HC Deb 09 July 1981 vol 8 cc670-3
Mr. Peter Archer

I beg to move amendment No. 8, in page 27, line 5, leave out '(2)'.

Mr. Deputy Speaker (Mr. Ernest Armstrong)

With this we may discuss amendment No. 9, in page 27, leave out lines 6 to 10.

Mr. Archer

There were a number of useful exchanges in Committee arising out of the recommendations and queries by a committee of Justice sitting to consider reforms of civil procedure. It is still sitting under the chairmanship of Mr. Laurence Libbert, QC, and includes some distinguished lawyers, such as Sir Denis Dobson and Sir Jack Jacob.

It was decided in Committee upstairs that in respect of some of these matters the Solicitor-General would write giving me the benefit of his reflections. He has been kind enough to do so, and I am grateful. We may return to most of them at a future date after we have all had the opportunity for consultation and further reflection, but I could not resist tabling the amendment, because I was intrigued by the Solicitor-General's answer.

Clauses 33 and 34 relate to some useful powers about the preservation of property and the disclosure of documents that may become the subject of an action hut before the action has been brought. The clauses relate to orders for disclosure and the production of documents by persons who are not parties to an action.

I was, puzzled, because, according to clause 35(4), those parts of the two clauses that extend only to personal injury litigation shall bind the Crown. However, clause 33(1)—that is to say, pre-trial preservation and inspection which extends to other classes of action—will bind the Crown only in respect of personal injury proceedings. In other words, it will not bind the Crown in respect of other kinds of action. I ask why. The Solicitor-General helpfully pointed out in his letter that section 21 of the Administration of Justice Act 1969, on which the clause is based, did not bind the Crown at all. The anxieties that I am expressing have existed all this time and we have not noticed them.

The Solicitor-General pointed out that it was only following the Winn committee on personal injury litigation that the position was changed. Up to that stage I was grateful for what he had said, but he went on to say that any further imposition upon the Crown would have to be justified on the merits. I find that puzzling, because it seems to me that what requires justifying on the merits is the exemption of the Crown from remedies available against other litigants.

I say at once that I do not propose to press the amendment to a Division. I am realistic enough to know that we reached the high water mark of our fortunes in these matters in Committee and, as the Government are not seeking to reverse an important decision taken in Committee, I am content to leave the present package undisturbed.

However, as the Solicitor-General reminded us in Committee, there will be other Bills and other occasions. So that we may have food for our reflections meanwhile, I should be grateful if the hon. and learned Gentleman would tell us why it is self-evident that the Crown ought normally to be exempt from procedural orders affecting its subjects.

The Solicitor-General

One of the good things about the Bill is that we have been able to argue things out and to agree on many of them. I regret to say that this is one on which we cannot agree.

I am obliged to the right hon. and learned Member for Warley, West (Mr. Archer) for the way in which he expressed his feelings. He is right to say that section 21 did not bind the Crown in any actions. We are taking a step in the right direction by removing the restriction in personal injury cases. I hope that the right hon. and learned Gentleman, the House and the country will accept that we are doing so for no reason other than that the Crown has feelings too and accepts that when someone has suffered injury it is a special situation and one should not maintain the restriction unless there is a strong reason for doing so. We do not believe that there is such a reason in that class of injury.

I suggest, however, that different considerations arise in respect to other litigation, where the issues are less straightforward and less easily defined before the start of the proceedings. It is sometimes difficult to decide liability in personal injury cases, and even more difficult to decide what the damages should be. But the issues are fairly clear; one knows what one will be about and one knows that there will not be extensive discovery. There may be discovery of documents relating to special damage and medical matters, but a claim for immunity, for example, is unlikely to arise.

Take, first, proceedings for breach of contract or for the infringement of intellectual property rights. If the amendment were allowed, orders might be sought from the court for the detention or inspection of, say, military equipment or of property that was situated in a prohibited place for the purposes of the Official Secrets Act. If once the proposed plaintiff were to establish that a question affecting such property might arise in the proceedings which might, or might not, be started, the Crown's hand would be forced; it would be compelled to play the "public interest" card in a context of uncertainty.

The right hon. and learned Gentleman is familiar with the public interest card and he will agree that it has to be played on occasions. The less the uncertainty surrounding it, the more satisfactory it is, though it is not a very satisfactory business anyway. It will have to be played in a context of uncertainty about the questions that will arise, the issues that will separate the parties by the time the case comes for trial and whether the threatened proceedings will ever be brought. Otherwise, it must yield to the application. That situation could not arise in a personal injuries case. I think that even from that brief explanation the right hon. and learned Gentleman will see that it is not difficult to envisage cases in which that difficulty could arise. I must simply say that it is the Government's judgment at the moment that it is not in the public interest to have the question of injury to be considered in such uncertain and open ended circumstances.

Then there are orders for the inspection of documents. There is the question of property in the form of documents. The Crown has not yet had to argue whether "property" as defined in clause 35(5), which reproduces existing law, includes property in the form of documents. If it does, the implications for the Crown are very serious. Take, for example, an application to inspect documents in connection with proposed proceedings—not yet brought—for defamation, wrongful arrest, malicious prosecution or wrongful dismissal. The Crown is inevitably the repository of much confidential and sensitive information which might have a bearing on such proceedings—for instance, information as to the investigation of crimes and regarding matters of security and in respect of prosecutions that may be brought in the future or which it may have been decided not to bring at all. If the Crown were faced with an application under clause 33 to inspect any such documents, but were not to have the benefit of having the issues clarified it would be in a difficult position.

The right hon. and learned Gentleman will bear in mind the stage of the proceedings with which we are dealing. Later on, when the proceedings have been brought and the issues are clarified, the Crown knows what it is dealing with, but if it were faced with an application under clause 33 to inspect any such documents before having the issues clarified and narrowed by an exchange of pleadings, it would be extremely difficult for it to decide whether and to what extent to claim that the disclosure of the document sought would be injurious to the public interest. It would be prejudicial to the public interest for the decision to be forced upon it in such an uncertain context. The pressure every time would be to make the claim, because that would be the only way to get around the uncertainty, and that is a bad thing.

It may be that in time we can find ways to overcome these problems. At the moment I am seeking, in as non-technical terms as I can on a very technical matter, to show that the Government's opposition to extending this is not without reasons. Those reasons may be argued out in time. That is why at this stage I am putting a good deal on record so that it may be argued out. I wish to say enough to show that there are arguments both ways which merit consideration.

In the ordinary rough and tumble of litigation between subjects a robust approach by the courts can no doubt be justified, but it is a different matter where the information which the Crown may be called upon to disclose is comfidential and sensitive and where the issue for the court is whether its disclosure would be injurious to the public interest. The Crown's position in these respects is different. It is a matter for argument whether it is sufficiently different to preserve this for ever. Nevertheless, it is different. It is unique, and it needs, in the public interest, to be protected. I do not think that anyone would doubt that.

Those, in a rather abbreviated form, but I hope sufficiently full to give an indication of their substance are the reasons why the Government, while not only willing, but anxious, to take this one step forward in the interests of the person who has been injured, would not be willing to go any further forward—or rather, any further, as I would not accept that it would be forward—without full discussion of the kinds of problems to which I have referred.

Mr. Archer

I am very grateful to the Solicitor-General for that helpful deployment of the case. As he says, we may debate the matter on other occasions. For the moment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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