Official Secrets Bill (Hansard, 16 February 1989)

§ The Minister of State, Home Office (Mr. John Patten)
On a point of order, Sir Paul. I should like to refer to the points of order raised by the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) at the beginning of each of the last two sittings of the Committee, on the relationship between solicitors and their clients. The House will find a point of order on 2 February at column 441 of Hansard, and my response recorded there. He also raised a point of order yesterday.
With your permission, Sir Paul, I should like to tell the Committee that, having considered the matter anew and taken further legal advice, we remain confident that the common law relating to legal professional privilege protects communication between a client and his solicitor of the kind I was addressing during the Committee proceedings on 25 January.
Legal professional privilege acts to prevent the production in evidence of such a communication and hence to deprive of its foundation any prosecution that might ever be sought to be founded on such a communication in the circumstances that the right hon. Gentleman envisaged in his first point of order. But of course it is well established that anyone who, when communicating with his solicitor, seeks the latter's help in the furtherence of some criminal purpose, is disqualified in respect of that communication from the benefit of privilege.
The function of legal professional privilege is to aid the administration of justice and not to aid crime. But such a person's position is quite different from that of someone who discloses information to his solicitor in the process of seeking advice in good faith about his own legal position in relation to it.
This is not a new issue. It has existed for many years under section 2 of the Official Secrets Act 1911 and there is absolutely no evidence that it has given rise to any practical difficulties for lawyers or for their clients.

§ Mr. Roy Hattersley (Birmingham, Sparkbrook)
Further to that point of order, Sir Paul. This will break new ground for points of order, but may I pursue the point as briefly as necessary, as we are constrained by the timetable motion?
The advice that the Minister of State gives to the Committee is in absolute contradistinction to the judgment made by the Law Society, which, as it is responsible for solicitors' relationships with their clients, may be thought to have some authority on these matters. It is also contrary to common sense, as it is unlikely in the House and outside that the practice to which the Minister refers can overrule—for that is what he implies—the 504 commitment in an Act of Parliament that specifies individuals who can pass on information, but does not include clients wishing to approach their solicitors.
May I raise a further, and genuine point of order— unlike the Minister of State's first statement and my response to it—about the problems that the Minister of State's statement raises for proceedings on the Bill? Clearly, the subject ought to be debated, but cannot be, because on a guillotine motion, clause stand part motions do not become debatable due to pressure of time. What is more, Sir Paul, with great respect to you and the Chairman of Ways and Means, an amendment that would have allowed us to clear up the matter, at least in part, has not been selected.
All I can do, therefore, is to make a ritual, but clearly very reasonable, complaint about the problems caused by the timetable motion, and ask that when Mr. Speaker and his advisers select the amendments for the Report stage, they understand that it is essential—a necessity compounded by the Minister of State's statement—that we are able to debate exactly this question and get it cleared up once and for all.

Several Hon. Members
rose—

§ The First Deputy Chairman of Ways and Means (Sir Paul Dean)
Order. I will take one or two more points of order. I am sure that the Committee realises that I allowed that point of order from the Minister and a response from the Opposition Front Bench, but clearly it would not be in order to debate the matter, especially as we are operating under an allocation of time motion.

§ Mr. Michael Foot (Blaenau, Gwent)
Further to that point of order, Sir Paul. May I say from the Back Benches that we have rights to protect in this sphere, just as much as have spokesmen from the Front Benches. I am sure that my right hon. Friend the Member for Birmingham, Sparkbrook (Mr. Hattersley) agrees with that. We are in great difficulty. Obviously, this was an improper point of order in the first place. I am not blaming you, Sir Paul, because you did not know what the Minister was going to say. But surely, the Minister ought to have asked to make a statement, or made it absolutely clear to the House, rather than raising a point of order, that we would be given a chance to debate the matter in the later stages of the Bill. That is the only way in which the matter can now be remedied.
I hope that, as soon as the Home Secretary has a chance to take charge of his Bill again, we shall have a clear statement from him and an absolute guarantee that this matter, which should never have been put to the Committee as a point of order, will come up on Report when we shall have the chance of a proper debate. If necessary, further time should be granted, because the Government are apparently seeking to deal with a major matter by means of a point of order, and Back Benchers will have no chance of proper debate.

§ Mr. Tam Dalyell (Linlithgow)
Further to that point of order, Sir Paul. I do not wish to be pedantic, but for non-lawyers this is the sort of statement that is much better to see in writing rather than to hear it once, so that one can look at the small print.
I have one question for the Minister. He used the phrase: seeking advice in good faith. 505 I am not sure how we can prove good faith or otherwise, but do we take it that, in general, any communication between a solicitor and someone who approaches him is privileged? I am thinking especially of the position of Brian Raymond.

§ Mr. Jonathan Aitken (Thanet, South)
Further to that point of order, Sir Paul. The Minister was kind enough to make a statement and if I understood it correctly, he made it clear that his authority was the common law, and not statute law. Could I ask him, through you, Sir Paul, if he will publish in the Official Report, or at least circulate in correspondence, as the Front Bench is wont to do at present, to those of us who are interested, the authorities of common law; in other words, the case law and the judgments that make up that case law? Then we can all have a look at an issue that must be at least debatable, as it seems to conflict with the Law Society's views.

§ Mr. Richard Shepherd (Aldridge-Brownhills)
Further to that point of order, Sir Paul. Is it not the case that common law is subordinate to statute and that in the circumstances it is inappropriate for the Government to rely upon common law?

§ Mr. Hattersley
Further to that point of order, Sir Paul. You will understand, and I think from your demeanour you sympathise with, the fact that the point of order I raised was a response to the Minister's statement, for statement it was. You were kind enough to allow me to reply.
I now raise what by any standards can be regarded only as a point of order, concerning the intolerable position into which the Committee has been put by the Minister's behaviour. The Minister made his statement under the guise of a point of order. Quite rightly, Sir Paul, you would prevent that statement from being cross-examined in the way that statements usually are. The Leader of the House and the Home Secretary, who are in the Chamber, have a duty to make sure that the situation is redressed. We must have a statement, given as a statement, on some occasion, so that we may question the Minister.
To allow a point of order that puts on record a contentious viewpoint without its being cross-examined in the usual way is an abuse of the proceedings of the House.

The First Deputy Chairman
I cannot take this matter any further at the moment. I am sure that those on the Treasury Bench have heard what is being said. I shall of course report to Mr. Speaker what is being said. Without, of course, making any commitment for him, I am sure that he will take this discussion into account when he makes his selection for the Report stage of the Bill.