Clause 5.—(CESSER OF RIGHT CONFFERED BY ORDER UNDER SECTION 1.) (Hansard, 25 October 1967)

§ Mr. Graham Page
A great deal of consideration was given to this Clause by the Joint Select Committee. Some of the subsections are introduced under No. 3 recommendation of the Law Commission. The reason for the recommendation was that the Law Commission came to the conclusion that if a person failed or refused to answer questions by an inspector there was no penalty for the failure or refusal.
The Law Commissions recommended that if there was any doubt on the point it should be removed and that refusal or failure to answer questions should be made an offence. That now appears in Clause 5(7) and it is an important new law to be introduced in this consolidation Bill. I question whether it should be introduced without further safeguards to the individual, in particular the safeguard which is almost invariably put into legislation where there is an offence for failure to answer questions put by some official.
Such an offence under, for example, recent agricultural Acts has always been accompanied by a provision that the person questioned should have the right to refuse to answer if question and answer would be in breach of the privilege which a client has in his communi- 1640 cations with his solicitor. This is a privilege which is frequently called "the solicitor's privilege" but it is wrong to call it that. It is actually the privilege of a client who consults his solicitor that the solicitor should not be questioned upon matters between the two.
But subsection (7) has now been introduced into the Bill without any such qualification, although we have recently had a further example of the qualification of privilege when a similar provision was introduced in the Companies Act, 1967. Indeed, I recall no previous occasion on which this point has been raised when it has not been conceded by the House. I submit that, in introducing this new law on the recommendations of the Law Commissions, there should have been a qualification to this effect.

§ The Solicitor-General (Sir Arthur Irvine)
As always, the hon. Member for Crosby (Mr. Graham Page) put forward his argument with great reasonableness. Clause 5, and in particular subsection (7), is, in terms, as nearly as possible a verbatim re-enactment of Section 24(5) of the Sea Fish Industry Act, 1962. The only change of the law which it makes and which was recommended by the Law Commissions is that it applies to the powers conferred on an inspector by subsection (3), thus removing a doubt. It is, therefore, in that respect a very good example of the application of consolidation with amendments within the restricted ambit appropriate to the term "consolidation". The kind of proposal that has been adumbrated would seek to make a different and substantial change in the Clause.
On the wider issues raised by the hon. Gentleman, I suggest that the whole matter should be considered in the context of the subsection. It is important to remember that, in a great number of instances, it will be in the interests of the grantee of the fishery rights that the inspector should have the full opportunity of making inquiry and collecting all the information that he can.
The right conferred by an Order under Clause 1 is valuable. Questions of fact relating to the appropriateness of its continuing in being must necessarily call for careful inquiry and investigation by an inspector and, as I have indicated, at 1641 least as often as not the outcome of that careful investigation can be expected to be to the advantage of the grantee.
The hon. Gentleman specifically referred to matters affecting the communications, for example, between solicitor and client and statements possibly possessing in certain cases an incriminatory character. Our belief is that this aspect of the matter—which. I agree, is most important—is sufficiently and adequately covered by the reference in the subsection as it stands to a refusal "or without reasonable excuse" failure to provide information.
I take the view, and recommend it to the Committee as the correct one, that the expression "reasonable excuse" gives sufficient protection and safeguard to any grantee or other person who may be affected by the application of the procedure that the Clause envisages. I trust, therefore, that the Committee will take the view that as the Clause and the subsection stand they meet the case and involve no such undesirable departure from precedent or principle as the hon. Gentleman has suggested they might on first view.

§ Mr. Graham Page
The Solicitor-General has given an unsatisfactory answer to a reasonable proposition and I would not wish the Clause to stand part as drafted. I suppose that it is a characteristic of every Government but particularly of this Government that there is a stubborn rejection of a perfectly nonpolitically controversial proposal from this side merely because, so it seems, the Government wish to hold on to their original drafting of a Statute.
If one has time, one eventually wears them down, as we have seen in recent legislation. Such proposals often go back to suggestions made on Second Reading and eventually are incorporated in the form of Lords Amendments after we have had time in which to drive them home to the Government throughout all the stages of the Bill.
In this case, however, we have not got the time. This is the last occasion on which the Bill can be amended, so that the Government are proposing to push it through without the normal qualifications of this sort of provision which have been accepted, after pressure, on several occasions in recent legislation, including taxa- 1642 tion, company and agricultural law. In all these cases, a qualification has been inserted to any provision such as we see in Clause 5(7).
The hon. and learned Solicitor-General has said that it is in the interests of the person questioned to answer these questions. It always is whenever a person is questioned. But it has been thought necessary in this case to provide that, if the questioner does not act in his own interest, he is a criminal. It is necessary to have some sanction when a person refuses to answer these questions. He may think it is not in his own interests to disclose communications between himself and his legal adviser, and the legal adviser may think that it is not in the interests of his client to answer those questions. In other branches of the law he is protected if he does not do so and he certainly should have been protected in this case.