Clause
18
Material
not subject to existing statutory
restrictions
Mr.
Grieve:
I beg to move amendment No. 66, in
clause 18, page 32, line 27, leave
out paragraph
(c).
Clause 18 is
about material that is not subject to existing statutory restrictions.
I said earlier—the Minister will doubtless confirm
it—that the material will be held by a law enforcement
authority. However, will he first explain what is the material not
subject to existing statutory restrictions? That would be helpful for
the purposes of our debate. The clause provides that the material can
be used
“in the
interests of national
security,”
and, as was
mentioned earlier,
“for
purposes related to the prevention or detection of
crime,”
which must mean
that there is a possibility of it being taken into court.
Subsection (3) states that one
condition is that the material has
been
“otherwise lawfully
obtained or acquired by the authority for any of the purposes mentioned
in subsection (2).”
What
does that provision in fact cover? That is the first question that I
want to ask the Minister, and in a sense, there is not much point in my
seeking to amplify the matter until we have his explanation about the
material that the provision covers.
5.15
pm
Mr.
McNulty:
Clause 18 puts DNA and fingerprint material that
is not currently subject to statutory restriction on a statutory
footing to permit law enforcement use for certain purposes. That
material includes—I need to determine whether this is the
definitive list, because I am not sure whether it is—samples
obtained covertly under part 3 of the Police Act 1997 or part 2 of the
Regulation of Investigatory Powers Act 2000. For example, under the
1997 Act, a warrant may give the police power to enter someone’s
home and take away property to obtain a sample. RIPA authorises both
covert surveillance and the use of covert human intelligence sources. A
good example is when a person under surveillance discards a cigarette
or drinks container, which can then be collected covertly and a sample
taken. It also includes material supplied by another law enforcement
authority, which by virtue of clause 18(5) includes both domestic and
foreign law enforcement authorities—for example, the French
police, but I do not know
why.
Finally, it
applies to samples otherwise lawfully obtained in the interest of
national security for the prevention or detection of crime, the
investigation of an offence, the conduct of a prosecution or for
purposes related to the identification of a deceased.
Such material might include material obtained during a criminal
investigation other than through the exercise of covert
powers—for example, material lawfully provided by a body other
than another law enforcement authority, such as the intelligence
services of another
state. I hope that my
introduction has been useful and I shall make one last point before the
hon. and learned Gentleman replies to the substantive debate on the
amendments. We are putting this into statute to clarify that the
retention and use of such material is in accordance with our
obligations under article 8 of the European convention on human rights,
which stipulates that any interference with an individual’s
privacy must be
“in
accordance with the
law.”
For
covertly-acquired material particularly, the law should set out how and
when such material should be used. In the same way that we have
standardised the purposes for which PACE, PACE (NI) and Terrorism Act
2000 samples can be used, that is what we have sought to do here. I
hope that that is a useful introduction before we come to the substance
of the
amendments.
Mr.
Heath:
The Minister has been helpful in setting out the
scope of the clause, and the example of the French police was extremely
useful. I wonder at what point the adverb “lawfully”
applies in qualification of “obtained or acquired” in
section (3)(c). Clearly, it is lawful for the British security service
or police lawfully to obtain or acquire information that has unlawfully
been obtained or acquired by a law enforcement agency under another
jurisdiction. Does “lawfully” apply to the source or
simply to the point of acquisition by the British law enforcement
authority?
Mr.
McNulty:
I think, in all seriousness, that it would be the
former rather than the latter because we are signatories to all sorts
of conventions and treaties, including against torture and so on. The
Government’s position starts from that broadest concept when
defining
“lawful”.
A
small point that is probably part of the confusion is that PACE and
PACE-generated data and samples relate to the police station and the
process post-arrest. The provision is about standardising some of the
data and other matters secured outside the police station and outwith
the PACE process.
The
hon. and learned Gentleman was right, and I hope that my explanation
was useful in exploring some of the finer details of the amendments,
which I shall
resist.
Mr.
Grieve:
I am sorry if my presentation placed the Minister
in difficulty. That was not my intention and I wanted to obtain
clarification. As I explained, many of these amendments are probing
amendments to enable the Committee to understand what we are being
asked to nod through.
May I take the matter a stage
further by going back to something that was raised earlier? The
Minister will see that in subsection (2)(b) one reason for the
retention of material is the conduct of a prosecution. That raises some
practical issues. Normally, DNA or fingerprint material that is used in
a prosecution will have been obtained in a statutory standard form
through the PACE rules in a police station. I can see that there may be
cases in which DNA has also been lifted from the scene of a crime, and
a police officer or one of the forensic officers can give evidence in
court to say that that is what he did so that there is the
match. If I
understand what the Government seek to do in this sharing of data, it
is at least to provide for the possibility henceforth that material
that has been acquired by the security and intelligence services could
also potentially be used for that purpose. I do not think that it needs
me to tell the Minister that that raises some potentially rather
complicated issues in relation to public interest immunity, and
presentation of evidence in court. Is the Minister in a position to
comment—or does he wish to comment during the course of the
Committee—whether it is likely that material that comes into
this category could realistically be used without disclosing how or
where it has been obtained because that might cause difficulty in the
presentation of the prosecution case? It also raises another
issue.
I may have
this wrong, but by virtue of being placed in clause 18 in this fashion,
it also comes squarely into the category of unused material. We dealt
with that when we discussed intercept evidence, which hitherto has been
excluded from any consideration in the court process. What will the
consequences be if unused material comes into this category? It may
also be subject to the public interest immunity and therefore excluded.
I just wondered whether that had been thought through by the Government
and the various agencies when they drew up the measure. It may be that
it provides a very powerful tool for widening the scope of the sort of
evidence that may be available to prosecutors. I am not against that. I
wonder, however, whether it might have the unintended consequence of
creating complications in relation to this material because the
material might not readily be usable in court as unused material,
thereby creating difficulties. I just wondered whether the Minister
could help us on that point. That is the real issue behind the probing
amendments.
Mr.
Heath:
The hon. and learned Member for Beaconsfield has
very clearly set out the concerns that I touched on earlier. I have two
issues with this clause, and neither of them are to do with the
effective sharing of information and the making of better investigatory
powers. The first point has just been touched on, which is the extent
to which the embodiment of information from the security and
intelligence services into police evidence, which may then be relied on
in court or may have admissibility, causes some of the complications
with which we are very familiar because of what we have been told about
intercept evidence. It seems to me that that is a real possibility and
one that we should be aware of before we perhaps cause an unintended
consequence to the security and intelligence
services.
I think that
the Minister allayed my principal concerns in his reply to my earlier
intervention. My second concern is that the process could be used, in
effect, to launder inappropriate material to a point at which it
becomes lawful and admissible, but when its
provenance is rather more dubious because it has been unlawfully gained
from sources outwith the British law enforcement community. It would
worry me if such material became admissible in a court of law and was
used for evidential purposes, and if, as a result of the procedure in
clause 18, it became the property of the British police service. I
think that the Minister has reassured me on that. Perhaps the hon. and
learned Gentleman is about to un-reassure
me.
Mr.
Grieve:
It seems to me that it is most unlikely that such
material would be improperly used in court, because court procedure
would ferret around to unearth whether its provenance made it unusable.
However, that might well cause the very difficulties on which I
commented earlier to the Minister and on which I sought
clarification.
Mr.
Heath:
The two issues are linked—they are two sides
of the same coin. Those concerns, which have been clearly expressed
from the Liberal Democrat Benches, are not destructive, but
constructive. We are trying to make the clause work and questions
remain to be
answered.
Mr.
McNulty:
I accept that. If the only thrust of the clause
was to get security service data into shape to make it presentable in
court—that might happen, but I shall come to that in a
moment—I would share many of the hon. Gentleman’s
concerns. In actuality, however, it is t’other way around. This
is more about affording the security services the opportunity to
utilise the national DNA database and other databases alongside their
own, for investigative, disruptive and other purposes. For reasons to
which I alluded earlier, I would find it very
surprising—although this would not be impossible—if
security service data and information were to be used in court. That
would do nothing to change the evidential trail, or to challenge or
change disclosure rules or the investigation or provenance of evidence
before the court; both hon. Members quite properly talked about the
latter. I am almost arguing the point from the other way around. The
clause is about permitting the security services to do far more with
police and other data for their purposes—principally
intelligence and disruption—rather than the other way round, as
the hon. Member for Somerton and Frome mentioned. None the less, that
is important. As I suggested, it would present the security services
with huge possibilities—I gave examples earlier—that
currently the law does not afford
them.
I have been in
my ministerial role for nearly two years, so I understand that,
increasingly, operationally the security services and the police are
working closer together. From talking to those concerned, it is evident
that there is an interesting cultural clash. Happily, for the country,
that is changing rapidly. However, up until very recently, the
police’s role has been to secure the evidence and evidential
trail, with a view to presenting it in court, to be clear about what
can be disclosed to the other side in court, to prepare their case,
secure a prosecution by the prosecuting authorities and allow and
afford the accused their day in court. The role of the security
services, which is blurred by life-and-death considerations, is to
watch individuals, to get networks together, to see what people are up
to and to disrupt
them—job done, bomb or explosion avoided. Of old, on that side of
the equation, there was less concern about the evidential trial and
what a judge might say. Equally, for the police there was less concern
about what the arrest and subsequent activities would do to the
intelligence and information gathering activities carried out by the
service. They are going very much in that
direction. With the
advance of counter-terrorism units and collocation of service and
police round the country, the police are learning very sharply and
quickly about the needs and desires of the intelligence services in
doing their job and the intelligence services are learning more about
what the police need in terms of an evidential chain to do their part
of the job. This measure simply draws those two elements closer
together so that the service can utilise DNA databases and other things
to do its job far more readily. Were any of the information and
intelligence that it receives to end up as part of an evidential chain
in court, all the rules of evidence, including disclosure and
provenance, would come into play. This measure will not change that in
any way, shape or
form.
I understand the
concerns of hon. Members, but do not think that they are germane or
relevant to the clause. Under clause 18, I think it is more likely that
the service will utilise police databases, than that service
information will be used in the courts. If it is, the normal safeguards
and frameworks set down in law to protect the individual before the
judge will remain. The clause will change not a jot of that side of the
equation.
5.30
pm
Mr.
Grieve:
I am reassured to hear that. I assume from that
explanation that the Minister does not see the potential problem, from
the insertion of the words “conduct of a prosecution”, of
fishing expeditions directed at the material in the databases of the
security and intelligence services. I simply flag that up. I can see
that there would be ways of protecting those services from such
intrusion by invoking public interest immunity. However, on the face of
it, the juxtaposition of the words “conduct of a
prosecution” with subsection (3)(c) seems to at least raise the
possibility that that could happen. Perhaps I am worrying about
nothing.
Mr.
McNulty:
I think that point is included because that
possibility exists, but it is not the main reason behind the clause. I
cannot in all candour exclude that as a possibility. However, that
point is not in there as a device for the execution or advancement of a
prosecution.
Mr.
Grieve:
I am grateful to the Minister. This has been a
helpful debate. As I explained, these are probing amendments and if I
flagged up an area of concern, it is very much for the Government and
not for me. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Mr.
Grieve:
I beg to move amendment No. 67, in
clause 18, page 13, line 32, leave
out
‘or disclosing it to
any person’.
The
Chairman:
With this it will be convenient to discuss
amendment No. 68, in clause 18, page 13, line 32, leave out
‘person’ and insert ‘law enforcement
authority’.
Mr.
Grieve:
The amendment concerns the scope of uses to which
the material that is not subject to existing statutory restrictions can
be put. Subsection (4)(a)
states,
“the reference to
using material includes allowing a check to be made against it, or
against information derived from it, or disclosing it to any
person”.
That is a pretty
wide permission. As I understand it, it is not confined to law
enforcement agencies, to those involved in prosecuting an offence or to
those representing a defendant, but is open to anybody. I hope that the
Minister will forgive me for saying that on the face of it, it seems as
if that permission runs a coach and horses through
RIPA.
Amendment No. 68
would replace the current wording with “law enforcement
agency”. However, that might be too restrictive. I wonder if the
Minister will help us to understand the reasoning behind choosing an
expression that is potentially so broad as to allow material in this
category to be disclosed to
anybody.
Mr.
Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): May I probe
slightly further? Are there any statutory bodies to which the Minister
wishes to refer in responding to the hon. and learned Gentleman? Would
Her Majesty’s Revenue and Customs come within “any
person”? I know that a Department would not normally be referred
to as a person, but would it be possible to disclose this information
to that kind of Government
Department?
Mr.
McNulty:
Although it may be rather clumsily phrased, the
point about any person relates entirely back to the reasons established
in clause 2, which is where the definitions and limitations prevail. It
clearly does not refer to anyone in subsection (2) who may need the
material for the interests of national
security.
Mr.
Grieve:
In a funny way, this brings us back to the
argument about the scope of the words “interests of national
security”. Clearly, if it were confined to the prevention or
detection of crime, the investigation of an offence, the conduct of a
prosecution or the identification of a deceased, a whole series of
limiting factors is already provided which make it pretty clear who
that person is likely to be. But the interests of national security is
a very wide concept, as the Minister has accepted. This seems to place
on a statutory footing the right of the Secret Intelligence Service to
give to anyone, anywhere in the world, material relating to DNA
samples, profiles or fingerprints if it is thought the interest of
national security would be served by
it.
Mr.
McNulty:
I take the concern. The hon. and learned
Gentleman will know that in the first instance many of the people
concerned, to answer the hon. Member for
Meirionnydd Nant Conwy, come under clause 18(5) where we talk about
what constitutes a law enforcement authority and the rather broad
definition of a police force. Sharper members of the Committee
will note that the one set of bodies that is not there is the Security
Service and the Secret Intelligence Service.
As I understand it,
the main import of the word “anyone” is to go beyond the
notion of police and law enforcement agencies as identified there
precisely to include the Security Service. We arrive at that point in
this rather convoluted but entirely proper legalistic fashion, by
referring back to clause 2(a), (b) and (c) and, by definition, once we
have exhausted ourselves working through who might be the relevant
agency for those subsections, we arrive at all the law enforcement
agencies, all the police forces as suitably defined and everything but
the Security Service and the SIS.
That is the
convoluted explanation why, as I understand it in my humble, unlearned
fashion, it says “anyone” there. If, God forbid, I have
misled the Committee in any way, I will stand corrected. But I get no
immediate sign of that from the people on my left who are not in the
room, although one of them is now scribbling away. But that is what I
presume is the configuration and interaction between the various
aspects of the architecture. [
Interruption.
] Yes,
that note was helpful, it simply confirmed that what I said was
right.
Mr.
Grieve:
This has been very helpful. The Minister is right.
As the Secret Intelligence Service and the Security Service do not come
within the definition of a law enforcement authority—the point
that I made to the Minister was a bad one: it may arise in the context
of clause 19, but it does not arise in the context of clause
18—it must therefore follow that they could not make a
disclosure to any person, although, oddly enough, the police could do
so in the interests of national security, which is a much wider concept
than the prevention of
crime.
Perhaps I
should not get too worried about that subject, but on the face of it
the police and all the other enforcement authorities, including the
Serious Organised Crime Agencies and commissioners for Her
Majesty’s Revenue and Customs could disclose to any body in the
globe if they thought it was in the interests of national security to
do
so.
Mr.
Llwyd:
I am just trying to be helpful in my own little
way. I accept the explanation given by the Minister earlier about the
words
“or disclosing it
to any person”.
However,
one has to wonder why clause 19 explains fully that there is a right to
disclose to the security
services.
The
Chairman:
Order. We have not yet come to clause
19.
Mr.
Llwyd:
Indeed, but I shall finish now, if I may,
Mr. O’Hara. I wonder whether that takes away from the
explanation given by the
Minister.
Mr.
Grieve:
The hon. Gentleman may well be right. When we come
to clause 19, which I hope we will shortly, we will be able to tease
that out. Clause 19 is in no way identical to clause 18, because the
former is partly concerned with giving people necessary immunity to
talk to the security services in
circumstances that might otherwise be in breach of current laws on data
protection. There are many issues here, but we can consider them
later.
The Minister
has provided me with the reassurance that this provision is about the
law enforcement agencies—I have got that—although, as I
say, it is curious that there should be such a blanket right of
disclosure in the interests of national security to any person anywhere
in the world. However, that may be inevitable because any other attempt
at definition would leave out of the loop people who have a legitimate
right to receive such information. The Minister will understand why I
sought to substitute the words “law enforcement agencies”
for the current wording—perhaps one could even say
“individuals involved in law enforcement”—because
I assume that such people are being specifically aimed at. He may wish
to reflect on that or may conclude that my anxieties, or the points
that I have raised, are misplaced. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
18 ordered to stand part of the
Bill.
| 
