Police and Justice Bill

I will go carefully over my speaking note. I can see that the amendment has three possible consequences, which I shall go through because I want to test them back to the noble Baroness. She will then, no doubt, tell me whether I have addressed the issues and satisfied the intent of the amendment and the probing nature of her comments. First, if the amendment is intended to safeguard members of the public from the seizure of legally privileged documents belonging to them by immigration officers or officials of the Secretary of State exercising immigration and asylum enforcement functions, we argue that sufficient safeguards already exist in the current legislation. In this clause, enforcement functions exercised by immigration officers and certain other officials are defined as including the types of powers already exercised by those officers under the existing provisions of the immigration Acts. These include, for example, powers of arrest or powers of search and seizure. Thisis to enable the Independent Police Complaints Commission under future regulations to have oversight of these types of powers where they are exercised by immigration officers or certain other officials in the enforcement and removals context. Clause 45 does not create new powers for immigration officers or other immigration officials. Where powers for such officers and officials to search and retain documents exist in the current law, provision is already made in the legislation for the protection of legally privileged documents. For example, Section 28E(6) of the Immigration Act 1971 qualifies the power that an immigration officer has to enter and search premises following the arrest of a suspect to ensure that legally privileged items cannot be seized. Policy instructions to immigration officers also make it clear that legally privileged material should not be seized. If the amendment is concerned that the Independent Police Complaints Commission under future regulations will obtain legally privileged information belonging to a private individual, I can again reassure the noble Baroness. If the IPCC obtains such material in the course of one of its investigations, it would be obliged to return it unopened or unread unless the owner of the privilege had waived that privilege. IPCC investigators carrying out investigations have the same powers under the Police Reform Act 2002 as a constable in England and Wales. Therefore, the only warrants that they could seek are those under PACE or terrorism legislation. Legally privileged information will be outside the scope of these warrants, as provided for by Sections 8 and 10 of PACE. The position where the Immigration and Nationality Directorate is the holder of the legal privilege will be different, however. Section 17 of the Police Reform Act 2002 currently enables the IPCC to require the disclosure of information, including legally privileged information held by the police, by Her Majesty’s Revenue and Customs or by SOCA, under equivalent provisions, where disclosure is required for the carrying out of an IPCC function. The intention of Clause 45 is to ensure independent scrutiny of immigration officers and officials exercising police-like powers within the community under future regulations similar to the scrutiny that is in place for the police. To require different practices for the disclosure of legally privileged information where IND is the holder of the privilege would be anomalous. If the third interpretation is the intention of the amendment, the amendment could prevent the disclosure of legally privileged information between the IPCC and the Parliamentary Commissioner for Administration. We take the view that that would be undesirable. The IPCC and the PCA may wish to disclose legally privileged information under the gateway created by Clause 45(5) as part of their functions or for the purposes of a joint investigation under Clause 45(6). I trust that I have dealt to the noble Baroness’s satisfaction with all the potential interpretations that might arise from the amendment. I hope that I have reassured her that the concerns that were quite properly raised by the Law Society of Scotland—it is very good at this—have been addressed and that she will feel able to withdraw the amendment.