EXAMINATION OF DOCUMENTS (Hansard, 20 June 1991)

§ Dr. Mawhinney

I beg to move, That this House doth agree with the Lords in the said amendment.

Clause 22 requires the police and armed forces to make a written record when they exercise their power to examine documents under the clause, and to provide a copy of the record to the owner of the documents. However, the clause does not specify any time limit within which the written record must be provided to the owner of the documents. While that was not a matter of concern to the House when the Government amended clause 22 on Report, it was a matter which concerned their Lordships in another place. It was always the Government's intention that, where practicable, a copy of the written record should be provided at once. That would be especially valuable where documents are used or removed for examination. The amendment is designed to have that effect, and I hope that the House will welcome it.

§ Mr. McNamara

This amendment requires the security forces to provide a written record on examination of any document under the terms of clause 22 as soon as is practicable, and it is a response to an amendment moved in another place by the Opposition. As it responds to our suggestion, we welcome it.

Despite the Government's efforts to amend the clause, it still presents a number of problems. The problem of legal privilege remains, although the clause has been amended to provide for the recognition of such privilege. The amended clause is still defective, because it does not address the practical difficulty identified in the other place —how the determination of legal privilege is to be made.

The difficulty arises when a policeman or soldier finds a document in the course of a search, or has to determine whether it is legally privileged. As drafted, the clause contains an inherent contradiction: it empowers members of the security forces to search such documents to verify whether they are legally entitled to search them.

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We foresee a number of problems. Members of the security forces will be forced to make decisions that are normally in the hands of the judiciary. It is not clear how the power will work in practice. The Government have promised that force instructions will be issued to the police and the Army, but there appear to be no plans to provide the public with guidance on how the operation of the clause will affect them—or, indeed, on the degree to which the force instructions will be made freely available to them. There is a possibility of endless friction between the public and the security forces, and the clause is more likely to hinder the security forces than to help them.

The Government seem to rely on the fact that the power to search and seize documents is included in ordinary criminal law—the Police and Criminal Evidence Act 1984. That is a false analogy, for two reasons. First, such powers are confined to searches of premises; secondly, they are subject to judicial control of the issuing of search warrants. Neither condition applies in clause 22.

506 The Government have tried to make the clause more palatable by inserting the practicability test; nevertheless, we still believe that the Bill would have been better without the clause, which will cause needless confusion. That might as well be on the Government's head, however.