Evidence held on confidential basis

HC Deb 03 May 1983 vol 42 cc111-30

'10. — (1) Subject to the following provisions of this section, this section applies to evidence which is in the possession of a person who—

1. (a) has acquired or created it in the course of any trade, business, profession or other occupation in which at the time he acquired or created it he was engaged or employed or for the purposes of any paid or unpaid office then held by him; and
2. (b) holds it subject to an express or implied undertaking on his part to hold it in confidence,

and to evidence consisting of material acquired or created for the purposes of journalism. (2) The evidence to which this section applies includes evidence subject to a restriction on disclosure or an obligation of secrecy contained in an enactment other than this section. (3) Subject to the following provisions of this section, the evidence to which this section applies does not include—

1. (a) communications between a professional legal adviser and his client made in connection with the giving of legal advice to the client; or
2. (b) communications between a professional legal adviser and his client or between such an adviser or his client and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings; or
3. (c) any document, record, human tissue or fluid in the possession of a health authority or a registered medical practitioner brought into existence or held in connection with the clinical treatment of a patient; or
4. (d) any document or record in the possession of a social worker, probation officer, priest or other member of a caring profession or its voluntary counterpart and brought into existence or held for the professional purposes of the person possessing the document or record; or
5. (e) any document or record held in confidence for the purposes of journalism, other than a record or document which could be the subject of a warrant under any other enactment

(4) Documents or other articles enclosed with or referred to in such communications as are mentioned in subsection (3)(a) and (3)(b) above are not exempted from this section by that subsection if they were not made in connection with the giving of legal advice or in connection with or in contemplation of legal proceedings and for the purpose of such proceedings. (5) Nothing in subsection (3) or (4) above shall be taken to exclude from the application of this section documents or articles held with the intention of furthering a criminal purpose. (6) Subject to subsection (14) below, where, on an application made by a police officer of the rank of inspector or above, a circuit judge is satisfied—

1. (a) that there are reasonable grounds for believing—
1. (i) that a grave offence has been committed; and
2. (ii) that there is evidence which relates to that offence and to which this section applies; and
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2. (b) that other methods of obtaining the evidence—
1. (i) have been tried without success; or
2. (ii) have not been tried because it appeared that they were bound to fail,

he may issue an order under subsection (8) below or a warrant under section 9(1) above. (7) Before any order is made under this section the person or persons named in the application shall be given notice of the application and shall be entitled to be heard by the judge hearing the application and to appear by solicitor or counsel, and any such proceedings shall be in Chambers. (8) An order under this subsection is an order—

1. (a) requiring that a person—
1. (i) shall produce the evidence specified in the order to a constable not later than the end of the period of seven days from the date of the order; or
2. (ii) shall give a constable and any person accompanying him access to that evidence not later than the end of that period; and
2. (b) prohibiting him from parting with the evidence to any person except—

1. (i) with the leave of a judge; or
2. (ii) with the written permission of a constable.

(9) Where the evidence in question consists of data contained in a computer an order under subsection (8)(a)(i) above shall have effect as an order to produce the evidence in a form that can be teken away. (10) In subsection (9) above "computer" has the same meaning as it has for the time being in section 54 below. (11) Before making an order or issuing any warrant under this section, the judge must be satisfied that the public interest in obtaining the evidence outweighs the public interest in protecting the privacy of the individual, the confidentiality of the relationships referred to in this section or the full and free reporting of events. (12) An application under this section shall indicate how the evidence in question is considered to relate to the inquiry for the purposes of which it is sought. (13) A judge shall not issue a warrant unless he is satisfied that the issue or service of an order under subsection (8) above is likely to result in the concealment, loss, alteration or destruction of anything that might be used in evidence and that the person or persons named in the application is connected with the offence under investigation. (14) An application for a warrant under this section may be made ex parte. (15) An order under subsection (8) above may be served on a person either by delivering it to him or by leaving it at his proper address or by sending it by post to him in a registered letter or by the recorded delivery service. (16) Such an order may be served—

1. (a) on a body corporate, by serving it on the body's secretary or clerk, or other similar officer; and
2. (b) on a partnership, by serving it on one of the partners.

(16) For the purposes of this section, and of section 7 of the Interpretation Act 1978 in its application to this section, the proper address of a person, in the case of a secretary or clerk or other similar officer of a body corporate, shall be that of the registered or principal office of that body, in the case of a partner of a firm shall be that of the principal office of the firm, and in any other case shall be the last known address of the person to be served. (17) If any person in respect of whom a warrant or order under subsection (8) of this section has been issued applies to a High Court judge in accordance with the rules of the High Court and satisfies him—

1. (a) that he cannot produce the evidence or give access to it; or
2. (b) that he ought not to be required to produce it or give access to it,

the judge shall direct that the warrant shall be of no effect. (18) In any application by a constable for a warrant under any other enactment to search premises in order to obtain evidence held on a confidential basis by a professional legal adviser or for the purposes of journalism, the provisions of this section (with the exception of subsection (11) above) shall apply to that application, as if the application were an application for an order or warrant under this section. (19) The costs of any application under this section and of anything done or to be done under an order under this subsection (8) above shall be in the discretion of the judge.'.

Mr. Peter Snape (West Bromwich, East)

Inevitably, many of the arguments that were rehearsed on the last group of amendments apply equally to this group. Both sides of the Committee will be relieved to hear that I do not intend to deploy those arguments a second time tonight, other than where that is inevitable because of the necessarily complicated nature of the replacement clauses.

The subjects that we have been discussing today are of major constitutional importance. The rights of innocent individuals not to have their homes forcibly entered and their possessions searched and seized by the police concern both sides of the Committee. The Opposition believe that the original clauses and, to a certain extent, their welcome replacements represent a massive extension of existing powers to enter and search private premises and private possessions.

Hon. Members on both sides of the Committee must agree that before such additional extensive powers are granted it is our duty to determine whether there is any alternative. Before the powers are granted, there should be the fullest possible debate in Committee. There has been no justification offered either by the police who initially sought the powers or by the Royal Commission which, in a limited form, endorsed the granting of such powers.

When evidence was taken by the Royal Commission, the then Commissioner of Police of the Metropolis said in evidence that the present powers to obtain search warrants where they do exist usually relate to searches for the proceeds of crime rather than extending to a search for the evidence of crime. 10.30 pm

The Royal Commission observed briefly in paragraph 3.36: Present police powers are said to be too limited, particularly when compared with the vast number of powers of entry which other officials have been given by Parliament … There is no power, even under warrant, to enter and search the scene of a murder or kidnap. That is something that exercised the mind of the Minister considerably during the last debate. The Royal Commission added: Most of the powers to search under warrant relate to the proceeds of crime rather than evidence of offences. Another gap is identified in relation to fraud offences; the power to inspect bank accounts arises only after a charge has been preferred or summons issued. During the four months that we were incarcerated in Standing Committee, the Opposition remained unconvinced by the Government's argument. It was even beyond the considerable power of the Minister to persuade us to change our minds. Perhaps the police require the power, with a warrant, to search premises where a murder, kidnap or some other grave offence has taken place, but there is no evidence of particular cases where police investigations have been hindered by the absence of such a power. As the commission observed, most people will readily cooperate in investigations of such grave importance.

Mr. Lawrence

What has this to do with clause 10, interesting though it may be?

Mr. Snape

If the hon. and learned Gentleman had been in Committee during most of its deliberations, he would be well aware of the relevance of my remarks to the clause. I await hearing your displeasure, Mr. Armstrong, if I stray beyond the bounds of order. I have no doubt that you will tell me in your customary courteous way, Mr. Armstrong, if I so stray.

Mr. Lawrence

If the hon. Gentleman had been in his place during the discussions on clause 9, he would know that the issue which he is raising has already been dealt with.

Mr. Snape

I am trying to be polite, Mr. Armstrong. That is difficult in the circumstances, but the hon. and learned Gentleman probably finds it even more difficult to be helpful. If he had taken the trouble to study both clauses, he would know that they are interwoven. If he tells me every two minutes that what I am saying has already been dealt with under clause 9, I fear that our deliberations, which have been necessarily protracted so far, will be prolonged. Hon. Members on both sides of the Committee might decide that the delay is due more to the hon. and learned Gentleman's interventions than to my contribution.

The new clauses and amendments are necessarily complicated. I have no doubt that those who represent the legal profession on both sides of the Committee will tell us that new clause 17 is imperfectly drafted, but in the Opposition's view it brings together the many strands that clause 10 originally possessed. It is our view that new clause 17 should be directly compared with the Government's new clauses, which are connected with other Government new clauses which we are not debating now.

I shall attempt not to relate directly to those inadmissible matters and I am sure that the hon. and learned Member for Burton (Mr. Lawrence) will be delighted about that. If I do, I can, once again, Mr. Armstrong, only crave your understanding and indulgence.

The new clause in the name of my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) contains one improvement compared to the Government's proposals. Subsection (3)(d) of our new clause suggests that any document or record held for professional purposes should be covered by the Bill. I choose an example at random, but it could be a psychiatrist's report referring to a patient which may or may not be covered by the Government's new clauses. The likeliest equivalent seems to be new clause 5, line 1 of which refers to "personal records". We believe that the definition in the new clause tabled by my right hon. Friend the Member for Sparkbrook is a more detailed way of expressing the same thing. I hope that I can persuade the Minister of that. We believe that the drafting of the new clause enables its fairly technical and complicated content to be more readily and easily understood than the multiplicity of new clauses, some of which are relevant to this debate and some of which are not, which cover the same subject. A further example is clause 17(6), which refers to the lowest rank of police officer who can apply for an order under the clause and states that it should be an inspector. The new schedule in amendment No. 153, which unfortunately is not covered by this group, suggests a constable. We prefer the higher rank, but we believe that it is more sensible to draw all these matters together in one new clause.

The Government's definition of offences covered by this group of new clauses and amendments refers to "serious offences". I have no intention of repeating the arguments used in Committee and during today's deliberations about such a definition or indulge in a protracted debate about the Opposition's alternative definition. In new clause 17, we have specified a "grave offence" instead of the serious offence of which the Government appear to approve.

Subsection (12) of new clause 17 provides that the evidence must have direct relevance to the inquiry that the police are making. We included such a subsection because a provision that was accepted in Committee does not appear in the Government's new clause. I trust that the Minister will tell us why it was thought necessary to remove that provision, especially as it was debated and accepted in Standing Committee. We suggest provision for appeal to the High Court. However, no mention is made of such an appeal in the Government's new clauses. The Opposition feel that that aspect of our new clause is a great improvement.

Reference was made in the previous debate to the vexed question of warrants and their signature and to the propensity of justices of the peace to be rather more eager to sign warrants placed before them by police officers than some Opposition Members like. I do not wish to embark on a blanket criticism of justices of the peace, if for no better reason than that one or two are members of my general management committee in West Bromwich. The 1983 triennial review of the Police Complaints Board made some comments on this aspect of the work of a justice of the peace. Under the sub-heading "Search warrants" in paragraph 49 on page 15, it concluded: We have seen a number of cases in which we were, frankly, surprised that justices granted warrants on the information provided". That is not carping criticism from the Opposition. It is a quote from an eminently respectable body. As some justices of the peace are too ready to sign warrants that are placed before them — that is the view of the Police Complaints Board and of the Opposition — we have proposed amendments to the new clause.

Dr. Brian Mawhinney (Peterborough)

Line 11 of new clause 17 mentions "an obligation of secrecy". Later the clause refers to any document or record held in confidence". What is this "obligation of secrecy" and what does "in confidence" mean?

10.45 pm

Mr. Snape

Again, I am in some difficulty. If I pursue that point I shall be greeted by groans from my hon. Friends and wrath from the hon. and learned Member for Burton and, far more importantly, I might incur your displeasure, Mr. Armstrong. I do not attack the hon. Gentleman for saying that, but I would have thought that those words are fairly plain and understandable. I cannot for the life of me see why the hon. Gentleman feels it necessary to embark on a debate that is likely to be out of order.

Dr. Mawhinney

It is difficult to see why it is out of order to probe some of the words in the clauses under discussion. I hope perhaps later to ask similar questions of my hon. and learned Friend the Minister. Who imposes an obligation of secrecy? What is the obligation? How should we decide whether a document is "in confidence"? If a professional adviser has documents, are they all confidential regardless of the contents? How should we decide whether they are confidential for the purposes of the new clause that the hon. Gentleman is presumably advancing for our acceptance?

Mr. Snape

There is a short and simple answer. I think that the hon. Gentleman is a doctor. Both sides of the Committee would probably agree that the doctrine of confidentiality is immediately involved. If the hon. Gentleman feels that that is not so, I am glad that he is not my general practitioner. I should have thought the onus of secrecy lay with the general practitioner, and that is the reason for the wording of the new clause. Before the hon. Gentleman, or any of his hon. Friends, returns to the attack on the drafting of the new clause, I should say that when covering such a wide area it is difficult to get the drafting exactly right. I understand the reasoning behind the hon. Gentleman's point, but it was not necessarily valid or meant as a criticism of the drafting. Indeed, new clause 17 was drafted in consultation with virtually every interested party. Many of the views expressed have now been belatedly accepted by the Home Office.

In drafting the new clause, we were anxious to ensure that the views of the organisations that had expressed such violent concern— in the most peaceable sense—were taken into consideration. No doubt experts on both sides of the Committee could find many things wrong with the drafting of the new clause, but I hope—perhaps in vain —that the Minister will understand the reasoning behind it and have some sympathy with the Opposition's attempt to put all these complicated matters into one clause, instead of scattering them prolifically round the Bill as the Government have done in their belated, although praiseworthy, attempt to replace an extremely controversial clause.

Mr. Eldon Griffiths

I admire the way in which the Opposition have tried to comprehend all of these issues in one clause rather than have them scattershot through the Bill in the rather complicated way in which the Government have found it necessary to proceed. If there comes into the possession of a doctor or other medical authority, such as a hospital, evidence that a person has been involved in a gun fight, and bullets have been extracted from his arm or stomach, does new clause 17 provide that such a case should be governed by absolute confidentiality or would the police have the right in those circumstances to obtain the bullets that have been extracted to trace the gun and, therefore, the criminal who has fired it?

Mr. Snape

In the circumstances that the hon. Gentleman has outlined, the police would have the right to take the bullets once they have been removed from the victim. We would not envisage the police going into the operating theatre and standing over the surgeon while he removed the bullets. That evidence would be available once the immediate and urgent medical treatment had been completed. I am sure that the hon. Gentleman will agree that such a clause which takes those circumstances into consideration is preferable to, as he put it, their being scattershot through the Bill.

Sir Raymond Gower

How does the hon. Gentleman relate subsection (3)(c) of new clause 17— any document, record, human tissue or fluid in the possession of a health authority or a registered medical practitioner brought into existence or held in connection with the clinical treatment of a patient"— to the answer which he gave to my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths)?

Mr. Snape

Such matters are excluded by new clause 3 and clause 10. The hon. Gentleman's question might be better addressed to the Minister of State. I am always anxious to help the Committee, and if he would like me to address that question to the Minister I shall do so now.

Sir Raymond Gower

The wording of new clause 3 is slightly different.

Mr. Snape

It is marginal. I hope that the hon. Gentleman will agree that it is much the same.

The tabling of amendment (b) shows that I am not alone in not understanding what the additional element in the definition of journalistic material held in confidence means. Perhaps the Minister can help the Committee in that regard. It appears that the Government are trying to restrict the category of confidential journalistic material which is exempt from the new search powers of subsection (3). Such a restriction is not mentioned in the Minister's memorandum of proposals to the National Union of Journalists and other press bodies following their recent meeting with him.

We doubt whether the restriction that my hon. Friend the Member for Stockport, North seeks to remove is either necessary or justified. Indeed, given the extraordinary complexity of the Government's replacements for clause 10, the fewer the additional factors argued over by judges and lawyers, let alone by we laymen, the better.

I apologise for the time that I have taken. I also apologise if my explanation of the Opposition's amendments bored, wearied or annoyed Conservative Members. This is an eminently complicated part of an eminently controversial measure, and as such deserves the fullest consideration before the new clause is read a Second time.

Mr. Mayhew

I hope that I can deal with this group of amendments a good deal more shortly that it was possible to deal with the last group, because we were able to extend our previous debate to much of what we are now discussing.

Here the Government are putting forward their proposals to replace clause 10, which deals with material held on a confidential basis. Such a volume of anxiety was expressed to us by doctors, although not exclusively, and journalists—that so delicate were the relationships with which they were concerned that it was important that in some cases confidentially held information should not be looked at by the police at an investigation stage—that we thought it right to introduce these new clauses.

I should make it perfectly clear that for a long time the law has provided no exemption at all for confidentially held information, be it by doctors or priests, at the time of trial. I entirely agree with what was said by my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies), that at no trial has a judge ever asked a priest to breach the confessional, and nothing in the new clauses changes the law relating to disclosure at trial. They deal exclusively with disclosure at investigation.

The Committee is now aware of those matters that we believe it right to exclude from the ambit of the new clause at investigation. They can be found in new clause 3 and are: legal privilege; personal records;"— as later defined— human tissue or tissue fluid taken for the purposes of diagnosis or medical treatment; journalistic material which consists of documents or other records and which a person holds in confidence. Legal privilege is defined in new clause 4 and I take no more time over that. That merely reflects existing law as it has been for many years. The only reason why legal privilege exists is that in an adversarial system such as we operate one cannot work it if one side can get at the advice that the other side receives. That is why legal privilege is limited to communications between lawyers and their clients. No other material is legally privileged under our law.

Personal records are defined in new clause 5 as widely as we can to meet the objective that anyone who, by virtue of a relationship with someone else, affords counselling or assistance and receives confidential information, should be confident, and so should his client or patient, that that confidentiality will not be breached. Certainly the relationship of a psychiatrist to his client, which was referred to by the hon. Member for West Bromwich, East (Mr. Snape) is embraced in new clause 5.

In new clause 6 journalistic material is defined as material acquired or created for the purposes of journalism. But it is only journalistic material for the purposes of the legislation if it is in the possession of a person who has acquired or created it for the purposes of journalism. That will be understood.

11 pm

Mr. Christopher Price

I think the Minister will agree that the journalism clauses and definitions which he has proposed are new both to the discussions that have been taking place in Committee and, indeed, to English law. He will agree that nowhere in the Bill is the word "journalism" defined. Can he tell the Committee now—because it is important to do it the first time we discuss the point—why he has not tabled a clause defining the meaning of "journalism"? If he cannot do that, can he tell us what journalism is? I have been doing it for 20 or 30 years, but I still do not know.

Mr. Mayhew

Fervent representations were made to us by journalists about the importance of journalism and of the confidentiality inherent in it. Over many years journalists have insisted that their sources should remain confidential, and on rare occasions they have been prepared to go to prison rather than disclose the source at trial. Therefore, I believe it to be entirely right in seeking to meet those anxieties that we should limit to journalism the changes that we propose.

In the context of the procedure set out in the schedule, which will have to be followed, it will be open in a contested case for a person who is asked to disclose information to say that it has been acquired or held by him for the purposes of journalism. It will be for the police to satisfy the circuit judge that the material is able to be got at and is not excluded material as defined in the Bill.

We are wise not to seek to define journalism. In the circumstances of this jurisdiction the safeguards that the Government seek to extend are best extended and expressed as set out in the Bill.

Dr. Mawhinney

As I understand it, a legal privilege exists already between a client and his legal adviser. That is the only area in which a confidential relationship has been enshrined in law. In the new clauses that legal privilege is being extended to other confidential relationships. I should be grateful if my hon. and learned Friend could help the Committee by saying what constitutes a confidential relationship and who determines whether it is confidential. Is anything that I say to my doctor confidential? If a Lobby correspondent cares to note in his notebook something that I say to him, is that by definition in confidence? In new clause 5, documents from voluntary organisations are excluded. Would Shelter, for example, be included as a voluntary organisation offering counselling? Would any document held by Shelter be excluded under the definition of "in confidence"? Can my hon. and learned Friend help the Committee on this issue?

Mr. Mayhew

My hon. Friend is right to say that hitherto the only example of legal privilege was the communication between a lawyer and his client. That remains the case. Material held in confidence is dealt with in new clause 3(2), which says: A person holds material other than journalistic material in confidence for the purposes of this section if he holds it subject—

1. (a) to an express or implied undertaking on his part to hold it in confidence; or
2. (b) to a restriction on disclosure or an obligation of secrecy contained in any enactment, whether it is in an Act passed before or an Act passed after this Act."

We are talking about material which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office". The Government were moved to make that special category because we were impressed by what was said both on behalf of what are loosely called the caring professions on the one hand and journalists and representatives of the journalist profession on the other about the importance of maintaining confidentiality.

Mr. Alexander W. Lyon

rose—

Mr. Mayhew

Not being an Irishman I cannot be in two places at the same time, so I shall deal with one intervention first and then I shall be glad to deal with any others.

The new clause says that a certain narrowly defined category of confidential information shall not be get-at-able at all. The remaining confidentially-held information within the definition of the clause can be seen and disclosed to a police officer investigating a serious arrestable offence at the time of the investigation only if the special procedure of applying to a circuit judge is gone through.

I agree that that represents a change in the law, but we are changing the law in making a general power for the police to see material at the time of investigation. Hitherto, as I explained to the Committee recently, there have been only a number of piecemeal powers. We are now making a general power to enable the police, subject to the safeguards, to see material with a search warrant during investigations into a serious arrestable offence. If we are persuaded that there are special considerations of confidentiality affecting a particular class of material, it is perfectly proper to make exceptions to that new power and that is what we are doing.

Sir Raymond Gower

If a person with criminal intent had an implied confidential relationship with a chartered accountant, would that be included in this exemption?

Mr. Mayhew

No, it would not, because chartered accountants are not included in the categories of persons whose personal records form a special category.

Anybody holding material with criminal purpose is almost always guilty of at least conspiracy and is therefore liable to arrest and, in right of that arrest, liable to have his premises searched. I say that to allay certain anxieties.

Mr. Alexander W. Lyon

Are Members of Parliament included in such professions in relation to confidential information that is not covered by the privilege of Parliament?

Mr. Mayhew

If the hon. Gentleman looks at the definition clause of personal records in new clause 5, he will see that 'personal records' means documents and other records concerning an individual … who can be identified from them, and relating—

1. (a) to his physical or mental health;
2. (b) to spiritual counselling or assistance given or to be given to him;
3. (c) to social work or similar activities involving counselling or assistance given or to be given to him; or
4. (d) to other activities relating to his personal welfare and involving counselling or assistance given or to be given to him—
1. (i) by any voluntary organisation; or
2. (ii) by any individual who by reason of his office or occupation has responsibility for his personal welfare."

I suppose that there are very few Members of Parliament nowadays who do not offer advice to their constituents from time to time that would fall within those categories. Depending entirely, of course, upon what the relationship is, I should be very much surprised if he were not able to bring himself within those categories.

Mr. Alexander W. Lyon

Am Ito understand from the hon. and learned Gentleman's definition that, if I have on my files the address of an illegal immigrant and the Home Office ask the police to get that file, they are not entitled to get it? Is that included in counselling?

Mr. Mayhew

All these cases turn upon their own facts and it would depend upon the circumstances in which the hon. Gentleman had this information. The hon. Gentleman, as a Member of Parliament, holds an office which involves receiving, from time to time, information which he is asked to hold in confidence. Whether he was or was not holding it in confidence would be a matter for the judge to decide and a matter for the hon. Gentleman himself to decide. If he were holding it in confidence, it would be protected.

People cannot have it both ways. They cannot say it is essential that their confidential relationship with their patients, their clients, their sources as journalists, or whatever it may be, be protected, and then say that there are circumstances in which it might be better, all in all, if the police were able to make them disclose it. The Government have to do their best to balance conflicting obligations and interests, and the clause that we propose does that.

My hon. Friend the Member for Peterborough (Dr. Mawhinney) asked about the obligation of secrecy. An example is the statutory obligation of, for example, the Police Complaints Board and similar bodies, which are often in possession of confidences obtained by the exercise of compulsory powers to obtain information for the public —the sort of relationship that sets up an obligation of secrecy.

Mr. Clinton Davis (Hackney, Central)

I think that my hon. Friend the Member for York (Mr. Lyon) made a very pertinent point, which the Minister has scarcely answered. Because of the ambiguities and the difficulties of Members of Parliament, why not simply exclude them from the ambit of this provision?

Mr. Mayhew

I do not think there is any need to do that. I think that the way in which I have answered the question deals with the actualities and realities of the position.

Mr. Lawrence

Does my hon. and learned Friend agree that it would appear that the Opposition's new clause 17 is far more restrictive than the provision which the Government are advancing, since subsection (3)(d) refers to any document or record in the possession of a social worker, probation officer, priest or other member of a caring profession or its voluntary counterpart". If Members of Parliament are not social workers, probation officers or priests, and if, as some allege, we are not even members of a caring profession, Members of Parliament would be excluded from the protection of the Opposition's clause.

Mr. Mayhew

My hon. and learned Friend makes a very important point and I think that it is one of the matters which the Committee should consider.

Just to take the point of the immigration offence, that is not an arrestable offence, and certainly not a serious arrestable offence. It is very important that this jurisdiction exists only for serious arrestable offences. If a Member of Parliament gives advice about personal welfare, he will be covered.

11.15 pm

New clause 17 does not, in many respects, differ from the scheme that is proposed in the clauses to which I have already spoken. The major aspect on which it differs from the new clause tabled by my right hon. Friend the Home Secretary is that it provides the right of appeal to the High Court. As the House will know, clause 10 as presently drafted includes in subsection (18) a right of appeal. However, we accepted the argument that a right on the part of the holder of the evidence to be heard would be a far more useful safeguard if it were advanced to the initial hearing of the application. That is what we have done. We have made it an inter partes hearing at first application to the circuit judge.

Our amendments, therefore, replace the right of appeal by a provision that an application should normally be heard inter partes. In view of that change we do not consider that an express right of appeal would be necessary. It should also be remembered that a person who is the subject of a production order under the new procedure will be able to seek a judicial review of the decision to grant the order in the normal way and that if he did so his application would be heard by a High Court judge.

I hope that in those circumstances the Committee will agree that clause 10 should not stand part of the Bill. I hope also that it will agree that new clause 17 is not to be preferred to new clauses 3, 4, 5 and 6.

Mr. Andrew F. Bennett

I am a little disappointed by the Minster's reply. He did not refer to the point made by my hon. Friend the Member for West Bromwich, East (Mr. Snape) about new clause 3 and amendment (b). I hoped that the Minister would explain why the words in subsection (3)(b) were essential. It seems to me that they add little to the new clause. Perhaps the word "continuously" is important. We have all had evidence recently about diaries. If people can show that they have held them continuously, it is important. I am puzzled by the wording that the Government have chosen to put into the new clause. I hope that when the Minister replies he will explain why subsection (3)(b) is essential. It adds nothing to the clause.

The major requirement is that the Bill should be easily understood. Unfortunately that requirement is not met by the Government's new clause. It does not give us clarity. The Minister said that it was not necessary to give us a definition of "journalist" because the circuit judge would recognise a journalist when one appeared before him. The Minister should realise that not necessarily the circuit judge will have to do the recognising but the magistrate, because the definition is linked to new clause 2. If the police are arguing that the material is not covered by new clause 3, it is at new clause 2 that the definition has to be argued, not when we come to this clause.

The Minister should give us some idea of what he thinks a journalist is. Is he someone who receives money for his writing or someone who sends in articles only to get rejection slips from newspapers, or something else? Is he someone who contributes to a letter column regularly for a newspaper? Is he someone who holds an NUJ card? What is the definition of a journalist? There should be some clarity in the clause of what is meant by "a journalist."

Many groups and organisations have their own newsletters and an editor for them. Some of them would be concerned about whether material that they are shown for preparing a newsletter came into this category. Thai is one of the major problems. I hope that when the Minister replies he will give clear guidance to magistrates about how he defines journalists and will tell us why it is necessary for subsection (3)(b) to remain in the Bill.

Mr. Eldon Griffiths

I do not feel particularly easy about the Government's new clauses. They will not greatly assist in the prevention of crime. I much preferred clause 10 as it was.

Essentially, clause 10 allows—for it is still part of the Bill—the police to have access at the investigation stage, subject to an order by a court, to material that would assist them in bringing to light serious arrestable offences. It is a serious departure from the broad intention of the Bill if the ability of the police to achieve that result is impaired. I test the new clauses against that criterion. Will they, taken together, impair the ability of the police to get, at the investigation stage, material that is essential to the discovery of serious crime? That is what we are about. As the Government have proceeded, they have in effect set up a number of new privileges. The legal privilege is a known one, and one need say no more, save only that, once again, the lawyers have won. They usually do in this place, so I suppose no one should be surprised.

Mr. Lawrence

The privilege is to the client's benefit, not to the lawyers'.

Mr. Griffiths

That is the point. The lawyers always maintain that they are engaged in an eleemosynary activity, solely for the benefit of their clients. I beg leave to doubt that. There is a certain amount of personal as well as charitable interest. However, I do not want to talk about legal privilege because it always has been with us and I suspect that it always will be.

I come to the items that are to be excluded from police investigation, bearing in mind that an investigation can take place only when the police have satisfied a court that they have good grounds for believing that there is specified information directly relevant to a serious crime that could involve five years' imprisonment, that it is admissible in a court, and that they have been able to make the case at an inter partes hearing at which both sides were present, and the person who does not want his records searched was able to say why they should not be.

Once the police have proved all that, they were to have had access to the material—but no longer. We now find that they may not have access to something called "personal records". I can understand that, but the definition of "personal records" goes rather wide. There are to be many matters that, in investigating serious crime, and subject to all the requirements that I have outlined, the police may no longer have access to. They will not be able to get at anything that is regarded as being part of social work. I can think of many agencies that call themselves social agencies but that can and do have material available to them that should be able to be brought before a court if it relates to a specified and serious arrestable offence —but no longer. That is to be excluded.

We then have the incredibly broad definitions that personal records will be excluded if they concern matters involving "counselling" or assistance given by any voluntary organisation. I am bound to say, without, I hope, raising any hackles, that when I consider some of the organisations that can describe themselves as voluntary, some of them to the far Right, some of them to the far Left, and some of them engaged in what I would describe as a subversion of our system of parliamentary democracy, I am surprised. Of course they call themselves voluntary organisations, and of course they are engaged in activities relating to counselling and assistance to individuals. They might be sending people to the Soviet Union or South Africa or Chile. In the words "any voluntary organisations", "social work", "counselling" or "assistance", "spiritual counselling" and so on, the Moonies or the loonies might be included. Now, apparently, with all the safeguards that the House has previously discussed, the police will not be able at the investigation stage to get any of these organisations or their information. In my view, we are going a little wide in creating new privileges for people who will not be subject to the investigation of serious crime. We are taking some of the teeth out of the Bill.

I come to the definition of "excluded material". There is to be no access for the police to something described as human tissue or tissue fluid taken for the purposes of diagnosis or medical treatment". Here I want to put one or two specific questions. At the end of the clause defining excluded material there is the interesting phrase: If by virtue of any enactment other than section [Access to special procedure material] and Schedule … a justice of the peace or judge, upon the application of a constable, may issue a warrant to him authorising him to enter premises and search for anything in them for the purposes of a criminal investigation, the things for which a search may be authorised are not excluded material. There appears to an enormously important distinction, on which I think the House should concentrate, between "things" which the police may search for and documents or information which they may not search for. I can identify the problem by putting precise cases to my hon. and learned Friend. He will recall the examples that were given in Committee when we discussed this matter. One was of a man who had been shot twice in the stomach. He was taken to hospital. The two bullets were removed from his abdomen. The police went to the hospital and asked for possession of the bullets, because only in that way could they trace the pistol and thereby possibly the criminal who had shot the man. The bullets were denied them on the ground of medical ethics, because the man in a state of trauma was unable to give what was described as informed consent. As I understand it, the bullets, being "things" under the clause, would still be able to be sought and obtained by the police, and it is essential that we understand that they are things for which the police may search, even though they might not search documents for words.

That is an easy and clear-cut problem. Now I come to the mentally handicapped child who was poisoned. The police were informed and went to the hospital. The child was saved by the stomach contents being pumped out. The police asked for samples of the stomach contents, and were refused on the ground of medical ethics. It was therefore impossible for the police at the investigation stage to establish whether the poison that had been administered was strychnine, rat poison, or something of that nature, and thus were prevented, by not being able to obtain a forensic sample of the stomach content, from pursuing the investigation and finding out who the poisoner was.

Is the content of the stomach a "thing"? My hon. and learned Friend may reply that it is, in which case I shall be content. However, what about the hospital record, once the content had perhaps been thrown away, stating the nature of the poison? Is that to be excluded from police investigation? As I read the Bill, it would be excluded. In my view, that would greatly handicap the course of justice.

Let us take an even more difficult case — again, a real one. It is the case of a woman who had been brutally assaulted, beaten up, and appallingly raped. She was rushed off to a hospital—or it may have been a doctor's surgery. The police were informed of the occurrence by her flatmate. They went along and asked for the clothing. They wanted the forensic evidence of the blood, semen and hair because that was the only way to trace the poor woman's assailant. They were denied that evidence on the ground of medical confidentiality.

11.30 pm

Am I right in thinking that, if the police ask for the clothing, that is one of the "things" and that under the new clause they would be able to obtain it? I suppose that a sample of semen, if taken from the clothing, would also come under the category of "things" and they would be able to obtain it. Suppose the clothing has been destroyed but a medical record at the hospital states the blood group and other information. Does the proposal mean that the police can obtain the "things" but not the records which relate to them?

I have another example. The police searched all over the north of England for the Ripper. They received hundreds of reported sightings a day, most of which were wrong because people have fanciful reactions to news stories and imagine that they see things. Each clue had to be checked painstakingly by hundreds of police officers at enormous cost of time and money.

Some of the sightings hypothetically could have been of a man with a deformity of the jaw, for instance. If the police had been able to check that lead they would have had the advantage of being able to exclude a large number of people who had to be investigated because of the sightings. If the police went to the local dentists or hospitals and asked for all the dental records showing men with that peculiar form of declivity of the lower jaw, would they be refused under the new clause, or would it be a "thing" which the police could obtain? There is no clear definition in any of the new clauses.

I declare an interest in my next argument because for many years I was editor of Time magazine and managing editor of News Week. I have had experience of hiring and firing journalists over about 18 years. Journalists hold dear the need to protect their sources. Honourably, journalists have been willing to go to gaol rather than disclose information which they believe to be given to them in confidence. That is true of the majority of decent journalists. But not all people in journalism are men of integrity. Occasionally the great cry about protecting sources is heard, largely because the journalist has invented something, and when asked where he obtained some load of old tripe he invents a fictitious source and is willing to go to prison to protect it. It is only a minority of journalists who do not observe the scruples and the honour that the whole of the profession rightly claims.

The Bill has been so amended as to create an almost absolute privilege for someone who merely has to say, "I am a journalist," My hon. and learned Friend will probably say that the court will examine the matter and say "This chap has withheld evidence. He claims to be a journalist but he is not." The court may decide that the claim to be a journalist is bogus. In the real world, however, police officers dealing with a difficult crime will sheer off getting involved in arguments in the courts as to whether a person is a journalist. I agree, therefore, that we must ask ourselves exactly what is the definition of a journalist. I believe that the term is incapable of definition.

I cite another personal example. When I was a correspondent for a major news magazine a man came to see me in London claiming to have obtained the order of battle of the Soviet army. This was in the days of the cold war, so it was fascinating stuff. He asked for money and I asked to see some of his wares. He brought an interesting document showing in great detail the state of the rifle divisions of the Soviet army in East Germany, the number of tanks, and so on. It had silhouettes, numbers and statistics. He had torn the document in half so that I could see only one half and asked for a substantial sum of money for the missing half.

At that time, there was no doubt that it was a story of considerable importance. But I was sceptical and I took advice. At this long remove, after 20 years, I can say that I consulted British intelligence, to which I had access. It turned out that the man had illegally obtained a document which indeed showed the order of battle of the Soviet army, but it was in fact the British intelligence estimate of the Soviet order of battle which the man had stolen from the flat of a member of the Commonwealth chiefs of staff who was on a course at Aldershot.

I was, therefore, in a moral dilemma. Should I, as part of my journalistic responsibility, send the information to the United States for my then employers to publish, where it would assuredly have been added to the long list of British intelligence failures at a time when delicate negotiations were taking place between the United States and the United Kingdom which I did not wish to compromise? Or should if have greater care for what I conceived to be the interests of my country? In fact, I shopped the informant and I told the intelligence service how he had come to me with the information.

I tell that story simply to illustrate that journalists frequently have to make difficult decisions. We should not confer upon them an absolute privilege. We should look to them to behave honourably and responsibly. In a sense, it is an insult to the good profession of journalism to suggest that its members need an absolute legal privilege when in my experience most of them are prepared to behave honourably in the first instance.

I put the question directly to the Minister. If a journalist obtains information about a likely IRA strike, as has happened in television journalism, and although members of the editorial staff have no absolute knowledge they have reason to believe that they have come across information which may lead to the destruction of men, women and children in parts of this country, should they have the absolute legal privilege not to disclose that information?

I believe that the position under the original clause 10 was preferable. If the police went to the court and stated that they had reason to believe that not general but specific information was in the possession of a journalist, which was admissible in a court and was likely to lead to a serious arrestable offence, an inter panes hearing had been held and a judge had been satisfied that they needed the information, that information should not be placed beyond the reach of the police, as the new clauses seem to provide.

The hour is late and I have detained the Committee on an important matter. We must see how, under the schedule, the whole matter of special procedure will be pursued. Under the new mechanism, ways and means may exist within the Bill, as amended, to enable most of my fears to be put at rest. Unfortunately, due to the nature of the selection of amendments, I cannot debate that at this stage because it comes under the next group of amendments.

It is important to the police service, the country and Conservative Members who gave an undertaking at the last election to strengthen the powers of the police to investigate serious offences that the Minister should answer my direct questions.

Mr. Ian Wrigglesworth (Thornaby)

The hon. Member for Bury St. Edmunds (Mr. Griffiths) was anxious about any journalist who might turn out to be a rogue—or, indeed, a member of the medical and other professions who are excluded by the new clauses. The hon. Gentleman and the House must set against that possibility the restrictions on the freedom of the members of those professions if the clauses are not included in the Bill. Most Opposition Members felt in Committee that the freedom of the vast majority of the professions as embodied in the new clauses should be protected from the police, as should all fundamental freedoms and rights in our society.

It is unfortunate that the Minister, both in Committee upstairs and again this evening, said that the evidence being excluded from police investigation under the clauses could still be brought before the courts. We are not debating the power to bring confidential information before the courts, under subpoena. No one in the House would resist the right of a court to subpoena confidential information to be debated before the court, in public. That has always been a right of the court. However, tonight we are debating whether the police should have the power to search for confidential information in confidential files.

I wish to welcome the movement made by the Government since Committee in response to the pressure put upon them. I declare an interest as a member of the National Union of Journalists. I, on behalf of journalists, pressed the Government for such a move. However, I was surprised—as, I suspect, were some Opposition Front Bench spokesmen — when the Government excluded certain categories. We thought that they might exclude doctors and ministers of religion, but we did not think they would exclude journalists, social workers and other categories.

It would be churlish of those who pressed the Government to move in that direction if we did not thank them for doing so. The way in which the Government have arranged matters is slightly complicated, but the amendment tabled by the Opposition is even more complicated. With great respect to the hon. Member for West Bromwich, East (Mr. Snape), I must say that he demonstrated that in his speech when he sought to explain the amendment to the House.

Mr. Snape

Perhaps one reason why the hon. Gentleman could not follow my train of thought was that he was so concerned about these matters in Committee that he went off to Japan for four weeks.

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Mr. Wrigglesworth

The hon. Gentleman knows that that is a gross exaggeration. A number of the hon. Gentleman's colleagues did exactly the same thing. At least I was not earning my bread while doing another job, as some Opposition Members were. Let us not start debating that sort of thing.

I wish to express my enthusiasm for the way in which the Government have moved but I hope that the Minister can provide some clarification when he replies. There is doubt about some of the definitions and I hope that it will not be left to the courts to determine them. If the Minister cannot provide clarification when he replies, I hope that it will be possible in another place to provide the definitions that have been sought by hon. Members on both sides of the Chamber.

Mr. Pitt

Like my hon. Friend the Member for Thornaby (Mr. Wrigglesworth), I welcome the new clauses. However, I ask the Minister to provide some clarification when he replies, especially on new clause 5, which I welcome from a personal standpoint. I worked for six and a half years in an occupation that is now being described as caring.

My hon. Friend the Member for Colne Valley (Mr. Wainwright) has received a communication from the Westminister Pastoral Foundation, which is an ecumenical foundation and cannot be described as a church per se. We must also consider the elders of Quaker movements and others who, although unordained, are spiritual counsellors for members of their religious communities. I understand that ordination will not necessarily be a specific criterion of a spiritual counsellor. In other words, a person may hold a position within his church or religious community which is a position of counselling, although not that of an ordinant.

I share the consideration and concern of the hon. Members for Bury St. Edmunds (Mr. Griffiths) and for Stockport, North (Mr. Bennett) about new clause 6 and the definition of "journalist". It is capable of wide interpretation and I hope that the Minister will tell us what is a "journalist".

New clause 16 was lucid, but new clause 17 is opaque. I had hoped that the hon. Member for West Bromwich, East (Mr. Snape) would make it at least translucent. Instead, he gave it a specular quality. The new clause merely reflects light and we cannot see through it.

My colleagues in the Liberal and Social Democratic parties and I will be supporting the Government's new clauses. They do not go all the way, but they go considerably further than original clauses 9 and 10.

Mr. Mayhew

The amendment of the hon. Member for Stockport, North (Mr. Bennett) seeks to delete the provision which defines confidential journalistic material as material held continuously in confidence since it was first acquired or created for the purposes of journalism. We have recognised in the new clause the importance of a free and healthy press and of protecting journalists' confidential sources. The evidence which is to be exempted is that which is held in confidence from the time when it is first acquired.

Without the paragraph which the hon. Gentleman's amendment would delete, journalistic material would count as confidential for the purposes of the new clause even if it were acquired by a journalist on a non-confidential basis, provided only that at some later point he entrusted it to someone else to hold. That would be far too broad and I can think of no justification for it. It would go way beyond the aim of protecting confidential sources, bearing in mind that we are talking about substantial evidence in the most serious of crimes. It must be remembered, too, that the new clause does not limit exemption to those who are professional journalists. It is the activity rather than the occupation per se that is protected. It is plainly right that bona fide continuity should be required, lest those who are not professional journalists should be tempted to abuse the standards of conduct that professional journalists ordinarily uphold.

I come to the points made by my hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths). He said that the only test that he applied to any changes in the Bill was whether they would make law enforcement easier and facilitate the work of the police. I hope that I do not need to say that that is important.

Mr. Eldon-Griffiths

I did not say that.

Mr. Mayhew

If I have misquoted my hon. Friend, I apologise. I thought that I heard him say that that was the only criterion by which he looked at it. Although it is an important criterion and forms a great deal of the Bill's policy, it is not, and cannot be, the only one. We have to see also that the rights of the individual are not wantonly or unwarrantably infringed.

My hon. Friend said that "personal records" seem to be defined too widely. Confidential personal records would not have been caught by the Bill as drafted, save in the most exceptional case. It was only because it was represented to us that, whatever the laws of evidence may say, doctors' patients would come to believe that their records could be investigated that my right hon. Friend the Home Secretary determined that the matter should be made express and clear, where previously it had been implicit.

If that is the case, we might as well reassure as many people as possible that it is so, as reassurance is the order of the day. We are not, therefore, limiting the exemption to doctors. We are expressing it as widely as this to make it clear to anyone who may have these anxieties that he has nothing to fear. He would not have been get-at-able by the police in any event, save in the rarest of cases.

On the second point that my hon. Friend raised about—

Mr. Eldon Griffiths

The definition is clear. It is still a crime to procure sexual intercourse with a minor. The Paedophilia Information Bureau falls within all the definitions of "personal records". It is social work by its own definition; it is a voluntary organisation; it gives counselling and it is concerned, as it judges, with personal welfare. Would that type of organisation fall within the confidentiality that is provided under the "personal records" definition?

Mr. Mayhew

If such an organisation were proved to be in the business of inciting a criminal offence, those who took part could be arrested and their premises searched in right of that arrest. That is the practical answer to my hon. Friend's question.

We were pressed by the medical profession to include in the exemption of this power of search human tissues and tissue fluids that were obtained as part of diagnosis or in the course of medical treatment. When the medical profession says, "If you do not exempt these we shall have people saying that they do not want us to take a blood sample, or whatever it may be, and that will interfere with diagnosis" we have to take it seriously. We have taken equally seriously the assurance of the president of the General Medical Council that the profession takes seriously the obligation to co-operate with the police. It does not view its duties exclusively in the light of its relationship with its patients.

We agreed that these minor extensions should be included in the exemptions that we proposed originally. I believe that to be right. I believe that we can rely on the doctors' co-operation in that respect.

My hon. Friend referred to bullets, and he knows how important we regard the fact that the police should be able to obtain from a hospital bullets that have been taken from the body of someone who has been shot in some incident. That was at the forefront of our case, and they would remain subject to a search warrant.

I believe that stomach contents would almost certainly constitute human tissue or tissue fluids. To the extent that they did not, they would not be exempt. To the extent that they do, they will be. Bloodstained clothing will rightly be able to be obtained, because it is extremely important that the police should be able to obtain and examine clothing from a rape victim, for all the reasons that my hon. Friend mentioned.

But that does not apply to a medical record. It is important that there should be reassurance that, if the medical profession says that a medical record is of particular importance, it will not come within the powers of the police anyway, because of the rules of evidence. Dental records will be excluded.

For the reasons that have been given by hon. Members, it is important that the position of journalists and the freedom of the press should be recognised. However, it is not right to say that the police will sheer off any case in which that might arise. An application will be made to the circuit judge and he will determine whether the exemption applies.

I was asked whether a journalist who had infomation about a likely IRA strike would be exempt. The answer is that he would not be, because paragraph 4 of part II of schedule 3 to the Prevention of Terrorism (Temporary Provisions) Act 1976 makes it a criminal offence to conceal that information. The powers of search and anything else that goes with them will apply.

Mr. Pitt

I think that the Minister might wish to answer a point that I made. I know that there was a counterveiling noise on my left, but I asked whether non—ordained members of a religious community were considered to be spiritual advisers.

Mr. Mayhew

I am sorry that I omitted to answer that question. Clause 5 deals with personal records. I do not want to go into the benefits of ordination, but such a person would plainly be a person who by reason of his office or occupation had responsibility for the personal welfare of somebody else.

Question put and negatived.