Further written evidence to be reported to the House

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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.
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 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.
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 ]
Blunt, Mr. Crispin
Brake, Tom
Davies, David T.C. (Monmouth)
Grieve, Mr. Dominic
Heath, Mr. David
Holloway, Mr. Adam
Llwyd, Mr. Elfyn
Mercer, Patrick
Wallace, Mr. Ben
Bailey, Mr. Adrian
Brown, Mr. Russell
Campbell, Mr. Alan
Coaker, Mr. Vernon
Gwynne, Andrew
Heppell, Mr. John
Hodgson, Mrs. Sharon
McNulty, rh Mr. Tony
Mountford, Kali
Reed, Mr. Jamie
Salter, Martin
Wilson, Phil
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.
Question put and agreed to.
Clause 3 ordered to stand part of the Bill.
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