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The noble Baroness said: We feel a reasonableness test is appropriate here. There appears to be a blanket power for a constable to remove any documents which he cannot immediately identify. This touches on the previous amendment. We feel that a constable should have some idea that an item might be of interest. Reasonableness has always been included in such Bills in the past, so why not now? I beg to move.
The Earl of Onslow: I have one small question to fill my small brain with information. Is this procedure different from the one for searching the premises of someone accused, for instance, of murder or another very serious crime, and, if so, how and why?
Baroness Miller of Chilthorne Domer: In support of my noble friend, who made some very good points, I want to draw the Minister's attention to what his colleague Mr McNulty said in the other place. He did not say that it would remove the scope for the police to go on a fishing expedition. This is where I think that the noble Lord, Lord Harris, is perhapsof course I hesitate to use the word naive, given all his experience. The Minister said:
That will limit, in this very serious area, the scope for the police to go fishing.[Official Report, Commons, Counter-Terrorism Bill Committee, 29/4/08; col. 170.]
That does not disallow the possibility of fishing. Whether a search is a fishing expedition will rest on reasonably thinking that the evidence that the police remove from the premises of people who, we must remember, will in all likelihood prove innocentI am sure the Minister can tell me the proportion of people searched and proved innocent and the proportion of those arrested and chargedis of such a nature. Although this may seem a small amendment, it relates to a serious issue.
Lord West of Spithead: The purpose of this amendment is to ensure that there are sufficient safeguards to stop police officers going on so-called fishing expeditions. We do not intend that they should go on fishing expeditions. I hope that noble Lords will take account of draft Code B of the PACE code, which accompanies these clauses and was relaid in the Library yesterday. The draft code makes explicit that the power should be used only when essential and that officers must not remove more material than is absolutely necessary. It makes clear that the removal of documents can have serious implications for their owners, particularly when they relate to business or other occupational activities, such as journalism. One can see how, on occasion, that might happen.
I hope that noble Lords will be reassured that we have set out requirements that, combined with the safeguards in the Bill, will hold the police to account, set out the rights of and protections for the individual and ensure that appropriate recording and reporting requirements are in place to protect the individual from arbitrary interference.
The difference from murder inquiries is that special powers are required for terrorism searches because of the severe consequences of terrorism. Specific powers are required to address this serious category of crime. It is a wider power, and there is no need for suspicion.
I hope that, given the safeguards I have talked about, the noble Baronesses and the noble Earl are reassured and that the noble Baroness will withdraw the amendment.
The Earl of Onslow: The Minister has read out something from the PACE code that goes beyond reasonable. If the PACE code goes beyond reasonable, what is wrong with putting reasonable in the Bill?
Lord Harris of Haringey: Is it not the case that, in carrying out their functions, police officers have to act reasonably and are challengeable if they do not?
Baroness Harris of Richmond: I am most grateful to all noble Lords who have taken part in this mini debate on an important issue. The Minister said that there is no intention to have fishing expeditions. That is the intention. Intentions may be good, but they may also work in other ways. These powers are to be used only when they are essential, but essential is another word I have difficulty with because who decides what is essential?
I would be most grateful if the Minister would reflect on the concerns being expressed by noble Lords on all sides of the Committee before Report, when we may come back to this. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hanham moved Amendment No. 4:
The noble Baroness said: This is also a probing amendment. We seek to find out how far the police can go to extract material potentially related to a
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That is quite important because you could have a very obdurate personno one will be very happy about having people stamping over their premiseswho becomes very obstructive. Are the powers somewhere else and not translated into the Bill, or are they not in the Bill so that we need to look at what could be required? I beg to move.
Baroness Miller of Chilthorne Domer: I support the noble Baronesss amendment and can envisage all sorts of circumstances where it may be useful to include it. The requirement supposes that the person on the premises is able to produce the document in a visible and legible form. That person may not have the required password, and the equipment required to produce it in a visible and legible formfor example, a printermay not be there or may not be working. This practical amendment is worth exploring.
Lord West of Spithead: The noble Baroness raised some interesting points. As was said, this is about information that could be stored in computers on a hard drive or in a digital camera or something like that. It allows one to say, I would like to have this document downloaded. The police are not allowed to take away the equipmentthe camera or whateverbut they can ask for a specific document to be downloaded from it. They can take information that is still encrypted, but they cannot ask for the encryption key to break it. If the person refuses, for example, to download a bit of information or to assist the officer in accordance with the Bill, they are obstructing an officer and, as the Bill says, they face up to six months in prison.
The Earl of Onslow: Is this not self-incrimination? It goes against all our traditions to put someone in prison for six months for failing to produce something that he may feel will be detrimental to him and over which he has a guilty conscience. I recall a case in the ECHR where financial people refused to answer questions; the court found that human rights law had been breached. Are we not going down a very dangerous road when we start to link these sorts of things?
Baroness Miller of Chilthorne Domer: I ask the Minister to define they. Is it the person who owns or has used the computer or any member of the household who happens to be in when the police call?
Lord West of Spithead: To answer the noble Baroness first, it is the person being searched, the person who is using the equipment and is suspected of terrorism, not the householder. There is also the question of whom documents should go back to; we will come to that when we discuss later amendments.
On the question of not releasing a bit of data, if suspected terrorists are holding close to themselves a map or some other document that is annotated in Arabic and will not give it up, that is obstructing the police. Under this Act, they can suffer the penalty of up to six months imprisonment. That is a perfectly valid and sensible way forward. We need to investigate these cases properly, and we now know that so much data are stored electronically and that terrorists are using more complex electronic means more and more. It is therefore absolutely appropriate that we should be able to demand this, because it is an important part of our ability to protect our nation. On the basis of what I have said, I ask whether the noble Baroness will be willing to withdraw her amendment. It is vital that officers can examine electronically stored material for the reasons that I have given.
Lord Mackay of Clashfern: I do not think that the provision mentions who may be required to provide information; it states that the constable may require information, but it does not seem to focus on who may be required to provide it. Someone who is not the subject of arrest might well have control of the computer. Is this intended to apply only to the person searched?
Lord West of Spithead: It is not intended to apply totally just to that person. If there is a lack of clarity on this point, I will look at it in a little more detail and come back to it at the next stage. I would like it to be absolutely clear.
Baroness Hanham: We have been able to dig at a little nugget here. The comments made by my noble and learned friend Lord Mackay and the noble Baroness, Lady Miller, about who is being searched and who has responsibility open the door more widely. The legislation is not clear; it just relates to a search. It may be a search of only one person or of no one, but there might be 15, 16 or 100 persons. Who, then, is responsible for providing information? It is almost certain that we will return to this matter to ensure that we are clear about the position on searches and who is required to give the information. For today, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hanham moved Amendment No. 5:
The noble Baroness said: In the interests of clear legislation, I shall read subsection (4), on page 2, which states:
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.
I am sure that we could spend a lot of interesting time trying to unravel that, but I am afraid that legislation should at least be clear. If it is not clear to the people
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Once the material has been discovered, what happens to it on examination? This subsection seems to be trying to say that any matter discovered should be treated as though it had been discovered in the initial search. Does this mean that if a computer file is decrypted and the police discover that it relates to a non-terrorist-related offence, they can act on thatthey do not have the offence before them but suddenly out of the woodwork comes the fact that another offence is being createdor do they simply have to pretend that they never saw it: this material that they have coughed up in the process of a search for terrorism and which actually relates very much to someone who has conducted a crime of drugs elsewhere? What do they do with that information? Do they hold on to it and say, There is a Chinese wall down here, so I cant see it, or are they entitled to put it into the hands of those who might be investigating the other complaint? If they can act on it, we have the possibility of terrorist legislation again being used inappropriately and not for the matters on which it has been enacted. If they cannot act on it in that way, we are asking officers, who otherwise may have a wide duty, to forget what they have just seen and do nothing more about it.
These provisions set up a precedent of allowing exceptional legislation for terrorism which in a few years the Government could argue should be extended to other offences. There are many offences involving evidence which is encrypted or in a foreign languagewe all know about the child pornography pictures, trafficking and so onbut this legislation is about terrorism. Nowadays there is a nasty habit of people forgetting where legislation starts. It sort of creeps under the door like a flood and is used elsewhere.
The Minister may want to look at Clause 1(4). Although I have drawn his attention to it with some amusement, it is undoubtedly some of the most incomprehensible legislation I have read. Having, I hope, unravelled what it is about, perhaps the Minister would be kind enough to tell me more about these Chinese walls. I beg to move.
Lord Mayhew of Twysden: I have a great deal of sympathy with my noble friends opening remarks. It takes quite a bit of time to unravel quite what this provision seeks to achieve. Are we not in danger of creating some potentially rather oppressive legislation? Clause 1(2) states that a constable can take a document away,
whether he can take it away. When he finds that he could have taken it away, his powers of seizure kick in and he does not have to return it. That is my understanding of the legislation. Why is it necessary to have subsection (4)? What is sought to be achieved? What safeguards would normally apply which are sought to be avoided in this legislation? We have to be very careful not only that the legislation is clear but that it does not, no doubt unwittingly, lead to possibilities of oppression.
Lord West of Spithead: I have considerable sympathy for what the noble Baroness, Lady Hanham, said at the beginning of her speech. At about 4.30 am I was reading these provisions in some detail and that was not a good time to hit this subsection. I have asked for a Speaking Note to explain subsection (4), so perhaps I can outline what it is trying to say. I absolutely take the noble Baronesss point that it has not been put in the clearest terms. Perhaps we can take that point away and look at it. I think that we should be doing what subsection (4) proposes but I am not sure that it has been proposed as cleverly as it should have been.
The provision means that if the police find on examination that a document meets the test for seizure, then it can be seized. Let us say, for example, that the police take away a document in a foreign language as part of a search to which this power applies and find on examination that it is a bomb-making manual or whatever. They can seize the document regardless of under which specified search power the original search was conducted. Subsection (4) is needed because seizure powers arise on and during the search of premises or persons. The fact that a document has been removed to another place for examination will mean that the document is no longer on the premises or the person searched, so the seizure powers will no longer be extant.
Subsection (4) accordingly provides that those powers of seizure will still apply if the documents removed are subsequently found to meet the test for seizure. The amendment would remove that provision and in effect cause legislative uncertainty about whether a document can be seized following the exercise of a power to remove documents for examination. We might end up with a situation where a document was found following examination to be evidence of a terrorism offence but there was no power to seize it because the seizure powers apply only during the course of the search.
This explanation seeks to unpack what the subsection is trying to say. Legally, we could not seize the document because we were not actually on the premises. That is where the powers would lie without this provision.
As to whether the evidence could be used on another offence, if they found, for example, that a download from a computer had something to do with child pornography, that download could be seized although the search was conducted for a different purpose. That can be done under Section 19 of PACE. I do not believe, however, that this provision will result in the inappropriate use of power. The police have to exercise reasonable discretion within the terrorist context, as always.
I do not know whether I have responded to the point made by the noble and learned Lord, Lord Mayhew, but I hope that I have covered the issue. I would therefore be pleased if the amendment could be withdrawn.
Lord Lloyd of Berwick: Like many others, I found this a pretty puzzling subsection; but the noble Lords explanation certainly satisfies me that something along these lines is required.
The Earl of Onslow: Am I right to say that basically this clause states that if we seize something illegally and it turns out to be useful, we can use it?
Lord West of Spithead: I do not think that I would agree with the noble Earl; that is not what it says. We would not be seizing anything illegally. If we take a document away from a place where we have been making a search, where the powers of seizure normally apply, then, in law, when it is wherever we have taken it to, the powers no longer apply and we cannot seize it. This provision means that we will be able to seize it. That is what it is meant to mean. I agree with the noble Baroness that it is not the cleverest wording, which is why I wanted to unpack it. I believe that we need this power.
The Earl of Onslow: Perhaps the noble Lord could come back on Report with a clever subsection so that people like me and even the noble and learned Lord, Lord Lloydwhose little grey cells, as Hercule Poirot said, are infinitely greater than minemight understand it.
Lord West of Spithead: I absolutely think that we should do that. I am always wary of saying the words simple sailor, but I was certainly taxed by it.
Lord Mackay of Clashfern: Instead of what is set out in subsection (4), would it not be easier to draft something along the lines of what the noble Lord has said, thus explaining the reason for including it; namely, that the powers to seize which are available during a search should be available in respect of a document which has been removed under the subsection in question?
Lord Mayhew of Twysden: In answer to the Ministers question, I, too, am satisfied with the purpose of the subsection. It is a great tribute to what he can achieve at half-past four in the morning.
Lord West of Spithead: The noble and learned Lord has come up with a very good answer. Perhaps I may take this away and see what we can do to make it more easily understandable.
Baroness Hanham: I thank the Minister for that clarification. It would probably make this legislation rather better if the subsection were amended, so perhaps the Minister will be kind enough to do that of his own volition, otherwise we will have a go at doing it for him by the next stage. I am grateful for the explanation because it makes it clear that the powers are to retain documentation which is taken away from the premises during a search. I fully understand that the powers are required, but it would be better not to have a muddle later on when someone is trying to interpret the provision.
I also hear what the Minister says about material found that is not related to terrorism then being able to be passed to other branches of the services in connection with other offences. I should like to take that away and think about it, but it seems to me that to leak terrorism inquiries into other areas may not be entirely satisfactory. For today, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 1 shall stand part of the Bill?
Baroness Hanham: Our debate over the past hour or so has opened up some of the tensions that will apply to the first part of Clause 1. I am grateful for the explanations that have been given, but the amendments have highlighted a worrying tendency for the Government to introduce exceptional powers to deal with terrorism and then for those powers to be applied, perhaps inappropriately, in far less justifiable circumstances.
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