HL Deb 08 May 2001 vol 625 cc901-10

3.7 p.m.

Lord Bassam of Brighton

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee. —(Lord Bassam of Brighton.)

Lord Cope of Berkeley

My Lords, before we continue the Committee stage, can noble Lords be made aware of the basis on which they are to debate the Bill? The newspapers tell us that there was a meeting of the Cabinet yesterday which indicated that there would be an election. That affects the way in which our debates may proceed this afternoon. If the Government intend to go to the polls more or less a year early, having launched on a Session of Parliament with a very heavy legislative programme, which began late, I believe that noble Lords should know about it as soon as possible. I realise that if the noble Lord, Lord Bassam, replies he will probably tell us that he will write to us about it, but that is no good this afternoon. Perhaps the noble Lord the Captain of the Gentlemen-at-Arms will be kind enough to tell us whether he knows anything now; and, if not, when he will know something.

Lord Carter

My Lords, I have been advised by my colleagues to say that I shall write to the noble Lord. I am surprised that the noble Lord should ask this question. As he will be aware, this morning we had a meeting lasting about an hour and half in which we discussed planning for this Bill but he did not raise the point that he has just raised. The only information I have is that the Prime Minister's car was seen to drive into Buckingham Palace and out again. I believe that the windows were shaded. As soon as there is an announcement to the public about the possibility of an election I shall in the usual way interrupt the business, ask the House to resume and make a Statement regarding progress of business. But until there is a public announcement my hands are tied.

Lord Cope of Berkeley

My Lords, for the avoidance of doubt, I should make clear that at the start of the discussions this morning both sides agreed that they would take place on a contingency basis.

Lord Carter

My Lords, I have just replied on a contingency basis.

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 47 [Extension of existing disclosure powers]:

The Earl of Mar and Kellie moved Amendment No. 97A: Page 40, line 31, leave out "or may be

The noble Earl said: Amendment No. 97A, together with my other last minute amendments—for which I apologise to the Committee—were suggested by the Law Society of Scotland. I remind Members of the Committee that I am not a solicitor.

The Bill extends to Scotland. Although criminal justice is a devolved matter, the Bill is promoted for Scotland under the reserved power of this Parliament to make laws for Scotland.

Amendment No. 97A restricts the circumstances in which the disclosure of information can be extended to criminal investigations. It removes the opportunity for disclosure powers to be used where criminal proceedings may be initiated. The Bill could be read as permitting so-called "fishing trips" into sensitive information. That would be a mistake. The amendment removes such a possibility. Amendment No. 97B is similar in effect to Amendment No. 97A. It applies to disclosure when criminal proceedings have been initiated.

Amendment No. 101A upgrades from the negative to the affirmative procedure any order made under Clause 47(3). As drafted, Clause 47(3) will be subject to annulment. These regulations deal with matters of substance; that is, the extension of disclosure powers. They should be fully debated in Parliament prior to implementation under the affirmative procedure. I also suggest that the regulations should be placed before the Scottish Parliament for its approval before implementation.

Amendment No. 102A seeks to ensure that there is no right to require the disclosure of items subject to legal privilege within Clause 47. Article 8 of the European Convention on Human Rights enshrines the right to privacy. The law is usually eager to protect the relationship between a solicitor and his or her client. Provision is made for that within the doctrine of legal professional privilege. To protect that doctrine, provision should be made on the face of the Bill to ensure that Clause 47 does not extend to the disclosure of information subject to legal privilege.

Amendment No. 198A simply restricts the circumstances in which the disclosure of information will be permitted. It restricts that disclosure to actual criminal investigations. Amendment No. 108B similarly applies where criminal proceedings have been initiated. I beg to move.

3.15 p.m.

Lord Cope of Berkeley

Before we get into the detail of these particular amendments, we are in the awkward situation to which I previously alluded. That is a particular difficulty so far as concerns Part 2 of the Bill. The section contains a complicated matter with considerable detail. It was not discussed during the consideration of the Bill in another place. At Second Reading it was briefly referred to in some speeches.

We all want to help the police. There is no difference between the Government and the Opposition or any Member of the Committee in that desire. The Bill deals with difficult matters of crime. However, at the same time we are conscious of the spectre of "Big Brother" and of the tremendous opportunities offered by electronic communications and IT for the retention of information about everyone. There are all kinds of new analytical tools—data mining, friendship trees and so on—that can be used on such electronic data. Therefore, there are important issues in the Bill which have not been properly discussed.

Part 2 of the Bill deals with privacy of tax information. It also deals with legal privilege. The noble Earl drew attention to that matter. Some of his proposed amendments deal with that issue. It is an extremely important principle in our law in ensuring justice. The enacting of the Regulation of Investigatory Powers Act and the Government's difficulties with it since, provide an awful warning, as well as an overlap to these provisions. It is extremely important that these potential powers—given not only to the police but also to other authorities—are properly controlled and looked at. It is a difficult and delicate area in which to strike the right balance. Unless we have a proper opportunity to debate the Bill—not merely today, but on Report after the usual reflection, at Third Reading and after another place has had an opportunity to look at any amendments we might make to it—we would not want to see Part 2 of the Bill proceed.

I make that point in the hope that we can perhaps avoid any unnecessary discussion if we should be interrupted in our deliberations today and it becomes clear that we are not going to have a full debate on the matter. In principle, we are not against any powers of this kind. But we believe that they need serious reflection and thought from Parliament as well as from outside and from the affected bodies. Both legal interests and others have great reservations about this part of the Bill. Some of those concerns are reflected in the proposed amendments before us today. Therefore, we must think very carefully about the matter.

Lord McNally

We on these Benches share the concerns expressed by the noble Lord, Lord Cope. Indeed, they will be a reoccurring motif throughout the debate. The Home Office and, indeed, Law Officers are always coming to this House with a sense of urgency and righteousness that they need this or that power at once to fight the forces of evil. But the duty of the House and another place is to give due scrutiny to measures and to make sure that powers extended to the authorities are made to jump sufficiently high hurdles before they are granted.

In recent years there has been a tendency for insufficient scrutiny of such measures. I think of the emergency legislation after Omagh where the Home Office slipped in a whole series of powers along with the anti-terrorism measures. The House has a right to say that there should be proper scrutiny of such measures. Indeed, I hope that it is not just when the interests of lawyers and accountants are brought into question that the House should show its willingness to dig in its heels. If the Prime Minister had had his original wish of an election on 3rd May, the Bill would not have seen the light of day. It would not even have had the chance it has now of becoming law. Therefore, it is no use Ministers warning us of the dire consequences of not giving them their legislation within the next 24 hours. They or the successor government have ample time to bring these measures back to Parliament in the summer for them to have the scrutiny that such important measures deserve.

Lord Carlisle of Bucklow

I support what my noble friend Lord Cope has said. We are moving into a sensitive area of the Bill. While I am not suggesting that police should not have all the necessary powers to investigate crime, it is an area that must be approached with great care. The fact is that many authorities in this country hold in their records private, intimate and sensitive information about individuals. The rights of those authorities to disclose that information have to be looked at with great care. The noble and learned Lord the Attorney-General will be aware that the Joint Committee on Human Rights considered this aspect of the Bill. While it accepted the need for the powers to disclose, it expressed concern as to some of the details.

I should like to raise one important point. I may be raising it in ignorance more than anything else. We are widening the power to disclose to cover, for example, the purposes of any criminal investigation … which … may he carried out", and, the purpose of initiating or bringing to an end any such investigation". I am not clear whether there has to be a degree of satisfaction and whether the individual whose information is being requested is suspected of having committed a criminal offence. We fell that that provision should be looked at in the course of this debate. Surely it is right that there should be some reason to believe that the individual is involved if he is the person whose information is to be disclosed—information relating perhaps to his health, to his financial position, to his taxation position and many other matters.

Baroness Noakes

Many of the amendments in the group stand in my name. I shall not address them in detail at this stage as I should like to hear what the noble and learned Lord the Attorney-General has to say. A number of concerns have been expressed about this part of the Bill. They have been expressed by those who are involved in advising on tax matters. I refer to the Institute of Chartered Accountants, with which I am connected, and the Chartered Institute of Taxation. There are concerns about the possibility of information going overseas to territories that treat tax offences differently and where there are different consequences for taxpayers and their families. More fundamentally, there are concerns about the impact of the Bill on the compliance culture of the UK tax system. Our tax system is built on a high degree of trust between taxpayers and the Inland Revenue. The Bill as drafted would drive a coach and horses through that framework of trust, which has served the country well for a long period of time.

The Bill has also attracted the concerns of business interests such as the CBI. It is concerned about business information being disclosed abroad to the harm of UK businesses. Furthermore, concern was expressed by the Joint Committee on Human Rights, to which my noble friend Lord Carlisle referred. It concluded that there is a need to introduce adequate safeguards into the Bill.

Many of my amendments concerned the introduction of adequate safeguards. In particular, they centred on introducing a requirement for the consent of an appropriate judicial authority—a Crown Court judge or the equivalent in Scotland—and conditions such as a judge having to take into account whether or not a crime is reasonably expected to be committed and having to take into account some of the overseas dimensions.

I emphasise that serious concerns have been expressed on those points. That is not to say that those who are commenting have any desire to stop the proper fight against serious crime. All Members of the Committee share that desire and all those who have commented share that desire. What is so worrying is the wide and sweeping nature of the powers and the lack of checks and balances within the legislation. I shall not say any more about my amendments at this stage because I should like to hear what the noble and learned Lord the Attorney-General has to say.

Lord Phillips of Sudbury

I rise briefly to support the amendments spoken to by my noble friend Lord Mar and Kellie. In all the talk about legal privilege there is a danger—not among Members of the Committee but beyond these walls—of it being thought that the privilege attaches to the lawyer. The privilege is for the benefit of the client. Legal privilege is an ancient one and is the bedrock of a fair trial process. It surprises me that there is not protection for the traditional right of non-disclosure of legal communications in the Bill as it stands. Perhaps the noble and learned Lord the Attorney-General can assure us that it is already there. I am strongly in favour of amendments that support legal privilege.

Lord Campbell of Alloway

I support the amendments because, although the powers are sought probably correctly in the main, there must be some safeguards. There is no time adequately to discuss this matter. It is wholly unreasonable that in these circumstances we should be required to deal with the safeguards that are needed. I support the amendments on that ground.

3.30 p.m.

The Attorney-General (Lord Williams of Mostyn)

I sympathise with the tone of what has been said, not least because the regrouping has only just arrived in my hand. I therefore understand that fellow Members of the Committee will have difficulty in moving their amendments.

The noble Earl, Lord Mar and Kellie, moved Amendment No. 97A and spoke to Amendments Nos. 97B, 108A, 108B, 102A, 110A and 116A. However we get on today, it may he helpful if we at least attempt to remind ourselves of the amendments with which we are supposed to be dealing. I dare say that I have the amendment numbers wrong. The noble Earl has gone to two of the pre-existing groups, about which I make no complaint at all. We are all in the difficulty of having to deal with much wider groupings than we had originally intended.

I accept entirely what the noble Lord, Lord Cope of Berkeley, said. He wishes to help the police and other investigators—the Bill is not limited to the police—in legitimate inquiries. The noble Lord said that this is a delicate area. I accept that. The noble Lord, Lord McNally, said that Ministers sometimes come with a sense of urgency and righteousness. We are having a division of labour this afternoon. My noble friend Lord Bassam will do the urgency and I shall do the righteousness—if that is acceptable to the Committee.

The noble Lord, Lord Carlisle, asked specific questions about whether there should be a reasonable suspicion before the material may be disclosed. I accept what the noble Lord, Lord Campbell of Alloway, and the noble Baroness, Lady Noakes, have said. I understand entirely that the noble Baroness said that she would not go into the detail of her amendments because they formed what might be called a wider-sighted shot.

Perhaps I may deal with the specific amendments that have been moved so far. Those are the amendments tabled in the name of the noble Earl. Lord Mar and Kellie, which seek to leave out the words, "or may be", along with the grouping which is the offspring of the Law Society of Scotland, dealing with legal professional privilege, touched on by the noble Lords, Lord Carlisle of Bucklow and Lord Phillips of Sudbury.

Amendments Nos. 97A and 97B, and 108A and 108W seek to leave out the words "or may be" which noble Lords will find in the relevant subsections in Clauses 47 and 49 of the Bill. I underline the following words because they have been of great concern to all noble Lords who have spoken in this short debate. We believe that, subject to appropriate safeguards—I shall return to these because they are important—public authorities ought to be able to disclose information about wrongdoing to law enforcers. The appropriate safeguards are those within the provisions themselves, together with the very important restrictions put on disclosure provided by the Human Rights Act and the Data Protection Act, along with the Secretary of State's power to limit disclosure overseas. If carried—I know that they have been moved with good motive and with a view to securing a good outcome—these amendments would prevent the spontaneous disclosure in cases where information holders had information about criminal activity, but where criminal investigations or procedures had not been initiated.

Perhaps I may give an example, which does not intend in any way to diminish the point which has been made by a number of noble Lords. I understand that there has been an occasion where a drugs trafficker reported his earnings as arising from drug trafficking. Under the present law, the Revenue authorities were not able to inform the police of that matter. I hope that all noble Lords would agree that that is nonsensical, not least because the expertise, subtlety and sophistication of those who commit some of these extremely extensive crimes are significant. The reason why we seek to include the words "or may be" is that it should not be necessary to wait for the trigger of a criminal investigation before such matters can be disclosed. However, I state again that the appropriate safeguards to which I have referred are in place. I hope that I have dealt fully with the point put to me by the noble Earl.

On the question of legal privilege which, as I said earlier in my remarks, was touched on also by the noble Lord, Lord Phillips of Sudbury, Amendments Nos. 102A, 110A and 116A are not necessary because information which benefits from legal professional privilege could not be disclosed in a way which would undermine the privilege. Most compulsory powers to obtain information do not extend to material which is legally privileged. For that reason, it would be unusual for the disclosing authorities to possess information which is legally privileged. Where the compulsory powers do so extend, the information keeps its privileged nature, notwithstanding the compulsory acquisition. The extent of the privilege will therefore limit the extent to which the authority will be able to disclose the information to third parties. That is because the disclosing authority will have to refrain from acting in a way which would undermine the individual's legal professional privilege. I accept the analysis put forward by the noble Lord, Lord Phillips, as regards exactly whose property is the privilege.

All disclosing authorities under Schedule 1 and Clause 49 will be public authorities within the meaning of the Human Rights Act 1998. I understand that the only exception is Section 4(2) of the Electronic Communications Act 2000. My advice is that the Government do not intend to bring that into force. What are the consequences? It would mean that any disclosure that might be made would need to comply with the right to a fair trial by virtue of Article 6 of the European convention. I can say from my own experience in acting for the British Government in the case of Shah that this is not lightly overlooked by the European Court.

The voluntary disclosure of information to the authorities under the provisions of Schedule 1 or those contained in Clause 49 sometimes may amount to a waiver of the privilege. In those circumstances, the information would not be protected from disclosure. I have dealt with this in some detail because it is not the limited point put forward by the noble Earl. I have sought to reflect more widely the general concerns that have been raised. I repeat that I understand that those concerns deliberately have been raised in general terms because at present we are not dealing with specific points of detail.

This covers the amendments that have been moved so far, but I think that the noble Earl may have a question to put to me, to which I happily give way.

The Earl of Mar and Kellie

I am most grateful to the noble and learned Lord. I should like to clarify that I spoke to Amendments Nos. 101A and 102A, rather than to Amendments Nos. 110A and 116A. Amendment No. 101A concerns moving the order from the negative to the affirmative procedure and possibly also putting it before the Scottish Parliament.

Lord Williams of Mostyn

The noble Earl is quite right. Indeed, when gathering together my papers and probably because of my poor handwriting, I read "110A" for "101A".

Amendment No. 101A would not alter the principle that, once the Bill comes into force and thereby harmonises over 70 existing provisions covering statutory disclosure, the Government ought to be able to enact by statutory instrument similar provisions contained in subordinate legislation. We believe that the negative resolution procedure will be sufficient: in this case. I remind noble Lords of an extremely important point which is normally deployed against my submissions; namely, that the Delegated Powers and Deregulation Committee has examined the Bill. As I remember, it did not express reservations of any kind about the use of the negative procedure in relation to this power.

I apologise both to the Committee and to the noble Earl for having mistaken the group to which he was speaking. As I have said, the regrouping—as it may subsequently become—was not in my hands when he moved his amendment. I wanted to pay particular attention to the substance of the amendments.

I hope that I shall be able to continue to address noble Lords for a few moments longer. I was brought up in Wales where, as the noble Lord, Lord Thomas of Gresford, will underline, we were always taught to be extremely economic when making submissions of any kind. Indeed, I have often pointed out to the Chief Whip that, given the kind of remuneration one enjoys, one is not really entitled to look for more than 12½minutes.

Lord Phillips of Sudbury

I wonder whether it would help the noble and learned Lord if I were to put two questions to him. First, can he make it absolutely clear to the Committee that, in response to those amendments tabled by my noble friend Lord Mar and Kellie which stipulate that, Nothing in this section authorises the making of any disclosure of items subject to legal privilege", the noble and learned Lord is saying that they are absolutely unnecessary and that the common law rights of legal privilege will override the provisions set out in the Bill?

Secondly, the noble and learned Lord said that Schedule 1 contains a list of all those authorities which can seize documents subject to legal privilege, but that, having seized such information, the authorities could not make use of it. However, is it not the case that such information will be of use to the seizing authorities, quite separate from their passing it on to a third party?

Lord Williams of Mostyn

I do not agree with the noble Lord's second proposition. As he and I know from our respective work in practice, sometimes documents are seized which nevertheless can be subject to the successful assertion of legal privilege. In those circumstances, the judge would not rule such documents admissible; he would have recourse to Section 78 of the Police and Criminal Evidence Act; and, in any event, there are the Human Rights Act and Data Protection Act dimensions that I have indicated.

It also seems to me that, if a bad faith seizure is made, in the view of many judges it would not be admissible to allow the consequential information as opposed to the original document to be used. I am conscious of the fact that I should not answer at too great a length. Therefore, overcome by shame and submission, I am about to sit down.

The Earl of Mar and Kellie

I am most grateful to all Members of the Committee who have taken part in the debate and to all noble Lords who have suddenly taken an interest in my amendment. It has been a wide-ranging debate with wide-ranging answers which will certainly be of interest to the Law Society of Scotland. I would normally be able to say that I look forward to reading Hansard and considering the matter before the next stage, but I rather suspect that I shall not be able to do so. That being the case, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.