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There have been many examples recently of local councils using RIPA and terrorism legislation for purposes completely different from the ones that the legislation was ever set up for. We have to guard against legislation being used inappropriately at a date long after anyone who had anything to do with it is still dealing with it. We need to ensure that the Government implement safeguards to prevent this legislation from going the same way.
The police in Northern Ireland enjoyed exceptional powers because of the long-term troubles. As the situation there has become normalised, the Government have decided that these provisions should be saved and the process extended to England and Wales. The police in England and Wales have not asked for these powers; the Northern Ireland police did not want to lose them. Using this as an example, the Government’s impulse always seems to be to level up and to choose the most draconian solution.
Given that the Government’s tendency is to gold-plate, what is different about these provisions and the ones that apply in Northern Ireland? Have the Government directly translated the rank of officer and the length of time allowed—to go back to the earlier amendments—or have they quietly expanded the provisions because they think that they might be useful? Many of the powers in the Bill, as we understand it, are taken from the Northern Ireland legislation. Is that now appropriate within the terms of Clause 1?
Baroness Miller of Chilthorne Domer: I am grateful to the noble Baroness for allowing us to reflect on the whole of Clause 1. I again raise the question that I asked the Minister during the debate on one of the amendments about the proportion of people who have been searched but who are innocent, as opposed to the number of people who are prosecuted under the terrorism legislation. Obviously a high proportion of innocent people will end up being searched. Unless those searches are seen to be fair and conducted in an irreproachable manner, the likelihood is that that will cause tremendous upset in communities. That is of deep concern to us.
The Minister referred to the fact that officers might be looking for terrorist material and instead find child pornography. That is an emotive subject and the Committee would probably agree that, with that degree of seriousness, the police might be justified in taking action. However, it is much more likely that they would find that teenagers in the house had been downloading music material to listen to or films to watch. That is illegal because it contravenes copyright law, but for the police to take action on it after searching under terrorism laws would be a difficult step to take. As I say, it would be counterproductive. I am sure that the Minister is aware of the implications that that kind of behaviour could have for community relations.
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Clause 1 has rightly been closely scrutinised and there is sufficient material to come back with on Report. I am grateful to the Minister for saying that he will take away and look at certain matters, because there is room for improvement.
Lord West of Spithead: I have sympathy with a great deal of what both noble Baronesses have said. We have to be careful that we do not move towards a Big Brother-type society. I know that the Committee is conscious of that; I certainly am when I am sitting at my desk in the Home Office looking at these issues. To digress slightly, I would like to look at the totality of all legislation and the possibility of squaring some of it away, but that is beyond what we are talking about today.
We have a large number of safeguards in the Bill. It is proportional to what we want to achieve, and what we are trying to achieve is valuable for national security. The noble Baroness, Lady Miller, asked me about the numbers that have been stopped and searched, but I am afraid that I do not know that off the top of my head. I shall get back to her in writing.
I suppose that it was very naughty of me to use the example of child pornography. It is desperately emotive and you think immediately, “Wow, that will get everyone going”. The noble Baroness spotted that one. It would be wrong if the police ignored serious things like that, but there is a certain proportionality with the police. They use their judgment and generally they are very good at it. She gave the example of downloading music; I would hope, although I would not want to put it in legislation, that they would use their common sense in that case. She is right that, in terms of our Prevent Strategy, these things have an impact on, for example, Muslim society. We have to be careful and we have to be certain that we are not doing things that are wrong, biased and unfair.
With regard to translating across from the Northern Ireland legislation, I understand that the police in this country expressed their support for that during the consultation. I do not think that they were banging the drum and demanding it, but they expressed their support for it. As the noble Baroness, Lady Hanham, says, the Northern Irish police were keen that this should still be there, for the good reasons that we know within the Province. It is therefore right that we do it in this way.
As I have said, in recognition of these wide-ranging powers we have added a substantial number of safeguards, found in the clauses that include protection for items subject to legal privilege; a requirement to make a record for the removal; strict time limits for the retention of documents; access to the documents and the right to request a copy of them by the specified persons; and prohibition of the police photocopying the documents unless it is to supply a copy after a legitimate request.
We have also proposed, as I mentioned before, amendments to the PACE Code of Practice B, a revised version of which was put in the Library yesterday. In those amendments we set out how the police should discharge the power. They include a paragraph specifically stating that officers must be careful that they exercise these powers only when it is essential and that they do
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This power is important. It will allow the police to gather as much information as possible during terrorism-related investigations. That is for the good of the nation. It will make us safer, with all those caveats for looking after and safeguarding people. I therefore think that Clause 1 should stand part of the Bill.
Baroness Hanham: I thank the Minister for that reply. I make it clear that we are not trying to undermine this legislation; we want to ensure that it is used appropriately and that people are not caught up in these investigations who should not be. That is not to say that we do not have sympathy with some of this; we appreciate the problems. I am grateful for his explanation.
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Clause 3 [Items subject to legal privilege]:
Baroness Harris of Richmond moved Amendment No. 6:
6: Clause 3, page 2, line 44, at end insert—
“( ) 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.”
The noble Baroness said: The safeguard of legally privileged documents is fundamental to our legal system. The amendment is about the difference between the proposals and the operation of the Criminal Justice and Police Act 2001 in relation to 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 who are required to carry out the determination or separation, and the apparatus or equipment that is necessary or appropriate to carry it out. Can the Minister explain why those caveats are included in the 2001 Act but not in this Bill? I beg to move.
Baroness Hanham: I support the amendment. Clearly the catching up of legally privileged documents within such a search could prejudice what the police are trying to do. There must be some way of separating out legally privileged documents or material so that that does not happen. The noble Baroness is right that there needs to be some clarity. It comes back to my Chinese walls and the question of how much you are allowed to remember and how much to forget of documentation that you are not entitled to have seen.
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Lord West of Spithead: The noble Baronesses have both raised an important point. We understand the need to strike an appropriate balance between the protection of legally privileged documents and the ability of the police to conduct effective searches as part of their terrorism investigation or, indeed, as part of their investigation of any offence. I think that the clause maintains that balance.
I appreciate that, as the noble Baroness mentioned, the amendment seeks to achieve safeguards similar to those already contained in Part 2 of the Criminal Justice and Police Act 2001 in relation to determinations and separations under Sections 50 and 51 of that Act. However, it is important to note that the factors in this amendment, lifted from Part 2 of the 2001 Act, do not apply to the provisions in that part on legally privileged information. The provision in Clause 3 is largely modelled on that in Section 54 of the 2001 Act.
While these factors or criteria may be used when considering whether legally privileged material that has been removed can be separated, we should not seek to prescribe the circumstances for separation in relation to terrorism-related investigations, as we would not do in relation to the seizure of legally privileged information under the more general powers in Section 54 of the 2001 Act. Instead, we should allow that to remain at the discretion of the officer in charge of the investigation. Therefore, I do not wish to have criteria specified on the face of the Bill that would adversely impact on the effectiveness of that terrorism investigation. For those reasons, I ask the noble Baroness to withdraw the amendment.
Baroness Hanham: Does that mean that if, in a search, an officer—we are talking about a constable, not an inspector—comes across information or correspondence between the person whom he is searching and their legal adviser, he is still entitled to pick up that material and take it away while he thinks about it? That would seem to breach all the protocols for legal material and access to a solicitor.
Lord West of Spithead: The way that the noble Baroness has described the situation is not correct. If a document clearly showed a dialogue between the person and his lawyer, the officer could not take it away. If he takes something away that is written in Arabic and then finds out when it is translated that that is also the case, it cannot be looked at. However, if a document contains a letter between the lawyer and his client and underneath it are some annotated maps, for example, the police can separate those out. They can take that document but are not allowed to use any of the legally privileged data when those are being examined at the police station. They have to be separated out and the other material can be looked at. That is to prevent people from sticking a covering letter between them and their lawyer on the top of a document so that it cannot be taken away. The legally privileged documents are not allowed to be used in any way whatever—indeed, they are not allowed to be taken, if it is clear that that is what they are.
Baroness Harris of Richmond: I am grateful for the support of the noble Baroness, Lady Hanham, on this
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Amendment, by leave, withdrawn.
On Question, Whether Clause 3 shall stand part of the Bill.
Baroness Harris of Richmond: It is a long-established principle of search and seizure that police may only seize documents covered by the terms of the search warrant or relevant statutory power. For police to take documents outside of the terms of the warrant or statutory power is not only unlawful but also very likely a serious violation of the owner’s right to privacy, especially if the documents are legally privileged. Despite these very well established principles, Clauses 1 to 9 introduce a series of sweeping provisions to enable the police to seize documents as part of a search, even though they do not know whether the documents are lawfully part of the subject of the search.
The power to remove legally privileged documents is an especially disproportionate interference with the right to respect for privacy under Article 8.1 of the European Convention on Human Rights and the common law right of access to legal advice, including the right to communicate in confidence under the protection of legal professional privilege. Given that there is no power to take away legally privileged material by way of an ordinary search warrant, other than under the exceptional terms of Part 2 of the 2001 Act, and given the greater safeguards of Part 2, we on these Benches think there can be no justification for allowing such a broad, unfettered power.
Lord West of Spithead: I touched on this in my previous answer. I must make it clear that legal privileges are rightly there to protect lawyer/client confidentiality. That is why this clause provides that a document may not be removed or retained if it is subject to legal privilege. If a document is clearly subject to legal privilege, it cannot be taken away or retained. The only exception is when it is not reasonably practical for the legally privileged item to be separated from the rest of the document. That can happen when there is a mixture of stuff, some legally privileged, and some stapled on. It could be something which includes correspondence with a lawyer but contains lots of other information. This is very infrequent but we do not believe it should stop the police from examining the remainder of that document, which is not subject to legal privilege. Where that is the case, the whole document may be retained but the legally privileged information must not be examined except to see that it is legal. If it is, it cannot be looked at, unlike the rest of the document.
This is a standard provision. There is a similar provision making an exception for the return of privileged items where they are contained in other property in relation to all statutory powers of seizure exercised by a constable. That is set out in Section 54 of the Criminal Justice and Police Act 2001, on which Clause 3 is based.
This is not an erosion of protections afforded to legally privileged material; rather, it is a sensible provision in response to a practical difficulty that we know can
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This does not change the protection of legally privileged material and it is not in the interest of the police to examine such material beyond what is allowed by the provision. Any information taken or derived from a legally privileged document is likely to be ruled inadmissible by the trial court and could allow the defence to raise abuse-of-process arguments about the safety of the whole trial. The police are fully aware of this. Inappropriate examination of legally privileged documents by the police does not happen at present in relation to seized documents, and I see no reason to suppose that it will happen in relation to the exercise of the power.
It is clear that we must strike the right balance—I understand why the noble Baroness has raised the point—between the importance of thorough searches in terrorism cases and the proper protection of legally privileged documents. The clause strikes that balance and is not an erosion of protection.
Baroness Harris of Richmond: I am grateful to the Minister for responding in the way that he has. It is a little bit like living in a parallel universe: you can look at part of a document and might find something in it that is not to be looked at—and, gosh, you had better hide it behind your back and make sure that you do not look at it because it is privileged. You take it away, but you have to be very careful. Being able to look at some and not all of a document, and saying that part of it is privileged, is difficult to try to understand. We oppose the Question that Clause 3 stand part of the Bill simply because of that difficulty. However, the Minister has gone some way to reassure me. I still think that it is a very difficult area and we may come back to it.
Baroness Miller of Chilthorne Domer moved Amendment No. 7:
7: Clause 4, page 3, line 43, at end insert “, and
( ) state the reason the document is believed to be material to the investigation.”
The noble Baroness said: In moving the amendment, I probably risk the noble Lord, Lord Harris, accusing me of being bureaucratic. The intention behind it is further to explore how checks as to what it is reasonable to remove will take place. The amendment suggests that the constable should state the reason a document is believed to be material to an investigation. Some documents will be self-evidently material, whereas it will be hard to see why others could be. It is for that reason that I have tabled the amendment. I refer the Minister to our discussion some moments ago about confidence among members of the community that only what is absolutely necessary for the prevention of
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Lord Mayhew of Twysden: I support the amendment, at least in a probing capacity. It bears upon concern that we have already ventilated today that legislation should not be oppressive in its application. Fishing expeditions into other people’s documents have always been regarded by the law as potentially oppressive. To be legitimate, there must at least be reasonable grounds for believing that they are necessary in the interests of justice. Those grounds should be disclosable.
12.45 pm
There is a good example of the formulation that the amendment argues for, which adds to the requirements of the record of removal, in Clause 24(2), which deals with a report of an operational need for further extension of a maximum period of detention. The report has to be made by the Director of Public Prosecutions or others and must state that,
- “each of the persons making the report is satisfied that there are reasonable grounds for believing that the detention of one or more persons beyond 28 days will be necessary for one or more of the purposes mentioned in subsection (3) below, and ... give details of the grounds for that belief”.
I support the formulation in that context. The same reasoning justifies the insertion of the text which is the subject of the present amendment. I hope that that may commend itself to the Minister.
Lord Harris of Haringey: I am grateful to the noble Baroness, Lady Miller, for suggesting a line of argument on this. I was not on this occasion going to oppose her amendment on the basis that it was over-bureaucratic, but, to use the words that she used earlier, because it was perhaps naive.
I am not quite sure how, in the course of an investigation, it will be appropriate for police officers to say exactly how a particular document might fit into a line of inquiry which may have been generated by intelligence, or something which has happened which would not otherwise be known to the person who is being investigated but might materially alter the way in which they behaved were they to know that. The amendment seems to hand somebody who may turn out to be a potential terrorist substantial information about the cause, background and how much information that the police already have.
The danger of the amendment is that the reason given would be of such extraordinary generality and banality that it would be meaningless. It is clear that to state the reason as being that the constable concerned thought that it might fit in with the general line of the investigation which was taking place would not serve the purpose. If the noble Baroness is concerned that there should be the possibility of an audit after the
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