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Counter-Terrorism Bill

I touched on this in my previous answer. I must make it clear that legal privileges are rightly there to protect lawyer/client confidentiality. That is why this clause provides that a document may not be removed or retained if it is subject to legal privilege. If a document is clearly subject to legal privilege, it cannot be taken away or retained. The only exception is when it is not reasonably practical for the legally privileged item to be separated from the rest of the document. That can happen when there is a mixture of stuff, some legally privileged, and some stapled on. It could be something which includes correspondence with a lawyer but contains lots of other information. This is very infrequent but we do not believe it should stop the police from examining the remainder of that document, which is not subject to legal privilege. Where that is the case, the whole document may be retained but the legally privileged information must not be examined except to see that it is legal. If it is, it cannot be looked at, unlike the rest of the document. This is a standard provision. There is a similar provision making an exception for the return of privileged items where they are contained in other property in relation to all statutory powers of seizure exercised by a constable. That is set out in Section 54 of the Criminal Justice and Police Act 2001, on which Clause 3 is based. This is not an erosion of protections afforded to legally privileged material; rather, it is a sensible provision in response to a practical difficulty that we know can occur. Clause 3(5) provides that where a removed document containing legally privileged material is retained because it is not reasonably practical to separate the parts, the legally privileged sections cannot be examined except where it is necessary to facilitate the examination of the rest of the document to see what is not legally privileged. This does not change the protection of legally privileged material and it is not in the interest of the police to examine such material beyond what is allowed by the provision. Any information taken or derived from a legally privileged document is likely to be ruled inadmissible by the trial court and could allow the defence to raise abuse-of-process arguments about the safety of the whole trial. The police are fully aware of this. Inappropriate examination of legally privileged documents by the police does not happen at present in relation to seized documents, and I see no reason to suppose that it will happen in relation to the exercise of the power. It is clear that we must strike the right balance—I understand why the noble Baroness has raised the point—between the importance of thorough searches in terrorism cases and the proper protection of legally privileged documents. The clause strikes that balance and is not an erosion of protection.