REVIEW OF PACE (Hansard, 14 February 1996)

§ Mr. Michael
I beg to move, That the clause be read a Second time.
New clause 6 is important: it concerns the application of the Police and Criminal Evidence Act 1984 in the new circumstances created by the Bill. It suggests that, six months after the Act has come into force, the Home Secretary should consult the Director-General of the Security Service and the person designated under the Security Service Act 1989—the chief constable, who is deemed to be, as it were, the guardian at the gate, along with the police and other law enforcement agencies. That is a new development following the Committee stage. After that consultation, attention should be paid to whether any amendments to PACE are needed to cope with the new operations of the Security Service.
It may be found at that stage that there is no need to change PACE, and that its operation should apply to the activities of the Security Service in support of the police and other law enforcement agencies. It would, of course, be ideal if the Act that is designed to regulate such matters were found to be appropriate. There has, however, been considerable concern that the Security Service might operate outside the requirements of the law in relation to criminal evidence in supporting the police and other law enforcement agencies, crossing boundaries in a way that the House would consider inappropriate. The new clause is intended to ensure that the issue is aired, and that, under PACE, the correct rules for dealing with the collection of evidence and presenting it to a court is observed by the police when supported by the Security Service, as they are by the police alone.
In recent years, serious attention has been paid to the way in which PACE operates. None of us want the powers of the police and other law enforcement agencies to be misused, or abused. I hope that the Minister, when he responds to what I expect to be a short debate—this is a narrow issue, although it is important—will agree that the existing standards should be observed, that they should not be changed as a result of the alterations proposed in the Bill and that the public should be able to have confidence in the rules according to which evidence is collected and put before a court.

§ Mr. Harry Cohen (Leyton)
I congratulate my hon. Friend the Member for Cardiff, South and Penarth (Mr. Michael) on raising the issue of PACE. Under sections 10 to 14, certain records are either excluded from seizure or subject to restriction. Under section 10, for instance, items subject to legal privilege cannot be seized unless they are held with the intention of furthering a criminal purpose". Sections 11 to 14 restrict the seizure of health and journalistic records by requiring a warrant to be signed by a circuit judge, and—prior to agreement to the issuing of such a warrant—the application of certain rigid tests relating to, for example, the importance of the material to the investigation of a serious arrestable offence.
Those requirements relate to three fundamental freedoms, which should not be subject to undue interference by the security services. Those freedoms are the right to seek legal advice from a lawyer in confidence, the support of a free press by means of the protection of journalistic material and the expectation that one's medical condition will remain confidential. When 1047 Parliament discussed the issue back in 1984, it clearly thought that it would be intolerable for someone to discuss his defence with a lawyer, only for the police to barge in and seize the details of the discussion. Similarly, Parliament took the view that procedures relating to the seizure of health and journalistic records should be subject to close scrutiny by a judge.
Under the Bill, that could be bypassed by the security services; it could also be bypassed by the police, who could get the security services to do the job for them. As the Bill stands, a warrant relating to support of the prevention and detection of serious crime could be signed by the Home Secretary; such a warrant would then authorise interference with property and computers in a lawyer's office or a doctor's surgery, or on a newspaper editor's desk.

§ Mr. David Ashby (North-West Leicestershire)
I am sorry that I have only just entered the Chamber: I have been involved with the Home Affairs Select Committee.
Is the hon. Gentleman aware that Customs and Excise, who have exactly the same powers, are not subject to PACE, but have become so on the basis of a code? Section 78 of PACE gives the courts wide powers to exclude evidence, which they do if it does not conform with PACE. In practice, no problems will be created.

§ Mr. Cohen
I think that there is a potential for problems, but I sympathise with what the hon. Gentleman said about Customs and Excise. I think that the PACE rules governing evidence should apply to them as well as to the police.
Under the Bill, there is a danger that two routes will be taken. Either the police will meet the tests of PACE, or, if they can get the security services to do the job for them, they will bypass those standards. It is possible that the police and the security services will exercise undue powers on lawyers, doctors and journalists, interfering with their professional and confidential relationships with clients—or sources, in the case of journalists.
I am glad that my hon. Friend the Member for Cardiff, South and Penarth has raised the issue. It deserves proper answers from the Minister of State.

§ Mr. Maclean
Having heard what the hon. Member for Cardiff, South and Penarth (Mr. Michael) had to say, I realise that there is no difference of substance or principle between us.
Relevant aspects of the Police and Criminal Evidence Act are already kept under regular review, and it is entirely proper for the legislation to be kept up to date to ensure that it remains relevant and workable without our rushing in to make hasty and ill-considered changes. That takes place without the impetus of a compulsion to review the legislation every six months or two years. Only recently, for example, the codes of practice governing a variety of police procedures have been updated.
Let us briefly consider what is relevant. PACE regulates police powers. Members of the Security Service will not have police powers; their role will be to support and assist the police, not to replace them. We should not adapt the requirements of PACE wholesale to suit the convenience of the Security Service. PACE also covers 1048 criminal evidence, and that will clearly be relevant to the Security Service. Indeed, it is already relevant: the Security Service already has experience of working with other law enforcement agencies or prosecutors in respect of its other functions. That has resulted in some important and successful prosecutions in a counter-terrorism context.
Aspects of PACE will be relevant to the Security Service's new function. Members of the service are certainly subject to the law, and I assure the House that the position will be kept under review. I am sure that the Directors-General of the Security Service and the National Criminal Intelligence Service will want to ensure that the Security Service's support for the law enforcement agencies is effective; that was certainly the Government's wish and the wish of the Committee, and I think that it was the wish of hon. Members on both sides of the House. Equally, we must ensure that there are effective systems of accountability.
I can assure the House that, if any obstacles or anomalies emerge—whether within days, months or years of the changes taking place—that threaten operational effectiveness or accountability, we shall consider what needs to be done. This will be an on-going process and we shall keep it under constant review. It is not one that occurs after an arbitrary period has elapsed. For that reason, I do not accept the hon. Gentleman's amendment, but I can see no real difference of principle between us.

§ Mr. Michael
With the leave of the House, the Minister made an important statement and made explicit something that we had understood which came out of our discussions in Committee—namely, that, in its activities, the Security Service will not have or use the powers of the police. I am pleased that that has been placed on the record, and it is quite clearly the intention of the House.
I am pleased that the Minister gave an undertaking to keep under review the matter of the Director General of the Security Service and the designated chief police officer. If in the fullness of time the public express concern about their joint activities, I am sure that the Home Affairs Select Committee will consider whether it needs to consider the matter and undertake its responsibilities on behalf of the House.
For the time being, in the light of the Minister's assurance that the matter will be kept under review in the way the House wishes, I beg to ask leave to withdraw the motion.