HC Deb 06 March 1991 vol 187 cc394-400
Mr. Jim Marshall

I beg to move amendment No. 5, in page 15, leave out lines 31 to 48.

Madam Deputy Speaker (Miss Betty Boothroyd)

With this it will be convenient to take Government amendments No. 40 and 41.

Mr. Marshall

I hope that amendment No. 5 obtains the unanimity given to Government amendments Nos. 16 and 17.

Clause 22 gives the security forces the power to examine and remove documents found in the course of searches of premises, vehicles or persons. As the Minister will remember, in Committee we tried to amend the clause. I believe that he had some sympathy with our arguments but was not prepared to accept our suggestions.

We are returning to this subject because we are still unhappy with clause 22 and we are not convinced that amendments Nos. 40 and 41 will be an improvement. We believe that they will make the clause unworkable. That is why we continue to press for the emasculation of the clause. The amendments, if agreed to, would make the clause ineffective.

Lord Colville of Culross ruled out the proposed innovation in the Province until such time as the relevant Police and Criminal Evidence Act provisions had been tested in the courts. The Minister will recall that that statement appears in paragraph 2.9.6 of Lord Colville's report. Lord Colville alluded to difficulties that the proposed power would create: I have a reluctance to recommend extensions of emergency powers, especially when they expand the powers to search. Private papers are not lightly to be laid open to a rummage. That is strong language for Lord Colville. I am sure that the Minister agrees that the consequent confrontations could give rise to considerable potential friction between the security forces and members of the public.

As we said in Committee, we believe that the penalties that are attached to refusal to co-operate are excessively severe. It should be recognised that many ordinary people will be incensed by these draconian powers. Any premeditated attempt to disrupt a search is already covered by existing law—for example, obstruction, breach of the peace and other offences within the criminal code. The penalties that are attached to offences under the clause are excessive and unnecessary, given the provisions of the criminal law.

I congratulate the Government on tabling amendments Nos. 40 and 41, to the extent that the Minister accepted some of the arguments that we advanced in Committee. I presume that the Government's amendments are designed in part to try to meet the criticisms that we expressed at that stage. The Minister will recall that, in Committee, we prayed in aid in support of our views the Law Society of Northern Ireland and the Bar Council. I hope that the Minister has had discussions with those two bodies. I hope also that he will be able to convince us that those two bodies think that amendments Nos. 40 and 41 are suitable.

As I understand amendment No. 40, it is an attempt to introduce the concept of legal privilege so that certain documents will be exempt from the power that is defined in the clause. I am sure that the Minister will agree that that concept was absent as the clause was drafted originally.

We welcome the concept of legal privilege. Indeed, it is one that we introduced in Committee. We have grave doubts, however, about the practicality of the clause if amendment No. 40 is agreed to. On what basis is it possible for a soldier at a checkpoint to determine whether an item is subject to legal privilege? A check can be made, but that will involve the soldier reading the material, and by reading it he would be committing an illegal act. How can the Minister reconcile that? A soldier can only ascertain that a document is legal by reading it, but, by doing so, he commits an illegal act.

The new subsection 2A strengthens the argument for the complete removal of an unworkable and counterproductive clause. Given the Government's view on the operation of PACE in the Province, the remainder of Government amendment No. 40 is ironic. In Committee, the Government rejected the PACE-type safeguards we proposed on the ground that they would lead to unnecessary bureaucracy.

Amendment No. 40 is a cynical attempt to amend the unamendable rather than accept that clause 22 is impractical. Unless I receive assurances from the Minister, we intend to press amendment No. 5 to a vote. We have grave doubts about the practicalities of amendments Nos. 40 and 41—we trust that the Minister will be able to give us further reassurances about them—but, despite those doubts, we do not intend to oppose the amendments in the Lobby.

Dr. Mawhinney

I am sorry that the hon. Member for Leicester, South (Mr. Marshall) used the word "cynical", as it was a departure from his normal generosity of spirit when we have not agreed on the Bill on the past. I am also sorry that he believes that amendments Nos. 40 and 41 are so unappealing.

One of the terrorist's most vital weapons is intelligence and the collection of information. I am sure that most people would agree with that statement. I therefore find it difficult to understand why the hon. Gentleman believes that amendment No. 5 should be pursued and that amendments Nos. 40 and 41 are "unworkable and unnecessary". If the terrorist sets such store by the collection of information—he needs that information to target his attacks on individuals or places—surely it must be appropriate for the House to address that issue. At present, the security forces are poorly equipped to profit from such opportunities as they may have to get hold of such information.

Although it is an offence to possess information which is likely to be of use to terrorists, there is no related power to examine material that may be found during the course of a lawful search to ascertain whether it contains such vital information for the terrorists. We went over this in Committee, and it is the basis of clause 22. The existing provisions in the PACE order, which require prior application for a warrant, are not adequate for this purpose.

As the law stands, it works greatly in the terrorists' favour. The Government regard the new powers in clause 22 as an appropriate way in which to enhance the security forces' ability to obtain evidential material, as well as offering the potential to deter and disrupt terrorist operations. Unlike the hon. Gentleman, we believe that these powers are justified and necessary. Nevertheless, I announced in Committee on 15 January that we had received representations from a number of bodies about the scope of the powers in clause 22. As the hon. Gentleman said, we had a thorough debate about the issue in Committee, when concerns were expressed by both sides about that clause.

The bodies that made representations to us included the Law Society for Northern Ireland, the Bar Council, the Standing Advisory Commission on Human Rights and the Committee on the Administration of Justice. I told the Committee that we would consult further on the issues, and we have done so.

After consultation with the interested parties, we have reflected on all the issues to establish whether we can provide greater protection for certain categories of document without sacrificing the essential security purpose of the power contained in the clause. Perhaps the hon. Gentleman and I will simply have to agree to differ on that fundamental issue.

I take some pleasure from being able to tell the House that we have been able to introduce some important safeguards. I am sorry that the hon. Member for Leicester, South does not share that pleasure. The proposed changes are in amendments Nos. 40 and 41.

First, amendment No. 40 provides that the power in clause 22 shall not be taken to authorise the examination, removal or retention of a document or record when there is reasonable cause for believing it to be an item subject to legal privilege. That was urged on us in Committee and it is an important limitation on the scope of the new power. The point was made to us by a number of bodies, including those to which I have just referred, that legal documents are given absolute protection under the ordinary law and should be similarly protected under clause 22. That was also urged on us in Committee. After careful reflection, we have concluded that it would be right to exclude such documents from the scope of clause 22.

11.45 pm

Secondly, the amendment places a duty on the police and armed forces to make a written record where a document or record is examined under clause 22, and to provide a copy of the record to any person whose documents have been examined. The record would also state the date and time when any document or record was removed and retained for examination, and it would identify the constable or member of the armed forces making it. The record would therefore constitute a receipt where documents are removed and retained for examination. The Standing Advisory Commission on Human Rights considered that point to be important.

Thirdly, the amendment would set limits on the length of time that any document or record may be removed and retained for examination by the police or armed forces. It is right and proper that documents should not be removed for an indefinite period. The amendment would require the police and armed forces to return retained documents to their owners before the expiry of 48 hours from the time when they were removed, unless they were seized for evidential purposes.

However, we have thought it right to provide the police with powers, exercisable only on the authority of an officer of the rank of chief inspector or above, to extend the period for another 48 hours in cases of particular difficulty, making a 96-hour maximum. Authorisation by a relatively senior police officer is an important safeguard against the possibility of documents being held for longer than is absolutely necessary.

Finally, the amendment prohibits the photographing or copying by the police and armed forces of any document or record which is examined. That should provide valuable reassurance that the confidentiality of documents will be respected.

Amendment No. 41 deals with a consequential change to clause 26. It simply provides that, where a document or record is found in the course of a search of a vehicle, vessel or aircraft, then the copy of the record of the examination shall be provided to the person in charge of the vehicle, vessel or aircraft, and will contain appropriate details.

The hon. Member for Leicester, South asked a practical question about what he saw as the difficulties of ascertaining whether a document was subject to legal privilege, and of someone having to read it in order to make that judgment. A police officer or member of the armed forces can examine documents only so far as is reasonably required to ascertain whether the document contains information likely to be useful to terrorists. The term "reasonably required" means that the matter is a subject for the courts.

The Government believe that the powers in clause 22 are necessary and justified. We listened to representations by members of the Committee, as we were urged to do, and to representations by others. We have responded to those representations, and we propose to provide important protection for legal documents and to build into the clause a series of procedural safeguards. I hope that, if amendment No. 5 is pressed to a vote, the House will feel able to reject it and to accept amendments Nos. 40 and 41.

Mr. Jim Marshall

First, I should like to comment on my use of the word "cynical". I do not usually reflect and then agree that I may have used an inappropriate word. On this occasion I have thought about the use of the word "cynical" and I agree that it was perhaps inappropriate to use such a word at this juncture. I put my use of it down to the lateness of the hour. I realise that I cannot get the Hansard reporter to change the word, but I should like the record to show that I have withdrawn the word "cynical" and would have liked to use the word "sceptical" instead.

Dr. Mawhinney

I am grateful to the hon. Gentleman for his gracious withdrawal.

Mr. Marshall

Before the Minister is too grateful, I suggest that he looks at the dictionary definitions of "cynical" and "sceptical"—but let my retraction stand.

There is not much difference between the Government and the Opposition on the use of documents by terrorist organisations and the need for security forces to have some powers to inspect such documents. As the Minister will appreciate, however, in Committee we placed great emphasis on legal documents. The Minister said then that under existing criminal law such documents have absolute privilege, but from what the Minister has now said, that will clearly not apply under this emergency legislation.

Again we come back to the old conundrum of who will judge reasonableness and at what stage in the process it will be ascertained. I presume that a judge or a court will decide, but that will be at a stage far removed from the soldier looking at the document and having to read either a short or long extract before he is able to decide whether it is subject to legal privilege.

That is why we are sceptical of Government amendment No. 40. The introduction of the concept of legal privilege is good and coincides with the Opposition's view, but in practice it will have little or no effect, and the average legal document which should be subject to privilege will be treated no better or worse than any other document.

That is the basis of our doubts about Government amendment No. 40. As I have already said, however, it is not our intention to oppose it. Nevertheless, despite the Minister's criticism of amendment No. 5, we shall seek to divide the House on that amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 22, Noes 126.

Division No. 90] [11.52 pm
Barnes, Harry (Derbyshire NE) Mahon, Mrs Alice
Canavan, Dennis Mallon, Seamus
Clelland, David Marshall, Jim (Leicester S)
Corbyn, Jeremy Meale, Alan
Cryer, Bob Nellist, Dave
Cunliffe, Lawrence Primarolo, Dawn
Dalyell, Tam Skinner, Dennis
Foster, Derek Strang, Gavin
Godman, Dr Norman A. Turner, Dennis
Haynes, Frank
Lewis, Terry Tellers for the Ayes:
McGrady, Eddie Mr.Thomas McAvoy and Mr. Don Dixon.
McNamara, Kevin
Alexander, Richard Hawkins, Christopher
Alison, Rt Hon Michael Hayes, Jerry
Amess, David Heathcoat-Amory, David
Amos, Alan Howarth, G. (Cannock & B'wd)
Arbuthnot, James Hughes, Robert G. (Harrow W)
Arnold, Jacques (Gravesham) Hunter, Andrew
Arnold, Sir Thomas Irvine, Michael
Ashby, David Janman, Tim
Baker, Nicholas (Dorset N) Jones, Gwilym (Cardiff N)
Beggs, Roy Kilfedder, James
Bennett, Nicholas (Pembroke) King, Roger (B'ham N'thfield)
Bevan, David Gilroy Kirkhope, Timothy
Bowden, Gerald (Dulwich) Kirkwood, Archy
Brandon-Bravo, Martin Knight, Greg (Derby North)
Brazier, Julian Knowles, Michael
Brooke, Rt Hon Peter Leigh, Edward (Gainsbor'gh)
Brown, Michael (Brigg & Cl't's) Lester, Jim (Broxtowe)
Campbell, Menzies (Fife NE) Lilley, Rt Hon Peter
Cash, William Lord, Michael
Chapman, Sydney Lyell, Rt Hon Sir Nicholas
Chope, Christopher McCrea, Rev William
Conway, Derek MacGregor, Rt Hon John
Cope, Rt Hon John Maclean, David
Davis, David (Boothferry) McLoughlin, Patrick
Day, Stephen Malins, Humfrey
Dykes, Hugh Mawhinney, Dr Brian
Fallon, Michael Maxwell-Hyslop, Robin
Favell, Tony Mayhew, Rt Hon Sir Patrick
Forsyth, Michael (Stirling) Miller, Sir Hal
Forsythe, Clifford (Antrim S) Mitchell, Andrew (Gedling)
Forth, Eric Mitchell, Sir David
Franks, Cecil Moate, Roger
Freeman, Roger Molyneaux, Rt Hon James
Gale, Roger Monro, Sir Hector
Goodhart, Sir Philip Morrison, Sir Charles
Goodlad, Alastair Mudd, David
Gorman, Mrs Teresa Needham, Richard
Greenway, John (Ryedale) Neubert, Sir Michael
Gregory, Conal Nicholson, David (Taunton)
Hannam, John Norris, Steve
Harris, David Paice, James
Paisley, Rev Ian Taylor, Matthew (Truro)
Patnick, Irvine Thompson, D. (Calder Valley)
Pawsey, James Thompson, Patrick (Norwich N)
Porter, Barry (Wirral S) Thurnham, Peter
Roberts, Sir Wyn (Conwy) Tracey, Richard
Robinson, Peter (Belfast E) Trimble, David
Ross, William (Londonderry E) Twinn, Dr Ian
Rowe, Andrew Viggers, Peter
Sackville, Hon Tom Walker, A. Cecil (Belfast N)
Sayeed, Jonathan Wallace, James
Shelton, Sir William Waller, Gary
Shepherd, Colin (Hereford) Ward, John
Smith, Tim (Beaconsfield) Wardle, Charles (Bexhill)
Smyth, Rev Martin (Belfast S) Watts, John
Speller, Tony Wells, Bowen
Spicer, Sir Jim (Dorset W) Wheeler, Sir John
Stanbrook, Ivor Widdecombe, Ann
Stanley, Rt Hon Sir John Wood, Timothy
Stern, Michael Yeo, Tim
Stevens, Lewis Young, Sir George (Acton)
Stewart, Andy (Sherwood)
Summerson, Hugo Tellers for the Noes:
Taylor, Ian (Esher) Mr. Tim Boswell and Mr. Neil Hamilton.
Taylor, John M (Solihull)

Question accordingly negatived.

Amendment made: No. 40, in page 15, line 40, at end insert— '(2A) This section shall not be taken to authorise the examination, removal or retention of a document or record by a person at a time when he has reasonable cause for believing it to be an item subject to legal privilege (within the meaning of the Police and Criminal Evidence (Northern Ireland) Order 1989). (2B) Where a document or record is examined under this section it shall not be photographed or copied. (2C) Where a document or record is examined under this section the person who examines it shall make a written record of the examination at once or, where it is not practicable to make one at once, as soon as is practicable. (2D) A record of an examination of a document or record which is made under this section shall specify—

  1. (a) a description of the document or record;
  2. (b) the object of the examination;
  3. (c) the address of the premises, or a description of the place, where the document or record was found;
  4. (d) where the document or record was found in the course of a search of a person, the name of that person;
  5. (e) where the document or record was found in the course of a search of any premises or other place, the name of any person appearing to the person making the record to be the occupier of the premises or other place or to have had custody or control of the document or record when it was found;
  6. (f) where the document or record was removed for examination from the place where it was found, the date and time when it was removed from that place; and
  7. (g) where the document or record was examined at the place where it was found, the date and time when it was examined.
(2E) Such a record shall identify the person by whom the examination was carried out—
  1. (a) in the case of a constable, by reference to his police number; and
  2. (b) in the case of a member of Her Majesty's forces, by reference to his service number, rank and regiment.
(2F) Where a record of an examination of a document or record is made under this section a copy of the record shall be supplied—
  1. (a) in a case where the document or record was found in the course of a search of a person, to that person; and
  2. (b) in a case where the document or record was found in the course of a search of any premises or other place, to any person appearing to the person making the 400 record to be the occupier of the premises or other place or to have had custody or control of the document or record when it was found.
(2G) Subject to subsection (2H) below, a document or record may not be retained by virtue of subsection (2) above for more than forty-eight hours. (2H) An officer of the Royal Ulster Constabulary not below the rank of chief inspector may authorise the retention of a document or record by a constable for a further period or periods; but no such authorisation shall permit the retention of a document or record beyond the end of the period of ninety-six hours from the time when it was removed for examination from the place where it was found.'.—[Mr. Brooke.]

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