New Clause.—(SECRECY.) (Hansard, 25 May 1949)

§ The Attorney-General
I beg to move, "That the Clause be read a Second time."
This concerns secrecy as between the assisted litigant and those who may obtain information about his litigation. This was a matter which was discussed in Committee, and to which we have since given a good deal of consideration, because it presented difficulties of a professional kind, but at the same time concerned matters which were of considerable public importance. The new Clause imposes an obligation of secrecy on the Law Society, the members of the committee appointed in connection with the administration of the legal aid scheme, and upon any employees of the Law Society and of the committee who may, in the course of their employment, acquire information about a litigant's affairs; and it provides a penalty of £100 for a breach of that duty of secrecy. The new Clause does not in any way interfere with the privileged relationship which, under the ordinary rules of the legal pro- 1339 fession will exist between an assisted litigant and his solicitor or his counsel. If they commit any breach of the privilege in regard to these matters they will be dealt with by the ordinary professional bodies, the Inns of Court or the Disciplinary Committee of the Law Society, as for a grave breach of the relationship existing between them and their client.
However, the members of the committee of the Law Society, and the employees who are working in the administration of the scheme, stand in a somewhat different position. They do not occupy the position of solicitor or counsel to the assisted litigant, and breaches of confidence by them would consequently not be within the ordinary rules of professional etiquette as administered by either branch of the profession. On the other hand, of course, a breach of confidence by them—by members of the committee, who will get to know something about the affairs of the assisted litigant, or by employees—would be a matter of a most serious kind affecting the interest of the public. We felt, therefore, that this was a matter which ought to be in the hands of the court.
The present new Clause does not, however, very much modify the proposal which we previously considered upstairs. The fiat of the Attorney-General will be required before any prosecution can take place, and the penalty will no longer be one in which there is an alternative of imprisonment, but a fine of a maximum of £100. I commend the new Clause to the House, pointing out, as I have done, that it has no application at all to the ordinary relationship between the assisted litigant and his solicitor or his counsel, as the case may be.

§ Mr. Manningham-Buller
This new Clause is, in my opinion, very much better than the Clause or the Amendment which the right hon. and learned Gentleman sought to introduce into the Bill in Committee. As he has reminded us, the Bill made one liable to a fine of £100 or three months' imprisonment or both for the divulging of information. That Amendment was also open to the construction that it applied to a solicitor and counsel acting in a professional capacity, so different obligations would 1340 fall upon the solicitor and counsel according to whether they were acting for an ordinary client or a client under the Legal Aid scheme. Were they acting for an ordinary client, they would not be liable to criminal prosecution for divulging any information they obtained and would be dealt with by members of their own profession.
This new Clause makes it clear that, so far as lawyers are acting in a professional relationship, they shall not be liable to a criminal prosecution. I think that is a very desirable alteration. I agree with the right hon. and learned Gentleman that it is necessary to make some provision for those who are bound to become acquainted with the assisted litigant's affairs and do not stand in the usual professional relationship to that person. I myself am still inclined to the view that all that was necessary was to extend the area of professional privilege, bearing in mind that the local committees and area committees will be staffed by lawyers, and I am somewhat inclined to the view that it is not necessary to create a criminal offence at all.
The right hon. and learned Gentleman has gone so far to meet us—and this Clause does contain the safeguard, and I think that it is a real safeguard—that there can be no prosecution without his consent. That, I think, makes it acceptable to us, and we on this side of the House do not wish to do anything to deter people from making use of this scheme. If it is thought that the possibility of a criminal prosecution will give them greater confidence that what they say will not be improperly disclosed, I agree that there is something to be said for making this a criminal offence, subject to the safeguards to which I have referred, although I myself doubt whether this Clause will ever be used, and, indeed, I hope that it will not be.

§ Mr. Turner-Samuels
There are two points to which I would draw attention. The first is on the question of professional privilege, and on that I heartedly agree with what the hon. and learned Member for Daventry (Mr. Manningham-Buller) has said, confirmed, of course, by what the Attorney-General has stated. Apparently, the desire is also to prevent disclosure, and that is an entirely different matter from a question of professional 1341 privilege. It is perfectly clear that where a party himself has supplied the information there is to be no disclosure except with his consent. What I would like the Attorney-General to make clear is this. Suppose it is not the party to the litigation who is making the disclosure of information, supposing it is not a litigant who is supplying the material; supposing his clerk or some agent, it may be his doctor, accountant, or even his wife, has given the information for the purpose of obtaining legal aid, and given it with his consent, is it to be said that this person may later disclose that information notwithstanding that the litigant himself does not give his consent?
I should like the Attorney-General to look at that point. It may be that I am not putting the correct construction upon it. What is the position supposing the information has been disclosed by his agent, clerk, the doctor attending him, his wife or his accountant? The information is obviously something which has been given through the litigant himself, but it may in fact have been given not with his consent and with his instructions by his clerk or by some other agent. Is the clerk to be allowed to disclose without the consent of his principal, or is the agent or the wife to be able to disclose in a similar way without consent?

§ The Attorney-General
The wording of the Clause is that in such a case the information would have been given on behalf of the litigant by his agent, and the litigant's consent would be required.