§ Mr. Alistair Carmichael (Orkney and Shetland)I beg to move amendment No. 37, in page 5, line 43 [Clause 7], at end insert—
'(8) Nothing in this section shall permit the disclosure of items subject to legal professional privilege.'.
§ Mr. Deputy Speaker (Sir Alan Haselhurst)With this it will be convenient to discuss the following amendments: No. 38, in page 13, line 33 [Clause 22], at end insert,
other than any item subject to legal professional privilege.No. 39, in page 15, line 7 [Clause 26], at end insert— 40'() A court in Scotland may not issue a warrant under section 18 or 22 in respect of any evidence unless the court has reasonable grounds for believing that it does not consist of or include items subject to legal privilege.'No. 40, in page 22, line 21 [Clause 37], at end insert—'(9) Nothing in this section shall permit the disclosure of items subject to legal professional privilege.'.No. 41, in page 23, line 38 [Clause 40], at end insert—'(8) Nothing in this section shall permit the disclosure of items subject to legal professional privilege.'.No. 42, in page 25, line 43 [Clause 43], at end insert—'(8) Nothing in this section shall permit the disclosure of any item subject to legal professional privilege.'.No. 43, in page 26, line 21, [Clause 44], at end insert—'(6) Nothing in this section shall permit the disclosure of any item subject to legal professional privilege.'.
§ Mr. CarmichaelNow that we appear to be on a roll, I look forward to a similarly positive ministerial response. Like the amendments tabled by my hon. Friend the Member for Somerton and Frome (Mr. Heath), these amendments may or may not need to be in the Bill, but there is no harm in putting them there. I therefore commend the Minister for her logic on the previous group of amendments and encourage her to be consistent in her approach.
I associate myself with my hon. Friend's earlier comments about the regrettable absence of Scotland Office Ministers. Some of the matters that we are considering have a significant impact on Scots law and it is unfortunate that no one from the Scotland Office is present.
§ Annabelle Ewing (Perth)Is it not also a matter for regret that no Labour Back-Bench Member who represents a Scottish constituency is present?
§ Mr. CarmichaelIt is a matter for regret, but perhaps not of massive consequence. I am sure that the fact that Dover house is in a frenzy of activity, preparing for this evening's reception to honour the Scottish brewing industry, is unrelated to such absence. Having been party to proceedings in Committee and on the Floor of the House, I say in all candour that, given the choice between a brewery reception and today's proceedings, I understand the temptation of attending the former.
The amendments in the group are perhaps not the most exciting that will be presented in the House. None the less, they are important because they relate to the lawyer-client relationship and the privilege that attaches to it. The importance of privilege in that context cannot be overestimated. It is fundamental to the working of the relationship that both parties are secure in the knowledge that the information that passes from one to the other cannot be disclosed to a third party, other than with the client's consent. If privilege is removed, all clients will have at the back of their minds the question, "Should I be telling my lawyer this?" Once that doubt appears, we are on a slippery slope. It is therefore important to place protection of lawyer-client privilege in the Bill.
41 Amendments Nos. 37, 40, 41, 42 and 43 are almost identical. They would all add an extra subsection to the various clauses. They state:
Nothing in this section shall permit the disclosure of items subject to legal professional privilege.The clauses are 37, which deals with letters of request for assistance in obtaining evidence from abroad; 40, which relates to account information; 43, which deals with information about a person's bank account, and 44, which covers monitoring banking transactions. It is easy to understand that privileged information could be held in all those circumstances.The purpose of the amendments is simply to incorporate in the Bill the express protection that the lawyer-client relationship should receive. The genesis of the amendments is the Law Society of Scotland, which raised its concerns with me and other hon. Members who represent Scottish constituencies. The Law Society of Scotland is not known for expressing vexatious concerns about important matters and I therefore hope that the Minister will take it on board that the amendments have that body's imprimatur.
Amendment No. 38 would amend clause 22, which affects overseas freezing orders. It would place some limit on the extent of the evidence that may be seized and retained under clause 22(1)(b). Under the Bill, courts may issue a warrant that authorises a constable to
seize and retain any evidence".Again, a provision should be expressly included in the Bill that that which is subject to the lawyer-client privilege should not be capable of seizure under a warrant, or, indeed, that a warrant would not extend to such information.4.45 pm
Amendment No. 39 to clause 26 proposes to insert Scotland into the list of countries to which the clause applies. This is to ensure that Scottish judges would not be able to issue warrants unless they believed that the material seized did not contain items that were subject to the legal professional privilege. Clause 26 currently provides that courts in England, Wales and Northern Ireland may not issue warrants for evidence
unless the court or justice has reasonable grounds for believing that it does not consist of or include items subject to legal privilege, excluded material or special procedure material.In Scotland, courts do not have excluded material or special procedure material, but they recognise material subject to legal professional privilege. It therefore seems eminently sensible that Scotland should be brought within the ambit of the clause. I look forward to hearing the Minister's comments on the amendments.
§ Mr. Nick Hawkins (Surrey Heath)I support what the hon. Member for Orkney and Shetland (Mr. Carmichael) has just said. I also echo his tribute to the Law Society of Scotland, which has assisted him, me and other colleagues in our consideration of this Bill and other legislation. We are grateful for the work of its director, Michael Clancy, for whom we all share a great deal of respect.
The hon. Gentleman was perhaps a little bold to say that he was on a roll after the hon. Member for Somerton and Frome (Mr. Heath) had claimed all the 42 credit for getting the Government to accept the previous amendments, and been rather churlish about his own amendments.
§ Mr. CarmichaelI am quite accustomed to my hon. Friend the Member for Somerton and Frome (Mr. Heath) claiming all the credit, and over the last two and a half years I have learned to ignore it.
§ Mr. HawkinsI am glad that there is such amity on the re-cast Liberal Democrat Front Bench.
These are important matters, and the hon. Member for Orkney and Shetland will recall that we had a brief discussion about legal privilege in Committee on 10 June, when the issue came up under clause 10(3)(d). On that occasion, we were talking about domestic freezing orders. In the light of the Minister's helpful acceptance of what my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice) and the hon. Member for Somerton and Frome said about consistency during our consideration of the previous group of amendments, I hope that she will say that the amendments in this group would do no harm to the Bill and would also add helpful safeguards and consistency.
I would particularly like to support what the hon. Member for Orkney and Shetland has just said about overseas freezing orders. Given that the Government have already referred, in clause 10(3)(d), to items subject to legal privilege in the context of domestic freezing orders, we definitely ought to have the same safeguards for overseas freezing orders. If I may pick out just one of the hon. Gentleman's amendments, that amendment in particular should commend itself to the Government. I hope that, even if the Minister cannot accept the other amendments in the group, she will accept that one, because it is quite apparent that there should be consistency between domestic and overseas freezing orders. If a legal professional privilege safeguard is already included in clause 10 for domestic freezing orders, the same safeguard should be included for overseas freezing orders.
We all share the views of the Law Society of Scotland—I am sure that the Law Society of England and Wales holds similar views—about the need for legal professional privilege to be written into the clauses for the protection of clients and the sanctity of the lawyer-client confidential relationship, and it would be of enormous help if the safeguards in all the hon. Gentleman's amendments were added to the Bill. I do not need to say more than that.
§ Annabelle EwingI support the amendments tabled by the hon. Member for Orkney and Shetland (Mr. Carmichael). The Law Society of Scotland assisted him, and I offer my thanks for the briefing it gave me.
The amendments deal with the key principle of Scots law on legal privilege. That important principle has been recognised by the European convention on human rights, yet, curiously, no account has been taken of it in the Bill. As a Scottish National party MP, I should add that that is not too surprising, because unfortunately the interests and integrity of Scots law is overridden by 43 Westminster time and again. In this period of consensuality, it is aided and abetted by the Labour-Liberal Democrat Scottish Executive in Edinburgh, who seem quite happy consistently to transfer the legislative competence of the Scottish Parliament to Westminster by way of Sewel motions.
§ Mr. CarmichaelCan the hon. Lady tell me how many Sewel motions the Scottish National party has opposed?
§ Annabelle EwingNo, not off the top of my head, but I shall let the hon. Gentleman know. There have been some 60 Sewel motions, despite the fact that we were told by one of the architects of the Scotland Bill—the late Donald Dewar—that they would be used only in exceptional circumstances. However, I do not want to take up time on that subject: I mention it in passing for the record. I am happy to lend my party's support for the substance of the amendments. I urge the Minister to listen carefully to what has been said, and to accept the amendments.
§ Caroline FlintI am afraid that I shall disappoint hon. Members. We do not believe that the amendments are necessary, so I cannot accept them. I hope that I can allay the concerns of hon. Members about the protection of legally privileged material.
There is extensive case law on legal professional privilege, which is a fundamental condition on which the administration of justice rests. In a recent House of Lords judgment, legal professional privilege was upheld as an attribute of the right to legal confidentiality that arises as a matter of substantive law. Legal advice cannot be obtained unless a client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to the client's prejudice. The judgment confirms that such a fundamental right cannot be overridden by general or ambiguous statutory words. An intention to override such rights must be expressly stated or appear by necessary implication. I suggest that nothing in the Bill explicitly or implicitly allows for the disclosure of items subject to legal professional privilege.
References to legal professional privilege in clauses 7 and 22 are unnecessary for the reasons I have given. Nothing in those clauses would override that fundamental right.
We consulted the Scottish Executive extensively on the drafting of the Bill, and on our response to the amendments to clause 26. We have good contacts at official level. I understand that the Law Society of Scotland has not approached the Scottish Executive about this matter, so we are confident that the Bill is correct.
§ Mr. CarmichaelThere is no reason for the Law Society of Scotland to approach the Scottish Executive on matters that are before this House. If approaches are to be made, they should be made to the Home Office or to the Scotland Office. An approach may have been made to the Scotland Office, but we cannot know that because no Scotland Office Minister is present. There is a need to include Scotland in the Bill, because failure to 44 do so will surely lead any judge seeking to construe this clause in Scotland to say that Parliament intended the provision to apply to England, Wales and Northern Ireland, but that if it had intended it to apply to Scotland it would have said so.
§ Caroline FlintI understand that the Scottish Law Society has not contacted anyone in my Department about these issues.
§ Annabelle Ewingrose—
§ Caroline FlintIf I may continue, I shall get to the crux of the issue and explain why I do not think that the amendment should be accepted.
I was talking about the amendment to clause 26. Search warrant procedure in Scotland differs from that in the rest of the United Kingdom, and the search warrant procedures in the Police and Criminal Evidence Act 1984 do not extend to Scotland. The common law principle of legal client confidentiality would apply to the execution of warrants granted under the Bill.
In certain circumstances it may be appropriate to have a definition in Scotland that equates to that used in the rest of the UK. That applies to some aspects of mutual legal assistance when requests for assistance are being sent to a variety of jurisdictions, as well as pertaining to international criminal investigations that may originate in both Scotland and England. Clause 10, which implements the new provisions relating to outgoing freezing orders, is one such instance. Clause 10(3)(d), which applies in Scotland, contains the term
items subject to legal privilege".The appropriate definition relating to Scotland is provided in clause 28(4).Let me stress again that the amendment is not required for Scotland, particularly in relation to clause 18, as it would be tautological. The clause gives the sheriff the same powers in relation to granting a warrant as he has in domestic cases under section 134 of the Criminal Procedure (Scotland) Act 1995. He is therefore already required to take into account any question of legal client confidentiality. The amendment would also put Scotland in a different position from the rest of the UK, where search warrant provisions do not include any provisions additional to or different from the provisions in PACE. A sheriff faced with a provision as amended would be entitled to believe that there was a different standard to be applied by him in consideration of the application. That is not the intention of the Bill.
Amendments Nos. 40, 41, 42 and 43 all relate to chapter 4, which concerns banking information. Customer information cannot relate to legally privileged material—that is, communications between a professional legal adviser and a client in connection with the giving of legal advice, or in contemplation or for the purposes of litigation. Customer information orders can be made only against financial institutions that are defined by reference to the Proceeds of Crime Act 2002, and only in relation to customer information. We do not see how the subject matter of the orders could constitute legally privileged material. All four clauses covered by the amendments relate to orders made against banks 45 and other financial institutions to obtain specified information. Any reference to legal professional privilege would be irrelevant in such circumstances.
For those reasons, I am afraid that we cannot accept any of the amendments.
§ Mr. CarmichaelWhen I was a solicitor practising in the courts I often found myself engaging in arguments or debates about questions of legal or statutory construction. One would ask oneself, "How on earth did Parliament not see that coming? Why on earth did it leave such an ambiguity?" Following my election I know that Parliament usually did see it coming, but that officials told the Minister that action was not necessary, and that was the end of the matter.
May I clarify the issue of the Law Society for Scotland? I am not sure what point the Minister was trying to make when she said that there had been no contact between the society and the Scottish Executive. We do not know about the Scotland Office, and the Minister tells us that she has heard nothing from her Department. I have here a briefing letter from Michael Clancy. I do not know whether the Minister is trying to suggest that the society does not support the amendments, but that is clearly not the case.
§ Caroline FlintI was not suggesting for a minute that the Law Society for Scotland had not lobbied the hon. Gentleman. I merely said that I understood that no such lobbying had taken place with the Scottish Executive or with officials from my Department dealing with the Bill.
§ Mr. CarmichaelThe fact remains that that is the society's view, and I hoped that it would be given rather more consideration than the Minister appears to have given it today.
The Minister was doing so well, but she seems to have lost the track. She has made me not angry, but a little sad and disappointed in her. However, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.