination
by the Government, found to be deficient for reasons that currently
escape us, it could be removed on Report by the House or amended to
ensure that it is satisfactory. Given the situation on which we have
agreed, the amendment ought to be
accepted.
The
Chairman:
On Report, the clause, as amended, could be
subject to debate, defeat or
amendment.
Mr.
Grieve:
I am grateful for that clarification. The Minister
keeps referring to me very politely as “the hon. and learned
Gentleman”. I am just getting used to that concept, but the
first thing that I have discovered in that new category is the amount
that one does not know, so I am always prepared to accept his comments
about how the clause might be improved. However, I
would like to press him a little further: if there
is an assurance that we will have such a clause in the Bill, I shall
not press the amendment, but without that assurance, I shall do so.
That is how I shall leave the matter. If he does not respond, I shall
take it that it ought to be pressed to the vote.
Question put, That the
amendment be
made:—
The
Committee divided: Ayes 9, Noes
12.
Division
No.
2
]
Davies,
David T.C.
(Monmouth)
Question
accordingly negatived.
Question proposed, That
the clause stand part of the
Bill.
Mr.
McNulty:
Despite that stunning victory, I will still take
back the principle of what the hon. and learned Member for Beaconsfield
suggested regarding whether to establish more firmly why the matter
should go in the PACE codes, or come back with some formulation of
words for the Bill that captures the import of what he suggests. I have
established, rightly, I think, that, for at least the reason that I
outlined—and the other that the horse had bolted and was long
gone from the stable by the time of the thrust of the last
amendment—it is not practical in the first instance to remove
the legally privileged element. None the less, I will take that back to
consider whether some other formulation captures it or might link the
Bill more strongly with the code. Therefore, despite the stunning
victory, the import and thrust of the debate is not lost, because it
will potentially enhance the import of clause 3, which I urge
the Committee to allow to stand
part.
Mr.
Grieve:
I am most grateful to the Minister for his
comments and I take them in good part. I am not concerned by my lack of
a stunning victory because, in the light of the Minister’s
comments, if I return to the matter on Report and he has not produced
an amendment of his own, I shall alter amendment No. 56 to reflect his
sensible points. Clearly, however, it will remain a live issue and we
have to resolve it satisfactorily. It will be much better that we do
that in the Commons rather than ending up relying on the other place to
do it for
us.
Mr.
McNulty:
Ah, a
threat.
Mr.
Grieve:
It is not a threat; it is a plea to the Minister.
It is a fact. I despair that Bills go through this House, end up in a
state that I consider to be
unsatisfactory and have to be put right elsewhere. It seems to me that
we should be capable of passing Bills to the other place in such good
condition, particularly on issues of this sort, that the other place
does not have to worry about them. Subject to that, I have no further
remarks on the
clause.
Question
put and agreed
to.
Clause
3
ordered to stand part of the
Bill.
| 
