PRIVILEGED INFORMATION (Hansard, 19 October 1981)

§ Mr. Eyre
I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Mr. Bryant Godman Irvine)
With this it will be convenient to take Government amendments Nos. 140 and 151.

§ Mr. Eyre
New clause 30 deals with the complex question of legal professional privilege as it applies to investigations under the Companies Acts and to proceedings brought under the 1948 Act. Under the present legislation there are provisions in the 1948 and 1967 Acts with a bearing on this question. Under section 175 of the 1948 Act disclosure is not required by a solicitor to the Secretary of State or an inspector of any privileged communication made to him in that capacity except as regards the name and address of his client. Under section 446 of that Act, where proceedings are instituted under the Act by the Director of Public Prosecutions or by or behalf of the Lord Advocate, nothing in the Act is to be taken to require any person who has acted as a solicitor for the defendant to disclose any privileged communication made to him in that capacity. Finally, under section 116 of the 1967 Act, as amended, nothing in part III of that Act, which is concerned with inspection of a company's books and papers, shall compel the production by a solicitor of a document containing a privileged communication made by or to him in that capacity or authorise the taking of possession of any such document which is in his possession.
Paragraphs 8 and 32 of schedule 3 to the Bill, which the new clause supersedes, would have extended these provisions to counsel.
The Law Society argues that the privilege should extend not only to communications in the hands of a solicitor, or under schedule 3, in the hands of counsel, but also such communications when in the hands of a client. We agree.
As the House will understand, the legal professional privilege with which the Acts are concerned is the privilege of the client and not of his legal representative. We feel that there is a need to remedy an uncertainty in the present law as to whether, if a person waives privilege, inspectors may obtain documents in relation to which privilege lay from that person's lawyer. There is also a need to include a minor amendment to section 446 to bring it into line with the amendment to section 334(5) proposed in clause 86(2) of the Bill which refers to prosecutions instituted by the Secretary of State.
Subsection (1) of the new clause will amend section 175 of the 1948 Act to the extent that a person, whether a lawyer or not, shall not be required to disclose any information which he would in an action in the High Court or, in Scotland, the Court of Session, be entitled to refuse to disclose on grounds of legal professional privilege except, if he is a lawyer, the name and address of his client. This meets the suggestion of the Law Society to which I have referred and also clarifies the question of waiver of privilege inasmuch if privilege is waived by the client in the High Court or Court of Session documents can then be obtained from his lawyer.
Similarly, under subsection (2), nothing in the Act is to be taken to require any person to disclose in proceedings instituted under the 1948 Act any information which he is entitled to refuse to disclose on grounds of legal professional privilege. The proceedings referred to include those brought by the Secretary of State as well as those 80 brought by the Director of Public Prosecutions and Lord Advocate, so bringing section 446 into line with section 334(5) as proposed to be amended by clause 86(2).
Subsection (3) amends section 116 of the 1967 Act in a similar manner to the amendment to section 175 of the 1948 Act, proposed in subsection (1), subject to the inherent difference in the investigation procedures under the relevant sections of the 1948 and 1967 Acts. Investigations to which section 116 of the 1967 Act apply require as a first step that documents be produced, whereas sections 175 and 446 of the 1948 Act contemplate oral evidence being given without the necessity for any initial production of documents.
I should add that amendments Nos. 140 and 151 are merely consequential.