HC Deb 22 May 2000 vol 350 cc727-42 '.—(1) Where a police constable has entered premises under authority of a warrant issued under section (Forcible entry warrant) above and has reasonable cause to believe that Additional Protocol information is secreted in or on the body of a person or persons on the premises he may conduct a non-intimate body search of the person or persons. (2) When a constable has formed the belief in subsection (1) he may order the person or persons to remove any outer coat and hat which may be then searched by a police constable of any sex. (3) A constable of the same sex as the person or persons being searched may conduct a search of the person or persons and their clothing but may not remove any further articles of clothing. (4) If a constable conducting the body search in subsection (3) above is of the opinion that Additional Protocol information can only be discovered by an intimate body search of the person or persons being searched then he shall inform the person or persons that he is of that opinion, and if the information is not produced voluntarily he may arrest the person or persons and take them to a police station for an intimate body search. (5) An intimate body search may only be conducted by a qualified medical practitioner at a police station. (6) Nothing in this section shall give any rights to authorised officers or others to conduct searches of persons or their clothing.'.—[Mr. Maclean.]

Brought up, and read the First time.

6.57 pm
Mr. David Maclean (Penrith and The Border)

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Mr. Michael J. Martin)

With this it will be convenient to discuss the following: New clause 3—Forcible entry warrant— '.—(1) When an authorised officer is refused entry to the premises stipulated in section 4 above, he may apply to a Justice of the Peace for a forcible entry warrant. (2) If a Justice of the Peace is satisfied on information given on oath that an authorised officer was refused entry on a duly presented warrant, he may issue a forcible entry warrant authorising a police constable to enter the premises (if necessary by force) at any reasonable hour within one month from the time of the issue of the warrant. (3) A constable who enters premises under authority of a warrant issued under this section shall take with him an authorised officer or officers and may take with him such other persons and equipment as appear to him to be necessary. (4) The powers of an authorised officer who enters premises under the authority of a warrant issued under this section include power—

  1. (a) to inspect anything found on the premises;
  2. (b) to require any information which is held in electronic form and is accessible from the premises to be produced in a form in which he can read and copy it; and
  3. (c) to copy, or to seize and remove, any document or other thing which he has reasonable cause to believe is something which contains Additional Protocol information.
(5) A constable who enters premises under the authority of a warrant issued by virtue of this section may—
  1. (a) give assistance to the authorised officer to prevent interference with him carrying out his duties in section 4 above; and
  2. (b) may assist in searching the premises.
 (6) A person who—
  1. (a) wilfully obstructs an authorised officer in the exercise of a power conferred by warrant or fails without reasonable excuse to comply with a legitimate request made by an authorised officer; or
  2. (b) obstructs, or fails without reasonable excuse to comply with the instructions of a police constable,
is guilty of an offence.'. Amendment No. 6, in clause 4, page 3, line 25, after "premises" insert ", person or equipment".

Amendment No. 7, in page 3, line 27, after "premises" insert— ', search the person or access the equipment'. Amendment No. 25, in page 3, line 27, leave out— ', if necessary by force,'. Amendment No. 8, in page 3, line 27, leave out "one month" and insert "fourteen days".

Amendment No. 26, in page 3, line 45, leave out— ', if necessary by force,'. Amendment No. 9, in page 3, line 45, leave out "at any reasonable hour".

Amendment No. 28, in clause 5, page 5, line 6, leave out "An Agency Inspector may," and insert— 'If a justice of the peace is satisfied, on information given on oath, that it is reasonable and necessary in accordance with the Additional Protocol for an Agency inspector to do so, he may issue a warrant authorising an Agency inspector to.'. Amendment No. 10, in page 5, line 17, at end insert—

'(2A) . The Agency's powers of access under subsection (2) shall be exercised only in the presence of a constable.'. Amendment No. 12, in page 5, line 27, leave out "may" and insert "must".

Amendment No. 30, in page 5, line 28, at end insert— '(4A) No Agency inspector shall, by virtue of this section, search the clothing or the body of a person or persons.'. Amendment No. 31, in page 5, line 29, leave out subsection (5) and insert— '(5) Where an Agency inspector is refused entry at any location falling within subsection (1) above he may apply to a justice of the peace for a forcible entry warrant authorising a police constable to enter the premises (if necessary by force) at any reasonable hour within one month from the time of the issue of the warrant.'. Amendment No. 29, in page 5, line 29, leave out subsection (5).

Amendment No. 27, in page 5, line 32, leave out from "section" to end of line 33.

Amendment No. 13, in page 5, line 38, leave out "conclusive".

Amendment No. 33, in page 5, line 47, at end insert— '(7A) For the purposes of subsection (7) above, it shall be a defence if the actions of any Agency inspector, in entering or searching premises or persons, infringe the European Convention of Human Rights.'.

Mr. Maclean

It may make more sense if I speak first to new clause 3 and then to new clause 1. I do not propose to say much about my amendments, as they are generally consequential upon my new clauses.

If I may say so, the two new clauses are quite reasonable attempts to improve the Bill: clearly you, Mr. Deputy Speaker, and Madam Speaker and your advisers concluded that they are in order and selected them for debate. They attempt to deal with an aspect of the Bill that caused great concern in the other place and some concern here on a brief Second Reading. No doubt, the matter might have caused concern in the Committee considering the Bill and, had I been fortunate enough to serve on it, I could have advanced my arguments then instead of waiting for Report.

I appreciate that, with the best will in the world, it is not possible for my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) or me to serve on all the Committees considering Bills in which we have an interest. Therefore, we must use Report stage as a legitimate means to advance arguments that, ideally, we could have advanced in Committee had we had the opportunity. However, we must make such arguments on the Floor of the House to, perhaps, a more receptive and less specialised audience.

To understand new clause 3, it should be set in the context of the Bill. The best starting point for that is not clause 1, but clause 4. Clauses 1, 2 and 3 may be relevant, but only tangentially so. I can get straight into the guts of my new clauses, without spending too much time, if I refer the House to clause 4.

Under clause 4, a justice of the peace can—if he is satisfied, on information given on oath, that the Secretary of State does not have all the information that he might want under clause 2, and that there is some document, thing or other information that a person has refused to give to the Secretary of State—issue a warrant to an authorised officer to allow him to enter the premises of the person who is believed to have that additional protocol information. The authorised officer can enter the premises, if necessary by force—mark those magic words—at any reasonable hour within one month from the time of the issue of the warrant and search them.

That is the first part of clause 4: a justice of the peace gives an authorised officer the power to enter premises, if necessary by force, at any reasonable hour, and to search them.

Subsection (2) again gives an authorised officer the power to enter premises, if necessary by force, again at any reasonable hour within one month, in order to search for a different class of information.

Other parts of clause 4 are necessary to understand my new clause 3. Subsection (5) goes on to state that the authorised officer, who has just got his warrant on oath from the justice of the peace, and has the power to enter premises, if necessary by force, can take with him any other persons and equipment as appear to him to be necessary.

The authorised officer can inspect anything found on the premises. He can require any information that is held in electronic form and is accessible from the premises to be produced in a form in which he can read and copy it. There will be an interesting interface with the Regulation of Investigatory Powers Bill in that regard, but I have not tabled amendments on the matter. In addition, the authorised officer can copy, seize and remove any document or other thing if he considers that it contains or is relevant to additional protocol information. Those are the powers of the authorised officer who enters premises.

Mr. Eric Forth (Bromley and Chislehurst)

I am grateful to my right hon. Friend. In his remarks, which of course will be curtailed by the viciousness of the guillotine, which will disallow proper debate, I hope that my right hon. Friend will comment, at least in passing, on my amendment No. 9, which proposes leaving out "at any reasonable hour", and on my amendment No. 10, in which, importantly, I seek to allow the agency's powers of access to be exercised only in the presence of a constable. I draw my right hon. Friend's attention to those amendments, which are important and germane, and which were selected, on the off chance that I may not have an opportunity to speak to them.

Mr. Maclean

My right hon. Friend is right to draw my attention to those important amendments. I have to make a decision. There are 32 new clauses and amendments in this group. If we decided to give ourselves just 15 minutes for Third Reading of this important Bill—the last Minister at the Dispatch Box, the Parliamentary Secretary, Privy Council Office, said that it was an important Bill—we would have less than one minute per amendment. We cannot go down that avenue of debate again, but that is the difficulty that I face: less than one minute per amendment to try to explain a complex subject.

Mr. Edward Leigh (Gainsborough)

I made the point at an early stage of the proceedings, but what my right hon. Friend said underlines it. We once fought a civil war because the Government, for the collection of ship money, were prepared to break into people's homes. We now have one minute per amendment to discuss an important matter. That is outrageous.

Mr. Deputy Speaker

Order. The hon. Gentleman need not concern himself about that. It is not the matter before us.

Mr. Maclean

There is a part of the clause which gives the authorised officer the right to break into people's homes, not for ship money but for additional protocol information. [Interruption.] Ship money—I said it very carefully.

The Bill, as drafted, gives the authorised officer the power to take with him such other persons, but we have no information from the Minister about who those persons may be. They may be assistants. I assume that some of them may be technologists, and some may be computer boffins to decode the encrypted messages on the computer. Others may be nuclear installation-type experts.

The authorised officer is also allowed to take such equipment as appears to him necessary. I could understand taking equipment if there was reason to believe that, in addition to nuclear information, there was some fissile material or radioactive material on the premises. Perhaps the equipment refers simply to cameras to photograph information, or additional computers to type up reports as the search proceeds. We do not have that information, and we need to be told.

The Bill rightly allows the authorised officer to inspect anything found on the premises, once he has got in there, and rightly he has the powers to order that stuff on the computer be turned into an accessible form. No doubt a penalty is available if someone refuses to decrypt the information.

The next subsection particularly concerns me, and that is where my new clause becomes relevant. I have tried to redraft subsection (6), bearing in mind that our authorised officer has gone to the court, to the JP, through all that palaver, which he does not find too a big a hassle, and he has his warrant on oath, giving him the power to search premises. He can take with him a constable, who may enter the premises under the authority of a warrant.

The constable may—I note the permissive word "may"— give such assistance as an authorised officer may request for the purpose of facilitating the exercise of any power under this section; furthermore, the constable may search or cause to be searched any person on the premises who the constable has reasonable cause to believe may have in his possession any document or other thing— that is, additional protocol information.

Subsection (7) goes on to state: No constable shall, by virtue of subsection (6)(b)— which I have just quoted— search a person of the opposite sex. Concern was expressed during the brief Second Reading debate which the Government graciously allowed us to hold in the House for a few hours one night, before ruthlessly closing down the Bill. There was a brief debate on the dangers and the problems that would arise when a constable had to conduct a body search, a strip search or an intimate search of a person of the opposite sex.

My new clause attempts to deal with that problem, give the Bill coherence and put it in the framework of existing PACE—Police and Criminal Evidence Act 1984—rules. It is a pity that the much more detailed new schedule tabled by my right hon. Friend the Member for Bromley and Chislehurst, on strip searching and intimate body searching, was not selected. He could no doubt expatiate at length on the technicalities, but that is not a route that we shall go down tonight.

Mr. John Bercow (Buckingham)

Will my right hon. Friend allow me?

Mr. Maclean

Yes, provided that the intervention is not on my right hon. Friend's intimate searching schedule.

Mr. Bercow

It is not. I applaud the purport of my right hon. Friend's new clause 1, but would not the reference in subsection (2) to a police constable of any sex be better replaced by a reference to a police constable of either sex?

Mr. Maclean

Ah! My hon. Friend may be working under the assumption that that is a grammatical or typographical error. In a new spirit which emanates from the Home Office and encompasses the police service, I am trying not to cause offence to any officer. These days we might have a male officer or a female officer, and it is just possible that there may be a police officer of any sex.

Mr. Bercow

Indeterminate sex.

Mr. Maclean

Indeed. I would not wish to be accused of being institutionally gender prejudiced, or whatever the derogatory term may be.

Dr. Julian Lewis (New Forest, East)

Androgynyphobic.

Mr. Maclean

That was a helpful intervention from a sedentary position—we shall have the benefit of reading it in Hansard with the correct spelling tomorrow.

I have explained the context of the amendments. Hon. Members and those who follow our debate carefully can now appreciate the purpose of new clauses 1 and 3 and my attempt to give greater coherence to the Bill. The new clauses also deal with the problem of the ability of officers of either, any or indeterminate sex—or even both, which I once came across in forensic medicine—to search people of a similar nature, or who are similarly equipped or attired.

In new clause 3, I work from the assumption that the Government believe that it is acceptable for an authorised officer to go through the palaver of applying to a justice of the peace to get a warrant to enter premises. One could have a debate—the other place held one—on clause 5, which grants foreign agency inspectors the right to march into premises without a warrant. However, we are debating not clause 5 but clause 4, which deals with a British official, the "authorised officer". He has to surmount the hurdle of obtaining a warrant from a JP to enter premises.

If the Government are willing to make an authorised officer jump over the hurdle of getting a warrant from a JP, I propose another small hurdle or sub-hurdle. If the authorised officer meets resistance, he should obtain a second warrant, which new clause 3 describes as the "forcible entry warrant". In most cases when an authorised officer enters the premises, he will not meet resistance. If he arrives at "any reasonable hour"—I hope we shall have time to debate the amendments that my right hon. Friend the Member for Bromley and Chislehurst tabled on that—"within one month", I assume that the people on the premises will open their doors and voluntarily allow the authorised person to enter.

Let us suppose that the authorised person meets resistance and that the people on the premises deny him entry. The Bill provides for the authorised officer to use force, if necessary. How can he do that? Can he do it himself? That is a grey area. We all assume that the constable will exercise the force. However, the constable may not be empowered; the officer may not have brought the constable with him. The Bill does not state that in all circumstances in which an authorised officer is given the right of entry, he has to take a police officer with him.

Perhaps the authorised officer will take a constable with him in unusual circumstances; perhaps he will take a bobby with him as a matter of course when he has obtained a warrant, to deal with possible resistance. However, the Bill does not provide for that. Even when a constable accompanies the authorised officer—if he is asked to do that—the constable has the discretion to refuse to use his powers if he does not wish to do so. The constable "may" assist, if necessary.

New clause 3 tries to clarify and change the position. When the authorised officer knocks on the door, and people refuse to answer, the new clause provides for him to return immediately to the court and obtain a forcible entry warrant. That empowers the constable to use the necessary force to gain entry. Is not that a better system? Is not that more in keeping with our British view of justice and forcible entry into premises? If a police constable—not an authorised officer from the Department of the Environment, Transport and the Regions or the Nuclear Safeguards Authority or an agency—knocks on the door, he can say, "It's not an inspector this time, chummy. It's me and the police service. Here's a warrant for forcible entry." If he is refused, the officer can then use force.

7.15 pm
Mr. Paul Keetch (Hereford)

I am trying to understand the right hon. Gentleman's point. How would he secure the premises between the time when the first hurdle had been attempted and the police officer took the second hurdle? How would the right hon. Gentleman ensure that any material that warranted the inspection was not removed from the premises in the meantime?

Mr. Maclean

The authorised officer would encounter that problem when he got his first warrant. He must get a warrant to enter the premises. I assume that people who have nuclear material or information are so clever and dangerous that, if they wished to thwart the entry of an authorised officer, they would do it from stage one. Perhaps the material will be encrypted, and the officers will not get their hands on it. The fact that the authorised officer has to fetch a police officer and return with a warrant a couple of hours later is not fatal to the successful raiding of the premises. The people who will try to frustrate the measure know that an authorised officer will try to raid their premises.

Mr. Keetch

Does the right hon. Gentleman presume that a company in, for example, Penrith or Hereford, will have been told about the initial warrant?

Mr. Maclean

I work on the assumption that even if the company has not been told, it will know about it. The Bill does not provide that when an authorised officer applies for a warrant on oath, the people whose premises he wishes to enter must be informed. I did not spot that in the measure. Such a provision may be built into the Bill. If not, the court will grant a warrant to the authorised officers without informing the people whose premises will be inspected. We are not considering petty crooks who will be taken by surprise by a sudden police raid and found with the incriminating stuff on them.

The premises that are to be raided will belong to those who are involved in the nuclear industry and have some information that is regarded as additional protocol information. If they do not expect a visit from the authorised officers when the Bill is passed, they will be poor at their jobs, or at least their criminality.

The Parliamentary Under-Secretary of State for Trade and Industry (Dr. Kim Howells)

The right hon. Gentleman makes an important point. He makes an analogy with what he describes as petty criminals. He knows that the powers we are considering are last resort measures. They would be used only in circumstances of, for example, suspicion that someone was selling nuclear material to a country such as Iraq. Does he believe that it is less urgent to obtain forcible entry when all other approaches have been refused than when, for example, the police carry out a drugs raid? The illicit sale of nuclear material is at least as important.

Mr. Maclean

Of course it is. However, why does not the Minister redraft the Bill to place the powers of forcible entry clearly in the hands of the constable and of the police service rather than the authorised officer? The Bill provides simply that the constable may assist if necessary. The Minister grants the powers to break into people's property to an authorised officer. Without straying from the path and considering clause 5 in detail, if the Minister is so proud of the provisions whereby an authorised officer applies to a justice of the peace, I hope that he will extend that to clause 5 and make the agency inspector approach a JP. Agency inspectors can enter any premises anywhere without a warrant from a JP.

Mr. Bercow

Forcible entry is important, but so too is the activity that might follow. Does my right hon. Friend seriously propose in new clause 3(4)(c) that individuals who are subject to a search should automatically be deprived permanently of their property, or does he concede that they should have the opportunity under new clause 3 to make representations about having the property returned to them?

Mr. Maclean

My hon. Friend makes another good point; I am dealing with new clause 3 subsection by subsection, but can jump ahead a couple to deal with it. I tried to replicate in new clause 3(4) the main provisions that the Government have included in clauses 4 and 5. I did not want to build in any other concepts which they might say were different from what they want to achieve and therefore unacceptable. The wording that I use in subsection (4)(a), (b) and (c) is identical, or almost identical, to that used by the Government.

I accept the difficulty that the officer could severely disadvantage a business were he wrongly to copy, or to seize and remove, any document or other thing which he has reasonable cause to believe is something which contains Additional Protocol information. Taking the whole computer to de-encrypt or decode it, to search the hard drive or to take it to bits, and taking other equipment such as machinery or documents could seriously affect the financial ability of the business and there would be no redress. We could explore such matters if we had more time.

Mr. Richard Page (South-West Hertfordshire)

I am slightly curious, as my right hon. Friend seems to have formed an alliance with the Minister. New clause 3 refers to gaining entry at reasonable hours. Given that the Minister said that illegal fissionable material might be held in a premises, surely breaking in only in authorised or legitimate hours is unduly generous. My right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) tackles that point sensibly in amendment No. 9. I should find it hard to support new clause 3 unless my right hon. Friend explains the fundamental weakness that it contains.

Mr. Maclean

My hon. Friend makes a reasonable point. If I had an opportunity, I would advise the House to vote for my new clause, as it would be amended by the amendment tabled by my right hon. Friend the Member for Bromley and Chislehurst. I am not the complete parliamentary draftsman's department, nor is my right hon. Friend; he was no doubt looking at the Bill's flaws and tabling amendments that he thought would improve it. I saw what I considered to be the major flaw in clauses 4 and 5, and new clauses 1 and 3 are attempts to redraft those clauses to introduce the concept of the forcible entry warrant and to clarify the rights of searching persons.

The easiest way to draft new clause 3 was to replicate some of the provisions that the Government have included in clause 4, even though I dislike some of them, and include the term "at any reasonable hour". I assumed that there would be a separate debate and that a change could be made in due course.

Mr. Forth

I hope that my right hon. Friend will not skip lightly over new clause 3(4)(b). My hon. Friend the Member for Buckingham (Mr. Bercow) seduced him into referring to subsection (4)(c). Will my right hon. Friend, who is a famous e-person, explain to me how anyone will know that information is held electronically, how it will be accessible from the premises and how it will be produced in a form that can be read and copied? I know nothing about e-things and care less, and I am at a loss to understand how the constable making a forcible entry will know what—

Mr. Deputy Speaker

Order. That intervention is too long.

Mr. Maclean

I have picked up the general thrust of my right hon. Friend's intervention. Again, he makes a valid point, with which we wrestled for a considerable time in Committee during proceedings on the Regulation of Investigatory Powers Bill. There is no doubt that if a person holds all that information in encrypted form, but refuses to produce the key, the Home Secretary can serve another warrant. Alternatively, inspectors and other officials may have the power to order that the encryption key be handed over, in which case, if the person complies, the authorised officer can use the encryption key, decode the computer and retrieve all the information that it contains, which may or may not be relevant. If the person refuses to hand over the encryption key, there is a maximum two-year sentence.

A difficulty may arise if the person with the computer says that he will hand over the information, but then issues the officers with what he claims to be all the information on his computer. However, other stuff may be hidden on a separate drive. I would not wish to stray, Mr. Deputy Speaker, but I have owned a laptop computer for two years. I became rather vexed two weeks ago as, although it is supposed to have a 1.2 gigabyte drive, it was chock-a-block. I could not figure out what was wrong until I suddenly discovered that it had two other drives—a C drive and a D drive—as well as an E drive for compact discs. The computer that I had used assiduously for two years and on which I had produced information in electronic form had two other drives.

Mr. Deputy Speaker

Order. I remind the right hon. Gentleman that the debate is time limited and other Members wish to speak. We cannot go into his computer problems.

Mr. Maclean

Like you, Mr. Deputy Speaker, I am vexed that the debate is time limited.

Mr. Deputy Speaker

Order. I am not vexed; I have no problem one way or the other.

Mr. Maclean

I, too, will try to relax and remain in order.

Mr. Bercow

rose—

Mr. Keetch

rose—

Mr. Maclean

I shall give way in a moment.

I did not intend to discuss my computer. However, I included subsection (4)(b) in new clause 3 because information can be hidden in electronic form, just as it was hidden on my ruddy computer. No doubt the constable and the authorised officers will have greater scientific and computer knowledge, so they will be able to extract all the relevant e-information.

Mr. Keetch

Now that we have discovered that, in the right hon. Gentleman's opinion, new clause 3 is worthy of debate only in relation to amendments tabled by the right hon. Member for Bromley and Chislehurst (Mr. Forth) and given that those amendments will not come before the House, does he still advise us to support it?

Mr. Maclean

I do not want to mislead the hon. Gentleman. I did not want to suggest that new clause 3 is worth debating or supporting only if amendment No. 9, which was tabled by right hon. Friend the Member for Bromley and Chislehurst, is accepted.

Mr. Forth

On a point of order, Mr. Deputy Speaker. The hon. Member for Hereford (Mr. Keetch) has made a helpful intervention. Will it be possible for the House to divide twice at the end of the debate—first, on new clause 3 and, secondly, on amendment No. 9—given that my right hon. Friend says that new clause 3 could be amended?

Mr. Deputy Speaker

That is possible, but it depends on when the Division takes place.

Mr. Maclean

That is helpful guidance and during the next few minutes I shall consider the best route to take.

New clause 3 has considerable merit as it stands. Admittedly, my hon. Friends might not like aspects of subsection (4), but nevertheless the House should support the concept of the forcible entry warrant.

Mr. Bercow

My right hon. Friend defends new clause 3 on the ground that, although imperfect, it represents a substantial improvement to the Bill. Is he satisfied that new clause 3 conforms to the European convention on human rights, which we could not possibly consider breaching given our attacks on the Government on that point?

Mr. Maclean

I do not have access to the Attorney-General or others who may wish to consult great European organs such as the European Court of Human Rights to determine whether the Bill satisfies the convention, but as the Government say that clause 4 will satisfy it, I am certain that new clause 3 has an even better chance of doing so because it includes an additional safeguard to defend the freedom of the individual from having his premises forcibly entered by an authorised officer.

7.30 pm

I have included another important concept in new clause 3. It would ensure that a police constable who enters a premises could do only what he considers to be absolutely lawful and essential to help the authorised officer. At present, the Bill provides for a constable to give such assistance as an authorised officer may request. What if the authorised officer requests illegal assistance? What if the authorised officer says to the police constable, "Arrest that person", or gives the police constable an order, and the constable concludes that he has no authority under United Kingdom law to do what he is being told to do? In that event, the authority would consist of the fact that an authorised officer had asked the constable to commit an illegal act.

Let me give another hypothetical example. Let us suppose that the authorised officer says, "Take that person's fingerprints", or tells the constable to make an immediate search or take a sample without reading the person concerned his rights. I assume that in such circumstances the constable would say, "I am sorry, but I will not do that. Under British law I cannot take a sample. I cannot give you that help; I cannot arrest that person, who has not committed a crime known to man." The constable's only defence—the only basis for his right to do that—would be the fact that he was obeying the orders of the authorised officer.

That would put the police constable in an invidious position. It would force him to say to an authorised officer, "I am sorry, but I am disobeying you. I will not do what you say, because in my opinion what you are asking me to do is contrary to the rules of the Police and Criminal Evidence Act 1984, contrary to Standing Orders and contrary to the law of the land. But for the fact that you have the right to order me to do it, I would not do it, because it is illegal."

My revised version of the wording in new clause 3 says: A constable who enters premises under authority of a warrant…may…give assistance to the authorised officer to prevent interference with him carrying out his duties…and…may assist in searching the premises. I am restricting the rights of the constable to merely giving assistance to prevent the authorised officer from being interfered with or obstructed.

Mr. Bercow

That is defensive.

Mr. Maclean

Yes, it is a defensive provision, and it is a much narrower provision than that allowing the constable to give such assistance as an authorised officer may request. That, I think, leaves the position far too wide open. It gives carte blanche.

New clause 1 states: Where a police constable has entered premises under authority of a warrant the new forcible entry warrant that I have just described— and has reasonable cause to believe that Additional Protocol information is secreted in or on the body of a person or persons on the premises he may conduct a non-intimate body search of the person or persons. That surely makes the position much clearer than the skimpy lines in the Bill telling us that a constable may search or cause to be searched any person on the premises who the constable has reasonable cause to believe may have…any document or other thing and that No constable shall…search a person of the opposite sex. My new clause places the onus on the constable to conclude that there is Additional Protocol information…in or on the body of the person or persons before conducting a non-intimate body search.

Subsection (2) of the new clause describes that search. It states: When a constable has formed the belief in subsection (1) the belief that I have just described— he may order the person or persons to remove any outer coat and hat which may be then searched by a police constable of any sex. The non-intimate body search would be restricted to ordering a person to remove outer clothing such as a hat or coat. That would be followed by the normal "pat-down" body search.

Mr. Forth

Notwithstanding my right hon. Friend's enormous experience of these matters, how does he expect an effective search to be made if the hat and coat are removed, but footwear is left intact? I should have thought that things could be hidden in shoes.

Mr. Maclean

That is perfectly possible, but I refer my right hon. Friend to subsection (4). As one who has, in a past life, conducted body searches at airports and other premises, I do have considerable experience of these matters, and I am happy to advise the Government, free and gratis. Subsection (4) states: If a constable conducting the body search in subsection (3) above is of the opinion that Additional Protocol information can only be discovered by an intimate body search of the person or persons being searched then he shall inform the person or persons that he is of that opinion. If the person concerned does not then produce the information voluntarily—from that person's body, from the footwear, or from any other article of clothing closer to the person's body than an outer coat or hat—the person can be arrested and taken to a police station for an intimate body search.

Mr. Forth

Ah!

Mr. Maclean

The intimate body search, which, under my new clause, would be conducted by a qualified medical practitioner, would encompass body orifices. The police do not normally consider the mouth to be intimate nowadays, but all other parts of the body could be searched by a qualified medical practitioner at a police station. In the course of that, clothing would be removed and could be searched, and anything secreted in boots or socks would also be discovered.

I consider it an important protection for members of the public for the right to conduct strip-down or intimate body searches to be given to authorised officers or police constables who would turn up and conduct searches at the scene. I think it right to clarify this area of the law. I invite the Minister to consider the—I must confess—much better proposals tabled by my right hon. Friend the Member for Bromley and Chislehurst, which set out in intimate detail, indeed excruciating detail, how to conduct proper body searches.

Dr. Howells

As an expert on laptops and CDs, the right hon. Gentleman will know that any such information would almost certainly be contained on floppy disks or CDs. Can he tell us in which orifice he thinks they would be secreted?

Mr. Maclean

I can certainly think of Labour Members who could hold a CD in their mouths without too much difficulty. [Laughter.] The Minister must admit that he set that one up.

Mr. Bercow

Some of us are less concerned about the intimacy of the body search than about the sex of the person undertaking it. I am thinking of subsection (5) of new clause 1. Would my right hon. Friend grant the person to be searched the right to specify that the medical practitioner should not be of the same sex as him or her?

Mr. Maclean

My hon. Friend makes a valid point. I pointed out that we should make allowance on the off chance for the existence of a police constable of "any sex", or indeterminate sex, or none. Similarly, I accept that there can be some pretty odd doctors about. That should produce a few more letters in the postbag.

Mr. Leigh

There has been some merriment at this point, but time is running out. I hope my right hon. Friend will make the serious point that, if the new clauses and amendments are not passed, for almost the first time in our history a civil servant will be able, without the express authority of the court, to break into someone's home. That is not a laughing matter; it is a very serious matter, and the new clauses and amendments are very important.

Mr. Maclean

My hon. Friend is right.

I dealt first with new clause 3, which contains important powers relating to the forcible entry warrant, because I thought it helpful to deal with it before coming to the searching of persons. That seemed a logical step. Inevitably, when the House starts discussing the searching of people and bodies, some see cause for merriment. There has been legitimate scope for that on every Committee on which I have served when Ministers have tabled clauses of this nature. Let us face it: it will be a poor day when the House takes itself too seriously about everything.

There may be legitimate scope for merriment in new clause 1, if we do not get it right. Nevertheless, the underlying thrust of the new clauses is an attempt to tighten parts of the Bill that I think can be tightened without the Government's being caused any difficulty.

If Madam Speaker had selected amendments to clause 5 to make an agency inspector get a warrant, the Government would rightly say, "Can't do that. It's totally contrary to what we've agreed. We've signed an international agreement. You're asking us to change something that we've signed up to as a Government. Can't be done." We are not asking the Government to do that. They are happy for an authorised officer to go to a justice of the peace to obtain a warrant under clause 4. They are happy that, in slightly grey and indeterminate circumstances, a police constable may accompany that officer. We are not sure what would happen if the police superintendent running the basic command unit refused and said, "I've more to do with my bobbies than to send them with your inspectors to raid premises looking for nuclear material." He may refuse, or he may decide that it is important and allocate officers, go himself or send an inspector. Joint police co-operation is a grey area and needs to be clarified.

In new clause 1, I have tried to clarify searching, which is also a grey area. The Government's clause on searching is so narrow as to be meaningless. Searching people of the opposite sex is a grey area. I think that I know where the Government are coming from. I know what powers they want to build into the legislation. I suggest that my new clause 1 is an improvement.

My right hon. Friend the Member for Bromley and Chislehurst will want to argue passionately for his amendment to miss out "any reasonable hour". I would not resist that amendment, and would happily vote for it.

It being four hours after the commencement of proceedings on the motion, MR. DEPUTY SPEAKER, pursuant to Order [this day], put forthwith the Question necessary for the disposal of proceedings to be concluded at that hour.

Motion made, and Question put, That the Bill be now read the Third time.—[Mr. Pope.]

The House divided: Ayes 310, Noes 2.

Division No. 202] [7.42 pm
AYES
Ainger, Nick Benn, Rt Hon Tony (Chesterfield)
Ainsworth, Robert (Cov'try NE) Bennett, Andrew F
Alexander, Douglas Bermingham, Gerald
Allen, Graham Berry, Roger
Anderson, Donald (Swansea E) Betts, Clive
Anderson, Janet (Rossendale) Blackman, Liz
Armstrong, Rt Hon Ms Hilary Blears, Ms Hazel
Ashdown, Rt Hon Paddy Blizzard, Bob
Ashton, Joe Blunkett, Rt Hon David
Atkins, Charlotte Bottomley, Peter (Worthing W)
Austin, John Bradley, Keith (Withington)
Banks, Tony Bradley, Peter (The Wrekin)
Barnes, Harry Bradshaw, Ben
Bayley, Hugh Breed, Colin
Beard, Nigel Brown, Russell (Dumfries)
Beckett, Rt Hon Mrs Margaret Browne, Desmond
Begg, Miss Anne Burden, Richard
Beith, Rt Hon A J Burgon, Colin
Bell, Martin (Tatton) Butler, Mrs Christine
Bell, Stuart (Middlesbrough) Byers, Rt Hon Stephen
Benn, Hilary (Leeds C) Caborn, Rt Hon Richard
Campbell, Mrs Anne (C'bridge) Griffiths, Win (Bridgend)
Campbell, Rt Hon Menzies (NE Fife) Grocott, Bruce
Grogan, John
Campbell, Ronnie (Blyth V) Hain, Peter
Campbell-Savours, Dale Hall, Mike (Weaver Vale)
Cann, Jamie Hall, Patrick (Bedford)
Caplin, Ivor Harman, Rt Hon Ms Harriet
Casale, Roger Harvey, Nick
Chapman, Ben (Wirral S) Heal, Mrs Sylvia
Clapham, Michael Healey, John
Clark, Rt Hon Dr David (S Shields) Heath, David (Somerton & Frome)
Clark, Dr Lynda (Edinburgh Pentlands) Henderson, Doug (Newcastle N)
Henderson, Ivan (Harwich)
Clark, Paul (Gillingham) Hepburn, Stephen
Clarke, Charles (Norwich S) Heppell, John
Clarke, Eric (Midlothian) Hesford, Stephen
Clarke, Tony (Northampton S) Hill, Keith
Clelland, David Hinchliffe, David
Clwyd, Ann Hoon, Rt Hon Geoffrey
Coaker, Vernon Hope, Phil
Coffey, Ms Ann Hopkins, Kelvin
Cohen, Harry Howarth, Alan (Newport E)
Coleman, Iain Howells, Dr Kim
Colman, Tony Hughes, Ms Beverley (Stretford)
Connarty, Michael Hughes, Kevin (Doncaster N)
Cook, Frank (Stockton N) Humble, Mrs Joan
Corbett, Robin Hurst, Alan
Corbyn, Jeremy Hutton, John
Cotter, Brian Iddon, Dr Brian
Cousins, Jim Illsley, Eric
Crausby, David Jackson, Ms Glenda (Hampstead)
Cryer, John (Hornhurch) Jackson, Helen (Hillsborough)
Cummings, John Jenkins, Brian
Cunningham, Jim (Cov'try S) Johnson, Alan (Hull W & Hessle)
Darvill, Keith Johnson, Miss Melanie (Welwyn Hatfield)
Davey, Valerie (Bristol W)
Davidson, Ian Jones, Rt Hon Barry (Alyn)
Davies, Rt Hon Denzil (Llanelli) Jones, Helen (Warrington N)
Dawson, Hilton Jones, Ms Jenny (Wolverh'ton SW)
Dean, Mrs Janet
Denham, John Jones, Jon Owen (Cardiff C)
Donohoe, Brian H Jones, Dr Lynne (Selly Oak)
Doran, Frank Jowell, Rt Hon Ms Tessa
Dowd, Jim Keeble, Ms Sally
Drew, David Keen, Alan (Feltham & Heston)
Dunwoody, Mrs Gwyneth Keen, Ann (Brentford & Isleworth)
Eagle, Maria (L'pool Garston) Keetch, Paul
Edwards, Huw Kennedy, Jane (Wavertree)
Efford, Clive Khabra, Piara S
Ellman, Mrs Louise Kidney, David
Ennis, Jeff Kilfoyle, Peter
Etherington, Bill King, Andy (Rugby & Kenilworth)
Fearn, Ronnie King, Ms Oona (Bethnal Green)
Field, Rt Hon Frank Kingham, Ms Tess
Fisher, Mark Ladyman, Dr Stephen
Fitzpatrick, Jim Lawrence, Mrs Jackie
Fitzsimons, Mrs Lorna Laxton, Bob
Flint, Caroline Lepper, David
Flynn, Paul Levitt, Tom
Follett, Barbara Lewis, Ivan (Bury S)
Foster, Rt Hon Derek Lewis, Terry (Worsley)
Foster, Michael J (Worcester) Liddell, Rt Hon Mrs Helen
Fyfe, Maria Linton, Martin
Galloway, George Lloyd, Tony (Manchester C)
George, Andrew (St Ives) Lock, David
Gerrard, Neil McAvoy, Thomas
Gidley, Sandra McCabe, Steve
Gilroy, Mrs Linda McCafferty, Ms Chris
Godman, Dr Norman A McDonagh, Siobhain
Godsiff, Roger Macdonald, Calum
Goggins, Paul McGuire, Mrs Anne
Golding, Mrs Llin McIsaac, Shona
Gordon, Mrs Eileen McKenna, Mrs Rosemary
Gorrie, Donald Mackinlay, Andrew
Griffiths, Jane (Reading E) McNulty, Tony
Griffiths, Nigel (Edinburgh S) MacShane, Denis
Mactaggart, Fiona Sedgemore, Brian
McWalter, Tony Shaw, Jonathan
Mahon, Mrs Alice Sheldon, Rt Hon Robert
Mallaber, Judy Short, Rt Hon Clare
Marsden, Gordon (Blackpool S) Singh, Marsha
Marsden, Paul (Shrewsbury) Skinner, Dennis
Marshall, David (Shettleston) Smith, Rt Hon Andrew (Oxford E)
Marshall, Jim (Leicester S) Smith, Angela (Basildon)
Marshall-Andrews, Robert Smith, Miss Geraldine (Morecambe & Lunesdale)
Martlew, Eric
Maxton, John Smith, Jacqui (Redditch)
Meale, Alan Smith, Llew (Blaenau Gwent)
Merron, Gillian Soley, Clive
Michie, Bill (Shef'ld Heeley) Starkey, Dr Phyllis
Mitchell, Austin Steinberg, Gerry
Moffatt, Laura Stevenson, George
Morgan, Alasdair (Galloway) Stewart, David (Inverness E)
Morgan, Ms Julie (Cardiff N) Stewart, Ian (Eccles)
Morley, Elliot Stinchcombe, Paul
Morris, Rt Hon Ms Estelle (B'ham Yardley) Stoate, Dr Howard
Strang, Rt Hon Dr Gavin
Morris, Rt Hon Sir John (Aberavon) Straw, Rt Hon Jack
Stringer, Graham
Mountford, Kali Stuart, Ms Gisela
Mudie, George Stunell, Andrew
Murphy, Denis (Wansbeck) Sutcliffe, Gerry
Norris, Dan Taylor, Rt Hon Mrs Ann (Dewsbury)
O'Brien, Bill (Normanton)
O'Brien, Mike (N Warks) Taylor, David (NW Leics)
O'Neill, Martin Temple-Morris, Peter
Organ, Mrs Diana Thomas, Gareth R (Harrow W)
Pearson, Ian Thomas, Simon (Ceredigion)
Pendry, Tom Timms, Stephen
Perham, Ms Linda Tipping, Paddy
Pickthall, Colin Todd, Mark
Pike, Peter L Trickett, Jon
Plaskitt, James Turner, Dennis (Wolverh'ton SE)
Pond, Chris Turner, Dr George (NW Norfolk)
Pope, Greg Turner, Neil (Wigan)
Pound, Stephen Twigg, Derek (Halton)
Prentice, Ms Bridget (Lewisham E) Tyler, Paul
Prentice, Gordon (Pendle) Tynan, Paul
Prescott, Rt Hon John Tynan, Bill
Primarolo, Dawn Vis, Dr Rudi
Prosser, Gwyn Walley, Ms Joan
Purchase, Ken Ward, Ms Claire
Quin, Rt Hon Ms Joyce Wareing, Robert N
Quinn, Lawrie Watts, David
Radice, Rt Hon Giles Webb, Steve
Rammell, Bill Whitehead, Dr Alan
Rapson, Syd Williams, Rt Hon Alan (Swansea W)
Raynsford, Nick
Reid, Rt Hon Dr John (Hamilton N) Williams, Alan W (E Carmarthen)
Rendel, David Willis, Phil
Roche, Mrs Barbara Wilson, Brian
Rooker, Rt Hon Jeff Winnick, David
Rooney, Terry Wood, Mike
Rowlands, Ted Woolas, Phil
Roy, Frank Worthington, Tony
Russell, Bob (Colchester) Wray, James
Salter, Martin Wright, Anthony D (Gt Yarmouth)
Sanders, Adrian Wyatt, Derek
Sarwar, Mohammad
Savidge, Malcolm Tellers for the Ayes:
Mr. David Jamieson and
Mr. Don Touhig.
NOES
Paterson, Owen Tellers for the Noes:
Wilkinson, John Mr. Eric Forth and
Mr. Edward Leigh.

Question accordingly agreed to.

Bill read the Third time, and passed, without amendment.