Draft Financial Investigations (Northern Ireland) Order 2001

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Mr. John M. Taylor (Solihull): I should like to be clear that the Minister said a county court judge, not a Crown court judge.

Mr. Ingram: I did say a county court judge, which is the right level.

A further protection is that the information sought under a general solicitor circular is limited only to what is necessary to establish an audit trail. If the investigator requires more detailed information, he must apply to the court, which can determine any issues of legal professional privilege. Those are valuable safeguards.

Although we recognise the principles of solicitor-client confidentiality and legal professional privilege, the rules on client confidentiality and privilege do not extend to protect items held with the intention of furthering a criminal purpose. The duty of confidentiality is not absolute. Solicitors throughout the United Kingdom are already obliged to report suspicious transactions to the police or to the National Criminal Intelligence Service.

We will work closely with the Law Society and other key professionals, such as the Bankers Association, to ensure that their experience and expertise are properly reflected in the detailed implementation of these measures.

That leads to two other points made during consultation: the need for full discussions with affected parties and the need for changes to be made to the existing code of practice for financial investigators. We agree that both are needed. My officials have already had a useful first meeting with the Law Society, and we will consult fully with all interested parties on a revised code of practice to reflect the new procedures that the draft order will require.

As a result of the representations received, only one relatively minor change has been made to the draft order from the proposal published last November, in article 3(5). In response to a suggestion from the Northern Ireland Human Rights Commission, we have made the definition of a senior officer of Her Majesty's Customs and Excise more explicit. It will now be for the commissioners of Customs and Excise to designate the customs officer grade that is equivalent to the rank of police superintendent.

The draft order will provide the police and Customs and Excise in Northern Ireland with the new powers they need to help make essential inroads into the confiscation of the proceeds of crime. The draft order is a tough but measured response to a very real threat to our society, and I commend it to the Committee.

4.46 pm

Mr. John M. Taylor (Solihull): Mr. Gale, I am pleased that you are presiding over our proceedings this afternoon.

The Committee knows that the Conservative Opposition have tried to be as bipartisan as circumstances allow, because the issues are so serious in that part of our country known as Northern Ireland. However, I want to mark a certain reservation about the measure, and do not do so lightly, in any sense of that word. My reservation is based not least on my reading of the deliberations of the ad hoc Committee of the Northern Ireland Assembly which, if I may say so without being patronising, seems to have done a thorough, admirable job and is an example of how to conduct such an inquiry. The Committee had its misgivings and so have I. Of course, I accept the Minister's good faith, and I also accept wholeheartedly that he is a trenchant opponent of crime and criminals. His attitude is entirely commendable—he wants to get at them and to get after them, and to stop them from profiting from other people's misery.

I may have to reserve my position. Opposition Members are numerically incapable of stopping the measure's progress, and it will be unnecessary for me to divide the Committee, but my words will be on the record. I am a solicitor, although I have not practised since 1988, and I do not hold a practising certificate. My favourite leg pull, with which I have wearied this and other Committees, is that far from being a defender of the profession of solicitor, I was a scourge of it when I was in the Lord Chancellor's Department and I described my cessation of practice as having ``gone straight''.

The Committee should discount any possibility that ``John Taylor would agree with the Northern Ireland Law Society, wouldn't he? He is one of them and the culture embraces them all,'' although there may be an element of truth in it. Once one has been trained as a solicitor and practised for many years, there is a kind of mindset and an awareness of the precious bond between a solicitor and his client. That is a matter of general knowledge: one does not have to have done any legal studies to understand that.

From time to time, reference is made in the Northern Ireland Assembly to the distinction between contentious and non-contentious business in a solicitor's practice. Indeed, Mr. David Capper, senior lecturer at the school of law of Queen's university, Belfast, exercised himself over that distinction in his written submission. I sincerely hope that the distinction is not important, because it is an almost impossible one. There is no boundary. There is no zero line on the ground as there is at Greenwich. In my experience, it is perfectly possible for a matter that could be described as contentious to be resolved with the greatest equanimity and good feeling. Moreover, something that is described as non-contentious can become extremely contentious.

Within the broad definition, conveyancing would be regarded as non-contentious, yet I have known conveyancing transactions turn into bitter fights. They do not have to involve high hedges, which has been another of my preoccupations in the House. I am quite deliberately putting on the record my hope that not too many cases rest on the distinction between contentious and non-contentious business, because it is a false distinction. At the risk of repeating myself, the apparently contentious can be resolved amicably and the apparently non-contentious can flare up into the most fearful fight.

I remember hearing one cynical friend complain, when we were both young solicitors, that he was not enjoying his time in the conveyancing department because almost every file that he opened ended up in the litigation department. That cannot have been very good for the reputation of his firm, but it is with some distaste that I recognise it to be entirely possible.

I do not wish to trespass on eternity. My remarks will have some definition and finality in just a moment. I also want to say that my anxieties are not merely those of a Conservative spokesman, although I cannot disavow that role. They are more fundamental. They are the anxieties of an elected Member of Parliament concerned with the way that we legislate and make the law in our country. That is perhaps my first point of unease. We are here making law purely in Northern Ireland.

A number of people who gave evidence to the Northern Ireland Assembly asked that if the Government are to make this general to the United Kingdom pretty soon, they should say so. I recognise that, as the Minister has explained in other contexts, special treatment is sometimes needed for Northern Ireland. I will not dispute that, but it is always better if the law in the Province is the same as the law in Britain. I am not too happy that the authority to set these procedures in motion should be in the hands of a county court judge. I am not quite sure of the status, seniority and rank of a county court judge in Northern Ireland. It may be senior to a county court judge in England. I am prepared to learn about that. I should like this matter to be dealt with at a higher level. I should like a derogation of presumed rights to be at the highest possible level. I should have preferred that the body that represents the most senior judges in Northern Ireland had this exclusive right.

David Capper, a senior lecturer at Queen's university of Belfast, has expressed anxiety about whether the proposals infringe article 8 of the European convention on human rights.

I shall conclude with the evidence of the Northern Ireland Law Society, given to the Northern Ireland Assembly. Its president rightly said:

    ``I should like to begin by making one point clear. The Law Society does not condone the activities of criminals, nor do we have any interest in affording protection to drug barons, terrorists or racketeers. We do understand and appreciate the objectives and sentiments of the proposals.''

So do I. He continued:

    ``These protections have not been devised by accident or by lawyers for lawyers. They are characteristic of all developed democratic legal systems over many centuries. The issue is not encroachment on lawyers' territory. It is the right which each of you have to consult your legal adviser about your personal business confident in the knowledge that the privacy of that consultation will be respected and will not lightly or arbitrarily be overridden.''

Those remarks are consistent with the Minister's statement that solicitor-client privilege is not absolute. I recognise that. The Minister said it, and he is right. The Northern Ireland Law Society knows it, too.

The Law Society also said that this measure should ideally be United Kingdom law, and it asked the Government to make it clear that it will be. Towards the end of its evidence, it made a similar point to that of Mr. David Capper, and said that

    ``the Government's assertion that the proposed legislation complies in all respects with the terms of the European Convention on Human Rights may not be well-founded''.

That question remains in the air.

Finally, and this point worries me most, it said that

    ``the effect of the amendments to the 1996 Order now proposed would appear to be to make client information available to the financial investigator retrospectively. That is, on commencement of the proposed Order, it would be possible for an inquiry to be raised about a transaction which was entered into by an individual prior to the introduction of this legislation on the basis that his or her confidence with his or her solicitor would be respected and preserved by law.''

That status could be overturned retrospectively—not a happy prospect.

I hope that I have done justice to my sincere reservations about the proposals. It would be easy to have let the afternoon pass by saying, ``Let us get after the drug barons and the wicked profiteers'', but if I had done so, I would have failed in my duty. Serious reservations remain about the proposals, and they come from men much cleverer and more learned than I. I have offered a humble echo of serious misgivings. I hope that the Government will work further on the proposals before the legislation is passed. As I said at the outset, I reserve my position. I shall not oppose the Government, but I shall withhold my support.

4.58 pm

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