HC Deb 25 June 1964 vol 697 cc776-84
The Attorney-General (Sir John Hobson)

I beg to move, in page 13, line 14, after "persons" to insert: carrying on an undertaking or employed in connection with an undertaking". May I suggest that we consider at the same time the next Amendment also in the name of my hon. Friend the Financial Secretary to the Treasury.

Mr. Deputy-Speaker

Yes, if that be the wish of the House.

The Attorney-General

I think that it might be convenient also to discuss the Amendment in the names of my hon. Friend the Member for Crosby (Mr. Graham Page) and other hon. Members, in page 13, line 27, at the end to insert: (3) Nothing in the foregoing sub-paragraphs shall be taken to require any person who has acted or is acting as solicitor for a client to disclose any privileged communications made to him in that capacity or, as regards any other documents held by him on behalf of a client, to comply with the provisions of such sub-paragraphs except with the consent of that client. All three are to some extent linked.

Mr. Deputy-Speaker

Does the hon. Member for Crosby agree?

Mr. Graham Page (Crosby)

Yes, Mr. Deputy-Speaker.

Mr. Houghton

Is it altogether convenient to pool all these three Amendments together, Mr. Deputy-Speaker? It seems to me that the two Government Amendments are a little more than drafting Amendments, and there may be differences of opinion about the Amendment in the name of the hon. Member for Crosby.

Mr. Deputy-Speaker

It is a matter for the House. If it is not agreeable, we shall take them separately.

The Attorney-General

I am entirely in the hands of the House.

Mr. Deputy-Speaker

May we know where we are? Do I take it that it is the wish of the House to take the two Government Amendments together, and then consider the one in the name of the hon. Member for Crosby separately?

The Attorney-General

I am much obliged, Mr. Deputy-Speaker. I am entirely in the hands of the House and I wish only to do what is convenient. The Amendments do overlap somewhat, and I hope that, to some extent, what is proposed in the two Government Amendments will solve some of the problems raised by the Amendment in the name of my hon. Friend.

These Amendments are designed to meet the point raised in the Amendment of my hon. Friend the Member for Crosby. The Schedule deals with the powers of requiring the production of documents and, in certain circumstances, of entering and searching premises in support of certain of the provisions of the Bill. They are enforcement provisions and they are related to the powers of hire-purchase control under Clause 1, the control of export of strategic goods under Clause 3, the control of welfare foods under Clause 4, medical supplies under Clause 5, and price control of liquid milk under Clause 6.

The Amendment of my hon. Friend the Member for Crosby draws attention to the fact that, as the Schedule now stands, it does to some extent widen the powers and that they could be used to require the production of privileged and confidential communications passing between a solicitor and his client and other documents held by the solicitor on behalf of his client.

It is true that communications made to, and information obtained by, a solicitor in the conduct of professional business for his client have for long been recognised as privileged from disclosure to a third party, and this is reflected in the Companies Act, 1948, both in Section 175 and Section 446. It was certainly no part of the Government's intention in this Schedule to undermine that principle.

What we are doing is putting into permanent statutory form what has been in temporary statutory form and was previously contained in the Defence Regulations. These powers were originally in Defence Regulation 55AA and were then put into temporary form by the Emergency Laws (Repeal) Act, 1959.

The point raised by my hon. Friend's Amendment did not arise under the Defence Regulations because the obligation to produce books was imposed only on a person carrying on an undertaking to which the direction or order related, and the power of inspection under warrant was also limited to the inspection of undertakings.

The Schedule as drawn leaves out that limitation of requiring the placing of the obligation only on persons concerned with undertakings and that limitation of inspection to undertakings. In this respect it slightly widens the powers which existed under the Defence Regulations.

It was never the intention of the Government to widen the powers that previously existed, either under the Defence Regulations or under the 1959 Act, and it has, therefore, been thought desirable to go back to the limitations which previously had existed. This does not deal directly with the problem of solicitors but it will obviate the problem because it returns to the situation under which there is only an obligation on a person carrying on an undertaking or employed in some undertaking to produce any books relating to the undertaking.

There are difficulties in dealing separately with a particular profession. If one were to have a separate Clause dealing only with the solicitors' profession, there would be the difficulty that other professions, like banking, might have claimed a similar privilege.

Paragraph 4 of the Schedule declares that the Schedule is contained in Part One of the Bill and, therefore, it attracts the definition of an undertaking which is in Part One of the Bill in Clause 15. That definition of an undertaking is: … any public utility undertaking or any undertaking by way of any trade or business; By well known definition, solicitors do not carry on a trade or business but carry on a profession. They are not considered to be employed in connection with an undertaking because they are engaged in a contract for services and not employed by way of service. It is for those reasons that I recommend to the House, at any rate on their own merits, the Amendments which I suggest, if only on the ground that they limit the powers being given to the Executive to require the production of documents, the inspection of premises and the searching of premises, and limit them in the way that they were previously limited under the Defence Regulations.

Mr. Mitchison

With much of what the right hon. and learned Gentleman the Attorney-General has said I agree, so far as it is concerned with a person carrying on an undertaking. We have to consider carefully what we are doing. What is happening is that we are translating Defence of the Realm Regulations into permanent legislation, and I confess that I am worried by the remaining words.

Here is a requirement imposed not only on the person carrying on an undertaking, and those are limiting words, as the right hon. and learned Gentleman said, but also on a person employed in connection with an undertaking. I should have thought that in cases of this sort the requirement fell not on the employee, but on the actual person carrying on the undertaking. For instance, if we are concerned with a company and the secretary of a company, the actual requirement ought to fall on the company and not on the company's employee. Of course, the same would be the position if the person carrying it on were an individual. I find that this is confirmed by paragraph (3), by which, if a requirement is not complied with, the person on whom the requirement was so imposed is guilty of an offence and liable to punishment

The effect of this provision seems to be that if the requirement is imposed not only on the person who really is responsible, that is, the person carrying on the undertaking, but also on a person employed in connection with an undertaking, then the officer of a competent authority may require that employee to produce any documents which the officer might reasonably require for certain purposes. If the employee fails to comply, then, notwithstanding that the person really responsible is somebody else, it is the employee who may be guilty of an offence and probably punished for it. I cannot believe that that can be right.

I wonder whether the Government have considered the position as between these two people. Surely the right thing to do in these cases is to put the responsibility to produce the documents on the person who is carrying on the undertaking, on the person who probably has the documents—I recognise at once that that person may be a company or an individual—and not in these broad and general terms on some employee of the company who may be required to produce documents by an officer of a competent authority. I hope that the Government will let us know their conclusions on this point. One always assumes that the Government have considered every rational view of one of their Amendments and, when it is the right hon. and learned Gentleman, that he has considered every possible aspect of the law and will fulfil his duty of advising the House on it. In these circumstances, what is the object of putting in the passage about the employee and is it not too wide?

11.0 p.m.

Mr. Graham Page (Crosby)

I am concerned only that the words about which the hon. and learned Member for Kettering (Mr. Mitchison) is complaining do not include a person who is engaged on services for the person carrying on the undertaking. If it had been intended to include the solicitor, the accountant and the other professional men engaged on this service, then I imagine the word "engaged" would be used and not the word "employed." Therefore, I am assuming that my right hon. and learned Friend's Amendment does in fact cover the ground which I had hoped to cover in a later Amendment, and more than cover it. I am very grateful to my right hon. and learned Friend, for making the speech which I would have made on the later Amendment in my own name, because as the Schedule stands without his Amendment I think it would have been an attack on the confidential nature of communications between solicitor and client.

It is, of course, well recognised that, except in very abnormal circumstances, the law should not pry into the confidential conversations between solicitor and client, nor require the solicitor to produce documents which he holds on behalf of his client without that client's consent. Communications made to or informal ion obtained by a solicitor in the course of the conduct of his professional business for his client are, as the courts have said many times, privileged from disclosure to third parties. This is surely of supreme importance in the proper administration of justice, and it exists not for the protection of the solicitor but for the protection of the public so that a man can confide in his professional adviser fully and without reservation. This has been recognised not only by the courts but by Statute law and by this House in many previous enactments. Because this Amendment of my right hon. and learned Friend seems to cover that rather narrow point which appears in the later Amendment, I would give it my wholehearted support.

The Attorney-General

If I may, with permission, answer the points that have been raised. I am grateful to my hon. Friend the Member for Crosby (Mr. Page) for what he has said. It certainly is the fact that it is the intention of the Clause as drafted to exclude those who are engaged for services, and only to cover those who are employed by way of service. If I may deal with the point raised by the hon. and learned Gentleman the Member for Kettering (Mr. Mitchison).

Mr. Mitchison

Would the right hon. and learned Gentleman be kind enough to answer one point on what he has already said? If the solicitor's client is liable to produce the documents required, is there any reason why these documents should be withheld from production because they are in the hands of someone employed by him?

The Attorney-General

It is, of course, never the solicitor's privilege. It is always the client's privilege. I think that what the solicitors are anxious about and the Law Society is anxious about is the position of solicitors themselves, and any search of the premises of solicitors, and whether or not they ought to be made to produce documents which are in fact their clients' documents.

I do not understand the point raised by my hon. Friend the Member for Crosby, to be dealing with the question of clients' documents which may or may not be privileged. If it is, we can consider it on the next Amendment.

As to the first point of the hon. and learned Gentleman the Member for Kettering, which was why an individual is named, particularly a person who is employed by what may be a company or may not be a company, and why he should be at the risk of committing a criminal offence. This has been considered, but the ordinary way in which the production of documents is always ordered by the courts is by making a specific order against the individual. If there is to be discovery through the machinery of the court, the order is always against a particular official of the company. Yet this leaves it wide enough, as the orders for production of documents are seldom made against a company but almost always made against an individual.

There is an additional reason why we should be able to select a person who is employed, and that is that it may not always be clear exactly who is the person actually carrying on the undertaking. There are many instances in Revenue law and in other circumstances where there is a great deal of doubt as to the person who is actually carrying on the undertaking. Therefore, if we can choose an individual, whether or not it is plain that he himself is carrying on the undertaking, provided that he is employed by the person who is carrying on the undertaking, we can get at somebody who has the documents under his control, and who can be made liable to produce them.

Mr. Mitchison

I hope mat the Attorney-General will consider this point a little further. A person who fails to produce documents is liable to penalties, including a substantial fine. Is it intended that the order shall always be made against an individual and not against a company? I should have thought that there would be many cases in which there would be orders against a company, in which case is it not right that the order should be made against the company and not against an employee? Should not there be a provision to that effect, instead of leaving an employee liable to a fine which really arises out of his employment?

The Attorney-General

I shall consider that point, and I am grateful to the hon. and learned Member for raising it. I should have thought that it was right to make an order for the production of documents against an individual. If any question of a fine arises, the exact position of the company behind him can be considered.

Mr. Honghton

I cannot resist making a comment on the Attorney-General's introductory remarks. This Government will be driven out of office this autumn not so much for their wickedness as for their incompetence.

The Attorney-General has confessed to the House that in Schedule 1 the Government inadvertently widened the powers which they were taking. It was only when an Amendment was put down by the hon. Member for Crosby (Mr. Graham Page) that the Government woke up to what they had done, and they are now asking the House to put the matter right. Taking that alongside the blemish in the Bill in Clause 17, I can only conclude, from the inadequate explanation given in defence of it, that this is a manifestation, politically speaking, of original sin.

Amendment agreed to.

Further Amendment made: In page 13, line 15 after "documents", insert "relating to the undertaking".—[Mr. Green.]

Mr. Graham Page

Having regard to the acceptance of the previous Amendments, I do not wish to move the Amendment in page 13, line 27, at end insert: (3) Nothing in the foregoing sub-paragraphs shall be taken to require any person who has acted or is acting as solicitor for a client to disclose any privileged communications made to him in that capacity or, as regards any other documents held by him on behalf of a client, to comply with the provisions of such sub-paragraphs except with the consent of that client.