HL Deb 08 May 2001 vol 625 cc911-34

3.45 p.m.

House again in Committee on Clause 47.

[The CHAIRMAN OF COMMITTEES in the Chair.]

[Amendment No. 97B not moved.]

Lord Bassam of Brighton moved Amendment No. 98: Page 40, line 37, at end insert— (2A) In so far as subsection (2) has effect in relation to—

  1. (a) information that has been obtained under or by virtue of the provisions of Part 5 of the Fair Trading Act 1973 (c. 41) (mergers); or
  2. (b) information that has been obtained, for the purpose of facilitating the exercise by a relevant authority of functions under Part 5 of that Act, under or by virtue of the provisions of Part 8 of that Act,
that subsection shall have effect as if, in paragraphs (a) and (b), for "whether in the United Kingdom or elsewhere" there were substituted "in the United Kingdom".

The noble Lord said: I beg to move Amendment No. 98 formally.

Lord Cope of Berkeley

The Minister suggested that he wished to move Amendment No. 98 formally. Perhaps he will explain what this government amendment and related amendments seek to do—unless, of course, he is agreeing to my suggestion that, in view of the announcement made by the Government Chief Whip, it would be better not to move any further on Part 2 of the Bill and to leave the issue to subsequent legislation after the general election has taken place.

I should make it clear that, if the Government are re-elected, it will be a matter for them how they proceed. If my own party is elected to government, we shall look very carefully at these provisions. I do not think that we will bring them back in exactly the same form but as I made clear earlier, we will wish to pursue the point that lies behind them. However, we do not think that it is right to proceed at this stage.

Lord Bassam of Brighton

I am grateful for the noble Lord's intervention. I was struggling to find my notes.

Lord Carlisle of Bucklow

What is the purpose of introducing amendments to the Bill when we now know that it will go no further in the House in this Parliament?

Lord Bassam of Brighton

That is clearly a matter for the House to decide ultimately. I was going to respond to the view of the noble Lord, Lord Cope, on Part 2 of the Bill.

When we were having our discussions earlier in the day about how we might proceed in the event of the announcement that has just been made by the Chief Whip, we undertook at least to debate the clauses in a consolidated group rather than in the groups that had earlier been agreed through the usual channels. I was anticipating that we would proceed in that way and that my noble and learned friend Lord Williams of Mostyn would address all of the issues that have been tied together in the new consolidated group before us.

Lord Cope of Berkeley

Perhaps I should make it clear that large parts of the Bill are acceptable to us. We obviously discussed some amendments the other day and more are before us today but, in the circumstances, we shall not take up the time of the Committee by pressing some of these amendments.

I believe that a Bill based on this Bill will succeed. It is right that it should; it contains many provisions which we support. At the same time, there are a few elements in the Bill which we do not think should proceed in the circumstances because they have not had sufficient discussion. Part 2 of the Bill, with which we are now dealing, is exactly such an element.

There are two possible scenarios at the moment for dealing with Part 2. If the Government are content that Part 2 should be dropped from the Bill, it would nevertheless be helpful if Members of the Committee who have views on Part 2 take this opportunity to express them. That would enable whoever drafts the legislation after the election to know the points of concern and the Bill could be improved as required.

On the other hand, if the Government are persisting in their attempt to achieve Part 2, we shall have to press these amendments more resolutely and at greater length. If that is the case, so be it, but it would be helpful to know the Government's overall view of Part 2 so that we know how to conduct ourselves.

Lord Bassam of Brighton

Although we remain of the view that this is an important part of the legislation, the representations that were made to us in the event of an announcement being made this afternoon are being given active consideration. We have some sympathy with the view expressed by the noble Lord.

I believe that we should be well advised, if we proceed, to have a generalised debate picking out the particular points that Members of the Committee wish to make on Part 2. I suspect that at the end of the day the noble Lord may find that it is not necessary to press his amendments as forcefully as he might otherwise do. There is some value in hearing the views of the Committee on the various issues that have been "flagged up" through the amendments so that they are on the record and legislators in a future Parliament may take account of them.

In the mean time, I believe that we should move in the way that has been suggested. No doubt we can continue to have discussions outside this Chamber as to what will ultimately find its way into the finalised piece of legislation. As the noble Lord said, much of the Bill is uncontroversial and much of it will meet with ready agreement. It is perhaps worth adding that Part 2 was fully debated in another place; and we find the discussion that is taking place on this part of the legislation most helpful.

Lord McNally

I can understand the Minister's remark that some of the proposals are under "active consideration". However, I put it to him that the Government must not be too leisurely on these matters. If we are to spend a large part of today on Part 2 and if other parts of the Bill about which some of us feel equally strongly are not reached, or are reached at some unearthly hour tomorrow morning, we shall strongly take the view that any idea of parliamentary scrutiny has been totally thrown out of the window and we shall have to look to our own resources in those circumstances. Many will take the view that was assumed by the noble Lord, Lord Carlisle, that the Bill has not received sufficient parliamentary scrutiny and that it would be far better were it to be brought back as a whole later.

Lord Bassam of Brighton

I quite understand the noble Lord's argument. It is one to which I listened carefully outside this Chamber earlier. If we can provide the opportunity for some additional scrutiny on Part 2 this afternoon, albeit in a more truncated time-frame than might otherwise have been the case, the noble Lord may well find that there is a more receptive ear to the points made to us in private discussions earlier. I welcome the opportunity for us to move through the Bill and perhaps to continue discussions on the final format of this piece of legislation. That observation is made in the full intention of being as helpful as I possibly can.

Lord Cope of Berkeley

In that case, I suggest that the Minister or his noble and learned friend should introduce government Amendments Nos. 98 and 102 and explain what is happening.

Lord Williams of Mostyn

I am grateful to the noble Lord. Perhaps it may be helpful if I take up his invitation.

Originally, this grouping included Amendments No. 98 and 102. Both were tabled in the name of my noble friend Lord Bassam. Amendment No. 98 prevents the overseas disclosure of information collected in connection with the examination of merger proposals under the Fair Trading Act 1973. These amendments therefore carve out overseas disclosure of merger-related information from the harmonising and widening effects of Clause 47. They do not alter the effect of the Bill in relation to the other provisions in Schedule 1.

We have made it plain in the past that we want to improve co-operation with overseas competition authorities in tackling the threat of international cartels to the world economy. These amendments—here I hope to pick up the question raised by the noble Baroness, Lady Noakes—respond to concerns expressed by the CBI about the use of information voluntarily provided by companies to the OFT in connection with merger proposals. Businesses were concerned—I understand their concern—that confidential business information could be passed on to overseas authorities and be used against them. A consequence might be—I recognise that this is a reasonable thought to have—that companies might be less willing to co-operate with competition authorities when providing information on a voluntary basis.

In our judgment it would be rare for such material to contain information which might be of relevance to an investigation into a cartel and, therefore, potentially disclosable under the disclosure provisions for a criminal investigation or criminal proceedings.

These concerns were put forward persuasively and moderately. That is why we have acted to exclude the overseas disclosure from the disclosure provisions in the Bill. The CBI has welcomed the tabling of these amendments. It has some concerns about other aspects of information disclosure but has indicated its belief that those concerns can be met by the Office of Fair Trading issuing a notice on how it would operate the disclosure provisions. The CBI, again quite reasonably, wishes to have adequate consultation prior to the publication of the OFT notice. The Director-General of Fair Trading has agreed to do exactly that.

Therefore, the legislation as amended, if the Committee is content, will enable the UK to improve international co-operation in fighting crime but will at the same time safeguard the legitimate interests of United Kingdom business. That is a brief explanation of the thinking behind the two amendments. I commend them to the Committee.

The Earl of Northesk

While accepting that we are debating this part of the Bill in something of a limbo, I have one or two queries about the amendments. The noble and learned Lord will be aware that, in its supplementary memorandum to the Joint Committee on Human Rights, the Home Office stated, at paragraph 28(f): It is intended that disclosures of information via clause 47 will be regulated and controlled by procedural requirements to be drawn up by the relevant authorities and distributed to relevant members of staff". The Bill does not say as much, but I assume from this that to all intents and purposes it is the Government's intention that Clause 47 should operate under the regime of a form of code of practice. But, as the CBI has pointed out, if we wish to be certain that these provisions do not have an adverse effect on the competitiveness of UK businesses, It is essential that … there should be full prior consultation on this in line with the Government's commitment in November 2000 to a standard twelve week consultation period". Moreover, The guidance should take into account current developments and proposals in the OECD for a code of practice/convention on the subject of information exchange between enforcement authorities". I simply ask: what is the Government's response to these eminently sensible and desirable suggestions?

I have one further point to raise. The amendments apply only in the context of information relating to merger investigations. But, by definition—the noble and learned Lord referred to this fact—this is not the only area where the problem arises. Viewed logically, the Government's position is that they concede that, in the context of mergers, there are legitimate reasons as to why the disclosure regime should be limited to the United Kingdom. It is reasonable to suppose that that conclusion arises, at least in part, because of an acknowledgement of variations in the way in which different judicial processes operate country to country. That is all well and good. But why, therefore, have the Government not extended their concerns here, as logic demands, beyond the narrow focus of mergers?

4 p.m.

Lord Elton

In addressing merely the procedure, not the merits, of this amendment, I wonder whether the noble and learned Lord could clear my mind in one respect. I remain confused as to whether we are engaged in one of only two courses that I believe are open to us: the first is through a pastiche of a discussion on the whole of Part 2 to leave a sort of legacy to the next Parliament as to how a reintroduced Part 2 might be treated in that Parliament, which—I add in parenthesis—is often wasted labour; the other is to work in precise detail on a part of the Bill that is intended to be put into legislation in the next few hours, certainly the next few days. I deduced from what was said initially from the Dispatch Box that the former would be dealt with cursorily but that this amendment would be dealt with in detail. I should like to know the course upon which the Committee is now embarked.

Lord Williams of Mostyn

I believe my noble friend made it clear that the Government wish this Bill to be on the statute book; indeed, only a few moments ago, the noble Lord, Lord Cope of Berkeley, said that we could look for general support—I hope I paraphrase fairly—for the Bill. I hope I have this right, but I believe that the noble Lord said on behalf of the Opposition Front Bench that he would prefer Part 2 to be excluded from the Bill. Our intention, subject to any votes that might be taken or any view that Members of the Committee might care to express, is that we wish to continue with this legislation and see it through to the statute book. As I say, that process is subject to the wishes of the Committee and, indeed, those expressed at the Report stage, which may well be taken tomorrow.

I trust, therefore, that I have dealt sufficiently with the question posed by the noble Lord, Lord Elton. In answer to the points raised by the noble Earl, I sought to point out that the Director-General of the OFT has already undertaken that adequate consultations should take place. It seems to me that any relevant matter that the CBI wishes to raise in the OECD context, or any other, ought to be a matter for that quite careful and, I hope, dispassionate scrutiny. I stress two considerations, I think, fairly. The CBI has welcomed the tabling of these amendments. However, it has said, perfectly reasonably, that sometimes the devil is in the detail. The confederation wants to consult fully with the OFT, and the latter has responded in a way that I hope is agreeable to the Committee.

Baroness Carnegy of Lour

As I understand it Part 2 of the Bill applies to Scotland. As much of Part 2, as far as I can see, relates to matters that are devolved to the Scots Parliament, the latter must have asked the Government if Westminster would legislate for it in this matter. When the Government agreed to do so, can the noble and learned Lord say whether they explained to the Scottish Executive that they might deal with Part 2 in a cursory and truncated manner? Indeed, did the Executive agree to that? Presumably the Scottish Executive handed the matter to Westminster in order to get it dealt with properly, with all the wisdom that Westminster can demand.

Lord Williams of Mostyn

I am not sure that wisdom is entirely coincident with length; sometimes, in my experience, it is not. However, my experience of short wisdom is less than my experience of long wisdom, if I may put it that way. As the announcement of the Prime Minister's visit to Her Majesty was made only this afternoon, I doubt whether the Scottish Executive were informed of that. I simply have no means of knowing. Until 20 minutes to four o'clock this afternoon, I did not know what my noble friend the Chief Whip was going to say. However, in common with the noble Baroness, and others, I suppose that I may have had my reasoned suspicions.

We do not need to be cursory about this. I hope that I am answering as fully as I can, consistent with the discipline that we do believe that many of these matters are important. From what the noble Lord, Lord Cope, said, I take it that there are some aspects of Part 2 that are less contentious than others. It seems to me that we can be discriminating in the amount of time that we spend on each group. The noble Lord, Lord Cope, was good enough to say that many of the aspects of the Bill would have Opposition support, although I believe that he put it more optimistically; namely, that if he and his colleagues were in government after 7th June, they would introduce a very similar Bill.

I do not believe that I should be either inviting or encouraging Members of the Committee to do anything that they think is inappropriate. However, there are many answers that can be given to the amendments that have been tabled. I seek to put them forward with reference, for example, to the Human Rights Act, to Section 78 of the Police and Criminal Evidence Act 1984 and to the Data Protection Act.

Lord Cope of Berkeley

It seems that I did not make myself clear earlier. Perhaps I may do so now. Both in our discussions this morning and—I hoped—this afternoon, we said that we do not believe that any of Part 2 should proceed. The Bill contains many useful provisions, which can proceed despite the truncated debate. However, that does not apply to Part 2: it needs further and serious discussion.

Obviously we are proceeding with that discussion now; indeed, that is part of the process. But if the Government's conclusion is that they wish to press on with Part 2 today, we shall continue to debate it today and, presumably, tomorrow. In fact, it makes us wonder whether or not the Report stage should take place tomorrow. After all, that would mean a considerable foreshortening of the normal procedures laid down in the Companion. It would mean that we had inadequate time to discuss with those representing the very serious outside interests—the various professions that have been mentioned—which are involved in Part 2 of the Bill. We would be unable to discuss the Government's reactions with them and, thereby, try to frame new and better amendments in order to improve Part 2. Frankly, I do not consider that there will be time for us to do so between now and tomorrow.

If the Government persist in their desire to push on with Part 2 of the Bill, we shall have to reconsider our position most carefully in that respect. However, for the moment, we had better get on with the discussion. So far, we have discussed Amendments Nos. 98 and 102. It might be for the convenience of the Committee if we reverted to the sort of grouping that was originally intended. If the Government do not propose to agree to our suggestion to drop Part 2, I believe that we should revert to the original grouping. That would make for a neater debate. Let us, therefore, bring the debate on those amendments to a conclusion. We can then proceed to debate the group commencing with Amendment No. 99, and so on, as originally proposed.

Lord Renton

I should like to add a few brief words to what my noble friend Lord Cope has just said. It has always been the tradition in both Chambers that there should be a reasonable interval between the conclusion of the Committee stage and the commencement of the Report stage, especially on a Bill affecting the administration of justice or the freedom of the individual. That enables time to be given for the drafting of necessary amendments. On a Bill of such a complex nature, we really need time between the conclusion of the Committee stage and the start of the Report stage. I understand the unusual and unfortunate position that they are in, but, with deep respect to the Government, I really do not believe that it is feasible to do as they suggest.

Lord Williams of Mostyn

I take the noble Lord's point. However, that must be a matter for the House to determine. I shall be corrected if I am wrong, but I understood that it was a reasonable working possibility that we would start and finish the Report stage of the Bill tomorrow. Despite the grouping in which we are conceptually engaged, I spoke to Amendments Nos. 98 and 102 because they are government amendments. Although I am willing to assist the Committee in every circumstance, I thought that I ought to confine myself to not proposing opposition amendments. That is why I spoke to Amendments Nos. 98 and 102. If the noble Lord, Lord Cope of Berkeley, is suggesting that we should go back to the original groupings, that can be done. Any noble Lord is entitled to degroup or decouple the amendments so that they can be dealt with in the appropriate way.

It might be helpful to adjourn for a short time to ascertain, consistent with everyone's legitimate interests—they are not perfectly unanimous, but that does not derogate from any of them—how little we agree on, or how little we disagree on. At the moment I am not sure that the present discussion is doing the Committee an enormous service. However, I believe that the Question ought to be put on Amendments Nos. 98 and 102 which I have already discussed.

The Deputy Chairman of Committees (Lord Brougham and Vaux)

The Question is, That Amendment No. 98 be agreed to?

Lord Thomas of Gresford

I have not had my say on Amendment No. 98. I heard what the noble and learned Lord said about a moment for reflection. Are we to have that moment or are we to continue to debate the government amendments?

Lord Williams of Mostyn

I did not intend to be discourteous to the noble Lord. I did not realise that he wished to speak to Amendment No. 98. There seemed to be general agreement to my suggestion of a brief adjournment. That would at least permit us to agree on what we disagree about and to understand precisely what we are to do. I am trying to be the servant of the Committee. I recognise that arid discussions about who said what to whom in what circumstance and how far we shall progress tomorrow do not assist any of us in our discussion of what is agreed to be a very important part of an exceedingly important Bill. I am not sure what length of adjournment the Committee would think appropriate. We do not want to waste time, but would it be prudent to adjourn for perhaps 40 minutes?

Lord Thomas of Gresford

I noticed that certain discussions were taking place behind the arras to which my party was not in any way a party. That is not helpful. We do not know where we stand. If there are to be discussions, we wish to participate in them.

Lord Williams of Mostyn

Of course, that is understood. I believe that the discussions were an attempt to assist the Committee as I made the general suggestion. Is it acceptable to adjourn for 40 minutes to ascertain whether or not we might reach some agreement, or at least some defined disagreement?

Lord Cope of Berkeley

I believe that that would be helpful. Did the noble and learned Lord mention 40 minutes?

Lord Williams of Mostyn

I suggested an adjournment of 40 minutes.

Lord Cope of Berkeley

If that is acceptable to others, I consider that that is an appropriate thing to do. Then we can proceed in whatever way we decide, assuming that we reach agreement on that matter.

Lord Williams of Mostyn

I beg to move that the Committee stage stand adjourned until 4.55 p.m.

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

[The Sitting was suspended from 4.13 to 4.55 p.m.]

The Deputy Chairman of Committees

We were considering Amendment No. 98 when we adjourned the Committee.

Lord Williams of Mostyn

I am grateful for the patience of the Committee. I think that it was generally regarded as a good idea if we paused for a moment or two. I can tell the Committee that an amendment will be put clown to be voted on to delete Part 2 from the Bill. I have done that in deference to quite a number of noble Lords who put forward concerns which we thought were justified. Accordingly, as always, we rejoiced in being able to accede to the view of the Committee. In that spirit of amity, I beg leave to withdraw Amendment No. 98.

Amendment, by leave, withdrawn.

Baroness Noakes had given notice of her intent ion to move Amendment No. 99: Page 40, line 37, at end insert— (2A) Information shall not be disclosed by virtue of this section except with the consent of the appropriate judicial authority.

The noble Baroness said: I am saved from addressing the Committee at length on the large number of amendments in this group which I had put forward. Perhaps I may say how much I welcome the withdrawing of Part 2 which caused many organisations considerable concerns, as I outlined earlier.

We understand and welcome the main thrust of the provisions: to enable information to be exchanged to allow the better detection of organised and international crime. However, when the provisions come back to this House we shall seek significant safeguards. We shall consider in particular what the Joint Committee on Human Rights said on the kind of safeguards needed in the light of the wide powers which were drafted in that Bill. We shall seek powers with more safeguards or less extensive powers.

The Deputy Chairman of Committees

Is the noble Baroness moving Amendment No. 99?

Baroness Noakes

I shall come to that. I beg leave to withdraw Amendment No. 99. I reiterate my support for not taking forward Part 2.

[Amendment No. 99 not moved.]

[Amendments Nos. 100 to 102A not moved.]

Clause 47 agreed to.

Clause 48 [Restriction on disclosure of information for overseas purposes]:

[Amendment No. 103 had been withdrawn from the Marshalled List.]

[Amendments Nos. 104 to 108 not moved.]

Clause 48 agreed to.

Clause 49 [Disclosure of information held by tax authorities]:

[Amendments Nos. 108A to 110A not moved.]

Clause 49 agreed to.

[Amendments Nos. 111 to 114 not moved.]

Clause 50 [Interpretation of Part 2]:

[Amendments Nos. 115 to 116A not moved.]

Clause 50 agreed to.

Clause 51 [Additional powers of seizure from premises]:

5 p.m.

Baroness Buscombe moved Amendment No. 117: Page 45, line 7, at end insert "; and (f) in the case of material held in electronic form, whether it would be reasonably practicable for the material to be copied on those premises

The noble Baroness said: We now turn to Part 3, which relates to powers of seizure. I shall speak to Amendments Nos. 117, 118, 118A, 119, our 122ZA, as opposed to that of the noble Earl, Lord Mar and Kellie, and 122B.

Clauses 51 and 52 extend the powers of the police to seize items from premises and from persons or individuals when they are conducting a lawful search. They give the police and other law enforcement agencies power to remove material that may extend beyond that which they are entitled to seize from premises so that they can examine it elsewhere. That could mean that items subject to legal privilege could be removed from premises to be examined at a later date.

The clauses recognise that, with the development of information technology, investigators may wish to seize and forensically examine an entire disk or hard drive to determine when individual documents have been created, amended or deleted. They would result in the retention of all the material on the hard drive, including, possibly, some legally privileged material. The clauses also give the police and other law enforcement agencies the power to retain such material.

We are concerned about the inevitable erosion of the doctrine of legal privilege, which was referred to on earlier amendments this afternoon on Part 2. For example. the duty of confidentiality is an essential element in the relationship between a client and his solicitor or barrister. A client must be confident that he can disclose the whole truth to his legal adviser, who will respect his client's confidence. Furthermore, the privilege that attaches to communications between a solicitor or barrister and their client when there is a prospect of litigation is fundamental to the justice process. If there is any erosion of that doctrine of legal professional privilege, that relationship will be damaged and the potential for breakdown in the administration of justice will become apparent.

Amendment No. 122ZA is a drafting point. We believe that for Clause 51(4) to make sense, the words "to have" should be inserted.

Amendment No. 122B, which relates to Clause 54 and the examination and return of property seized under Clauses 51 and 52, would ensure that, Where the initial examination of the seized property has been conducted without the presence of—

  1. (a) the person from whom it was seized … or
  2. (b) a person with an interest in that property",
proper notice should be given as to why the examination was conducted, notwithstanding their absence, unless that person had been given prior opportunity to be present at the examination and had declined. The amendment would add credibility to the power of seizure and would aid transparency. I beg to move.

The Deputy Chairman of Committees

I advise the Committee that the amendment in the name of the noble Earl, Lord Mar and Kellie, numbered 122ZA on the supplementary list should be numbered 122YA.

The Earl of Mar and Kellie

I shall speak to the selection of amendments in my name relating to Scotland. As well as the five in this group, I shall speak to the amendments in the next group because they are purely consequential.

Amendment No. 118B would provide that there was no right to seize items subject to legal privilege. Those briefing me in Scotland are concerned about the erosion of legal professional privilege. The provisions may not be compliant with Article 8 of the European Convention on Human Rights. The 1992 case of Niemitz v Germany extended the definition of "home" to include a solicitor's office. That may be appropriate to the Bill.

Similarly, there is a danger of collateral privileged information from third parties being obtained. Legally privileged material should be excluded from the Bill. Amendment No. 119A would have a similar effect.

The intention of Amendment No. 122YA—or ZA—is to probe the meaning of, as soon as reasonably practicable". I have suggested that a limit of 48 hours would be sufficient. That is beyond argument.

Amendment No. 122C would delete Clause 55 and replace it with the single sentence: If, in contravention of sections 51(7) and 52(6), an item subject to legal privilege has been seized, it shall be returned forthwith:. That clear instruction requiring the immediate return of any items subject to legal privilege would considerably improve on the complicated formula in the existing clause. The other amendments are consequential on the attempt to repeal Clause 55.

Lord Williams of Mostyn

Perhaps I should read out exactly which amendments are in this group: Nos. 117, 118, 118A, 118B, 119, 119A, 122YA, 122ZA, 122B, 122C, 122D, 123A, 124A, 126A, 126B and 126C. I shall pause for a moment in case any of your Lordships wish to say anything.

In the absence of any further comment, I shall start with Amendment No. 117. As the noble Baroness, Lady Buscombe, said, it would add whether it was reasonably practicable for material held in electronic form to be copied on premises as a factor to be taken into account when considering whether the material could be sifted or analysed on the premises.

I still do not understand how the issue of whether electronic material can be copied on premises is relevant to deciding whether it should be removed from the premises for sifting or analysis. We accept the principle that copies should be seized if they are a satisfactory alternative to originals, but that principle can be covered in supporting guidance, which would emphasise that investigators should always give careful consideration to whether removing copies would be a satisfactory alternative to taking originals. Copies are equivalent to originals for the purposes of the proposals in Part 3. Clause 64(1) makes specific provision for that. We therefore do not think that Amendment No. 117 is necessary or consistent with the broader structure of the proposals.

Amendment No. 118 is part of a series concerning legally privileged material. Amendments Nos. 118 and 119 would prevent the disapplication of the provisions in the Police and Criminal Evidence Act 1984 in Clauses 51 and 52 respectively. Amendments Nos. 118B and 119A would have a similar effect.

We believe that this group of amendments, some of which, as has been said, are consequential, would undermine a key aspect of the proposals in Part 3. Legally privileged material can be seized lawfully under the new powers in Clauses 51 and 52 only if it is not reasonably practicable to separate it from other material to be seized; in other words, in all other circumstances, material which is accepted by investigators as being legally privileged cannot be seized.

Lord Avebury

Following on from what the noble Baroness said when she moved the amendment, I wonder whether the noble and learned Lord can clarify for me a matter concerning legally privileged material on a hard disk. If the police enter premises and find a hard disk containing all the material which a solicitor uses in the course of his business, they will be aware that some of it is legally privileged. However, short of going into every document on the hard disk, they will not be able to separate that which is legally privileged from the rest of the material which they may seize lawfully. Therefore, how can they operate in those circumstances without, perhaps inadvertently, taking away with them material which is legally privileged?

Lord Williams of Mostyn

As I know myself, in practice, such a situation does present difficulties, and I shall go on to explain the safeguards which may be required. I am grateful to the noble Lord for that inquiry. However, I have had helpful consultations with representatives of the Bar Council and the Law Society, who have recognised the responsibility that exists for the proper investigation, detection and prosecution of crime, and have, of course, recognised the fundamental value of which the noble Baroness spoke—that legally privileged material should be protected. I believe that that can be done and perhaps I may develop the point in a moment.

Amendments Nos. 118 and 119 are not workable because the subsections which they aim to remove are essential in that they disapply the normal legal barrier to seizing anything that a person has reasonable grounds to believe is legally privileged.

Amendments Nos. 118B, 119A and 122C and the consequential, relatively minor amendments are more comprehensive. However, their consequence would be to destroy the necessary scope to seize and retain legally privileged material in limited circumstances—I underline the following words—for strictly limited purposes.

If the new powers which we propose are to be fully effective in practice, they must allow for seizing items which are reasonably believed to be or to contain legally privileged material. The police may wish to seize a roomful of papers for examination, which the occupier—perhaps a solicitor or a prospective defendant—asserts contain a few items of legally privileged material on, to take the noble Lord's example, a hard disk, although he will not be able to identify the precise location. The police may seize a computer hard drive, which, they are told, contains legally privileged material but which, nevertheless, they need to seize.

If, either due to time constraints or the technology available, in either case it is not reasonably practicable for the police to separate the legally privileged material, it may be necessary to seize it as part of a larger bulk of material. However—I come directly to the noble Lord's point—once any necessary process of analysis, separation or sifting had been carried out off the premises, items identified as legally privileged would have to be returned. The only exception would be in relation to inextricably linked material. In order to permit the seizure of legally privileged material in that type of circumstance, it is necessary to disapply the provision on seizure found in Section 19(6) of the Police and Criminal Evidence Act.

The new powers are necessary in order to meet the problems highlighted in the Bramley case, which, as Members of the Committee know, has been the subject of a great deal of analysis and legal discussion. Criminals are becoming increasingly sophisticated and, increasingly, they use technology for criminal purposes. We have tried to carry out a fair balancing exercise in Part 3; in other words, to include safeguards in order to ensure that the rights of a person from whom material is seized are protected.

Several of those safeguards are relevant. There will, for the first time, be a statutory right to apply to a judicial authority for the return of legally privileged material, whether it is seized under the new powers or otherwise. That will enable disputes about legally privileged material to be dealt with judicially more quickly and effectively.

When an application is made for the return of legally privileged material seized under Part 3, an obligation to secure the material will arise once the application is made. Once secured, the material can be examined only with the consent of the person from whom it has been seized, thus giving him control. Where legally privileged material is retained on grounds of inextricable linkage, the use to which it can be put is very limited. It can be used only to facilitate the use in any investigation or proceedings of the material to which it is inextricably linked.

We do not wish—I say this as a matter of clear policy—to compromise the status of legally privileged material. We seek to introduce limited flexibilities which are necessary but subject to safeguards. If the amendments were carried, we would not achieve that aim.

A good deal of extremely serious crime is carried out by virtue of, or may be evidenced by, electronic records which, even 25 years ago, we would not have thought of as documents. I believe that the public have rights in the same way as do defendants or prospective defendants. I consider that the balance that we have here is scrupulous and proportionate.

I turn to Amendments Nos. 118A, 122ZA, 122B and 122YA. We do not believe that Amendment No. 118A is necessary. As can be seen from Clause 54(4), our proposals already make it clear that it is desirable to allow interested persons or their representatives to be present at an examination. That can certainly be expanded upon further in the guidance which will support implementation.

Where an application is made to the appropriate judicial authority for the return of legally privileged material—again, I hope that this covers the point raised by the noble Lord, Lord Avebury—the property must be secured pending agreement on examination procedures or examination under the direction of the judicial authority. That provides ample scope for proper supervision of the process. I do not believe that Amendment No. 122ZA improves the wording of Clause 54(4) and I do not consider that it serves any purpose.

With regard to Amendment No. 122B, I cannot support the introduction of a requirement for a written notice where an examination has been conducted in the absence of the relevant person. In most cases, the reasons are likely to be operational requirement or the continuing unavailability of the person concerned. We must strike the balance to which I alluded earlier.

Amendment No. 122YA would require the return of non-retainable material within 48 hours. Our proposed wording is, as soon as reasonably practicable". We shall emphasise in guidance that that implies return as soon as the whole examination has been completed unless there are very special factors which warrant delay; for example, the unavailability of the person to whom the material is to be returned or the need, in practice, to agree a convenient time to return a large volume of material. Some of the amounts of material stolen are very large. I do not see the benefit of setting a specific target such as 48 hours, which, on the large majority of occasions, I hope would be capable of being bettered. Therefore, for the reasons that I set out in a little detail, we are not able to support any of the amendments in this new, enlarged grouping.

5.15 p.m.

Lord Renton

Before we go any further, I wonder whether the Attorney-General will clarify one matter. Quite frankly, I am a little mystified by the early clauses in Part 3. Having read them, I wondered to what extent judicial authority would be required for any seizure—in relation to which there are very wide powers—granted under Clauses 51 and 52. When I looked through the rest of Part 3, I found Clause 60, which is entitled: Application to the appropriate judicial authority". That clause makes it clear that it is assumed that no judicial approval is required for the exercise of the powers in Clauses 51 and 52. Clause 60(2) states: Any person with a relevant interest in the seized property may apply to the appropriate judicial authority". It is not until after the seizure has taken place that judicial authority will ever be required. Bearing in mind the fact that very wide new powers of seizure will be given, it is rather strange that those powers can be exercised without any application for judicial power. Perhaps the Attorney-General would confirm that that is the case—the matter is basically relevant to our discussion of Part 3.

Lord Williams of Mostyn

As always, I am grateful to the noble Lord. The limit is made clear in Clause 51(1)(a), on page 44 of the Bill. That paragraph states that the person has to be "lawfully on any premises" and that if he, finds anything on those premises that he has reasonable grounds for believing may be or may contain something for which he is authorised to search", various consequences follow. I stress that he has to be lawfully on the premises and that he will need to execute his warrant.

The question of judicial authority is the second stage at which there is disagreement. The aggrieved party who has had his property seized—but only lawfully, on the basis of lawful presence and lawful authorisation—can then make the application.

Lord Avebury

I am most grateful to the noble and learned Lord for his explanation of what happens when the item seized is a hard disk that contains some material that is legally privileged. I am particularly grateful to him for his assurance that if legally privileged material is discovered, it will be returned as soon as practicable. That matter is covered in Clause 54(2)(c). However, that raises a further question: if the hard disk is found to contain legally privileged documents, how can they be separated from the rest of the hard disk? Physically that is not an option, although I suppose that the police could cut the documents from the hard disk and paste them on to a floppy disk or zip cartridge and return that to the owner. I am curious to establish how that part of the Attorney-General's assurance would be implemented if the data were entirely in electronic form. The only practicable approach seems to involve the normal method of cutting the document from the hard disk and pasting it on to some other electronic media. How else will it be possible to implement the assurance?

Lord Williams of Mostyn

So far as hard drives are concerned, the normal procedure would be to image the disk, not to seize the original. Our guidance is intended to deal with that. If the noble Lord wants to raise such questions—I know that he is extremely knowledgeable about such matters and more of an expert than many of us—we are more than happy to have his views on the construction of the guidance.

There are difficulties in this context and the public do have rights. I know from instances with which I have been concerned that sometimes the claim for legal privilege is a device. Sometimes—very rarely—the legal adviser will be colluding in crime. That should not give a legitimate cloak to what I stress is very serious crime indeed. One is not talking about the ordinary run of criminal cases that are tried in a magistrates' court or the Crown Court. In my experience, in some cases one is talking of international criminality of the grossest potential and actual damage to the public interest.

In this context we have tried—I stress that we have carefully consulted the Bar Council and the Law Society—to get a decent recognition of and proportionate compromise between two interests that appear to clash but which do not do so because legal professional privilege is essential for a civilised society. The investigatory powers that we are considering are intended to protect it.

Baroness Buscombe

I thank the noble and learned Lord the Attorney-General for his response. I hear what he said and I appreciate that the Government are endeavouring to seek the right balance that is, in their view, proportionate. It would not be of great assistance to the Committee if we were to discuss the matter further this evening. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 118 to 118B not moved.]

Clause 51 agreed to.

Schedule 2 agreed to.

Clause 52 [Additional powers of seizure from the person].

[Amendments Nos. 119 and 119A not moved.]

Clause 52 agreed to.

Clause 53 [Notice of exercise of power under s. 51 or 52]:

[Amendments Nos. 120 to 122 not moved.]

Clause 53 agreed to.

Clause 54 [Examination and return of property seized under s. 51 or 52]:

[Amendments No. 122 YA to 122B not moved.]

Clause 54 agreed to.

Clause 55 [Obligation to return items subject to legal privilege]:

[Amendment No. 122C not moved.]

Clause 55 agreed to.

Clause 56 agreed to.

Clause 57 [Property seized by constables etc.]:

[Amendment No. 122D not moved.]

Clause 57 agreed to.

Clauses 58 and 59 agreed to.

Clause 60 [Application to the appropriate judicial authority]:

Baroness Buscombe moved Amendment No. 123: Page 52, line 39, at end insert— () An application made under subsection (2) shall be heard by the appropriate judicial authority within 48 hours of it being made.

The noble Baroness said: Amendment No.123, together with Amendment No.123A, relates to Clause 60, which deals with remedies and safeguards in the event that property is seized in the exercise of a relevant power of seizure. We are supportive of the clause in principle but, as it is currently drafted. there is no time frame within which such an application must be heard for the return of the property. As such, there is no incentive for the appropriate judicial authority to move quickly or, indeed, at any pace at all. It should be remembered that some of the material may be legally privileged. In addition, it is possible that a person's livelihood is on hold pending the recovery of seized material. If it is not therefore necessary or proper to retain the material to further an investigation, the property should in our view be returned as expediently as possible. I beg to move.

Lord Williams of Mostyn

We agree that applications to the appropriate judicial authority for the return of seized property should be heard as quickly as possible. We believe that that is essentially a matter for Crown Court rules rather than for legislation.

It is envisaged that when an application is made the parties may want to delay the hearing while they try to agree either between themselves or—this is increasingly common now, as the noble Baroness will know—through an independent counsel acting as a "third party" arbitrator. When the material is secured, that will depend on the consent of the person from whom the material was seized. When the appropriate judicial authority orders the return of the property, the implication of the current proposal in Clause 60 is that the return should take place immediately or as soon as is reasonably practicable. I believe that that is right—one does not need to give a judicial authority an extra level of discretion to specify a reasonable time, as the amendments would do.

I cannot therefore support the amendments. However, in answer to the concerns of the noble Baroness, I undertake to consider whether further guidance is needed in the code of practice to emphasise and underline the swift return of property seized. The time limits for hearing applications—the other aspect of the noble Baroness's concerns—will be considered as part of the Crown Court rules which will be promulgated to support this legislation. I hope that that is helpful.

Baroness Buscombe

I thank the noble and learned Lord for his response to the amendment and appreciate his undertaking to consider whether or not further guidance is required. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.30 p.m.

[Amendments Nos. 123A and 124 not moved.]

Clause 60 agreed to.

Clause 61 [Cases where duty to secure arises]:

[Amendment No. 124A not moved.]

Clause 61 agreed to.

Clause 62 [The duty to secure]:

[Amendments Nos. 125 and 126 not moved.]

Clause 62 agreed to.

Clause 63 [Use of inextricably linked property]:

[Amendment No. 126A not moved.]

Clause 63 agreed to.

Clauses 64 to 68 agreed to.

Clause 69 [Application to Scotland]:

[Amendments Nos. 126E and 126C not moved.]

Clause 69 agreed to.

Clause 70 [Application to powers designated by order]:

Lord Williams of Mostyn moved Amendment No. 127: Page 63, line 33, leave out "modify any enactment that makes" and insert "make any modification of any enactment making

The noble and learned Lord said: This group consists of government Amendments Nos. 127 to 129 and opposition Amendments Nos. 130 and 131.

The purpose of Part III is to give additional powers of seizure to the police. The existing powers of seizure to which the new powers apply are listed in Schedule 2 to the Bill.

Clause 70(1)(a) gives an order-making power which enables other powers to be added to the list in Schedule 2. Subsection (1)(b) provides that amendments can be made to Part III if they are consequential to the addition of another power to Schedule 2. Subsection (1)(c) gives the power to amend by order the actual piece of legislation being added to Schedule 2. This is necessary because a consequential amendment to that underlying piece of legislation may be needed to ensure that it works properly.

As originally drafted, subsection (1)(c) did not provide that these amendments must be consequential and any amendment to the piece of legislation being added to Schedule 2 could have been made. We are grateful, not for the first time, to the Delegated Powers and Deregulation Committee for drawing that to our attention. We did not intend the provision to be this wide and we fully accept the committee's recommendation on that point. Therefore, if carried, our amendment would insert into subsection (1)(c) a qualification restricting such amendments to ones which the Secretary of State considers appropriate in consequence of the addition of the new power to Schedule 2.

The amendment to subsection (4) is needed as our amendment to subsection (1)(c) no longer contains the word, "modify".

I accept the principle behind the opposition amendments to Clause 70. I am told that they are not technically perfect. Apart from that, I believe that we have met the point by putting forward amendments which are technically better drafted and, on that basis, since we have accommodated the point although not the precise wording, I invite support for the government amendments and ask the Opposition not to move their amendments. I beg to move.

Lord Renton

When one sees the Secretary of State given power to alter an enactment—here he is given power to alter a number of complex provisions embodying new law—one wonders whether that is sound and in order. However, subsection (3) states that the power given to the Secretary of State shall be exercised by statutory instrument and that no order shall be made unless a draft has been laid before Parliament. That means that positive approval by Parliament is needed, and that puts it in order.

These are the sorts of provision that the excellent committee on delegated powers examines and it has given them clear passing. The committee says that the provisions appear to have been drafted carefully in the light of the requirements of the ECHR. Our conscience, therefore, can be more or less satisfied, although one should always look at the possibility of a Henry VIII clause.

On Question, amendment agreed to.

The Deputy Chairman of Committees (Lord Ampthill)

I must inform the Committee that I cannot call Amendment No. 128.

[Amendments Nos. 128 and 129 not moved.]

Lord Williams of Mostyn moved Amendment No. 130: Page 63, line 35, at end insert "which the Secretary of State considers appropriate in consequence of any provision made by virtue of that paragraph

On Question, amendment agreed to.

[Amendment No. 130A not moved.]

Lord Williams of Mostyn moved Amendment No. 131: Page 64, leave out line 2.

On Question, amendment agreed to.

Clause 70, as amended, agreed to.

Clause 71 agreed to.

Schedule 3 agreed to.

Clauses 72 and 73 agreed to.

Clause 74 [Use of video and telephone links for decisions about detention]:

Lord Cope of Berkeley moved Amendment No. 131A: Page 65, line 8, after "inspector" insert "(who is present at another police station)

The noble Lord said: The provisions grouped with Amendment No. 131 A involve Clauses 74 and 75 and relate to decisions to be made about detention, in particular to extend the detention of somebody who has not yet been charged. A large part of the reason for tabling these amendments and querying the provision is because of the "overstretch" of the inspector ranks of the police force.

Inspectors are being given additional duties, in particular by Clause 75, and will be allowed in the future to conduct some of their present duties, such as extending detention, over the telephone and through video conferencing. The inspector ranks are extremely concerned about that because of the huge reduction in the numbers of inspectors. That process started with the Sheehy report since when a considerable drop in the numbers of inspectors, chief inspectors and indeed superintendents above them has taken place. That means it is more difficult for them to take these decisions in the way they would wish.

The other day one of the leading members of the Inspectors' Central Committee said that the video reviews are another measure to compensate for the lack of numbers in those ranks. The members of the service have always been proud of the independent element that they are able to bring into the system of justice, but a video review of detention appears to make it much more doubtful whether such good decisions can be made without their being present and listening to the arguments made, including those made by the detained individual. Modern communications may be wonderful but if reviews are to be carried out by looking at a television screen or via a telephone link that could cause a downgrading in the independent element of the inspection.

In one sense, matters are made easier. The inspectors would not have to drive to a different police station in order to make a decision about a detention, but in another sense there is a danger of downgrading the authority with which such decisions are made. That is a matter of concern. I would be grateful if the Minister could comment on the reasons for doing this. I beg to move.

Lord Renton

I do not believe that we can possibly object to the strengthening, as the Government propose, of the 1984 Act. In my opinion, it was an adventurous Act that dealt with the technical developments that had taken place in our society and indeed all over the world. The Government should be grateful to my noble friend Lord Cope for the, further strengthening of the law that he has proposed in his amendments. I shall not trouble your Lordships by taking up time by going through them in detail, but they appear to me to be helpful and to strengthen the Bill, which I should have thought the Government would welcome.

Lord Bassam of Brighton

All these amendments refer to Clause, 74 which introduces arrangements for carrying out reviews of the continuing need for detention by telephone and provides for the Secretary of State to make regulations.

The purpose of Clause 74(2) is to allow certain reviews, as the noble Lord, Lord Cope, has said, to be carried out by telephone. The reviews in question must be carried out by an officer of at least the rank of inspector and must normally take place no later than six hours after detention was first authorised and then at intervals of nine hours. Detention for longer than 24 hours requires the authority of an officer of at least superintendent rank and it is not proposed to make the telephone option available for these superintendents reviews.

The purpose of the proposed provisions is to enable reviews of detention and other custody-related decisions to be carried out using video-conferencing and to allow for certain reviews to be conducted over the telephone in extreme circumstances. I need to stress that point. In our view, safeguards and supporting procedures are already included and the proposed amendments would detract from the flexibility and workability of the arrangements. That also is an important element of what we are saying to the House this afternoon.

Reviews of detention should only be carried out by telephone in extreme circumstances and, where that is the case, it does not seem sensible to restrict the option to a reviewing officer who is present at another police station as Amendment No. 131A would require. If a reviewing officer is prevented from attending the police station where the detainee is held—it may be that he has been delayed by transport difficulties or by poor adverse weather combined with transport difficulties or by some other circumstances beyond his control—he should be able to make use of mobile telephone facilities to conduct the review.

Nor do I believe that we should make the changes suggested in Amendments Nos. 131 C and 131 F. Where any review or other decision-making process is carried out by telephone or video-conferencing, there is provision for any record required in connection with it to be made by another officer who is present at the police station with the detainee. There is no requirement for reviews carried out at police stations in the standard manner to be tape or video recorded and no obvious reason to introduce such a requirement where those processes take place remotely.

As regards Amendment No. 131E, we do not want to restrict the scope for carrying out decisions about detention by video-conferencing to circumstances where it would not be practicable for an officer present at the station to perform the relevant functions. PACE offers scope for any officer to act as the custody officer where circumstances demand it, but the issue here concerns ensuring high-quality decision making and access to specialist expertise by enabling certain decisions to be taken remotely.

There may indeed be an officer present at the station who could adopt the custody officer role and, for example, make decisions about charging and bail. However, the proposed arrangements allow the alternative of contacting a skilled and experienced custody officer via video-conferencing who could significantly enhance the process by bringing his fall knowledge and expertise to bear.

Amendments Nos. 131B and 13ID suggest restricting telephone reviews and all decision making via video-conferencing to circumstances where secure communications are available. That would place unrealistic restraints on those options. Sophisticated technical arrangements are needed to ensure that such connections are completely secure and that the contents of the relevant discussions are unlikely to be such as to demand complete security. Clearly there may be instances where security is a more pressing issue, but we would argue that those need to be judged and assessed on an individual basis.

In general terms, I can certainly understand concerns being expressed about the concept of custody-related decisions being taken remotely. All of us want to ensure that such decisions are fair, effective and soundly based. However, I am sure that what is being proposed will tend strongly to improve the quality of such decisions.

As I have already explained, our clear intention is that reviews by telephone will be rare exceptions. They are not a fully satisfactory substitute for reviews where the officer can see and hear the person concerned, but they are very much better than dispensing with a review altogether or introducing a significant delay into the review process.

I recognise that dealing with a range of custody-related decisions using video-conferencing is breaking new ground and that is why we are committed to thorough trials before considering the general application of such provisions. However, I believe that it would be wrong to ignore the scope for developing technology to deliver real improvements to the quality of the relevant decision-making processes. Custody work is increasingly recognised as an important specialism within policing and the provision of a direct link to an expert practitioner can only help to ensure that the right decisions are made. Video links are proving their effectiveness across an ever wider range of activities and we should not lose the opportunity to test them in the way that is proposed.

I understand the motivation for the various amendments that are suggested, but I do not believe that they are necessary or, in these circumstance, at all helpful. The proposed provisions are a sound and carefully limited basis on which to test the new concept. We are prepared to revisit them if trials highlight issues of principle or substance. For those reasons I hope that the noble Lord will feel able to withdraw his amendment.

Lord Cope of Berkeley

It is most unsatisfactory to have to consider this legislation at such speed when the provisions have not been considered at all in another place just because the Prime Minister wants to hold a general election a year early. However, that is the case. In the circumstances, I shall not pursue the detailed points in the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 131B to 131F not moved.]

Clause 74 agreed to.

Clause 75 agreed to.

Lord Carter

I beg to move that the House do now resume.

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

House resumed.