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Norman Baker: I do not think that this is political polemic. There may be disagreement, but this is not polemic. We are discussing an important issue, and I had difficulty with the Minister's response.
Will the hon. Member for Beaconsfield give me guidance? There is a suggestion that the hon. Member for Redcar (Vera Baird) and I, as members of the Joint Committee on Human Rights, appear to have no function. When the Bill comes before us, we are not expected to examine each clause and decide whether it is compatible, but say, ''The Human Rights Act exists. We can confirm that it still exists, so we'll tick off the Bill and go to the next item on the agenda.'' Every Bill has to be self-contained. That is what the Joint Committee does: it examines each Bill's provisions, it does not automatically say, ''Another piece of legislation exists, and therefore it is okay.''
Mr. Grieve: I agree entirely with the hon. Gentleman. The Joint Committee will clearly play an important role in how our legislation develops. Parliament should not abdicate responsibility for what it wants to a piece of legislation that is subject to judicial interpretation, which by its very nature—and I do not criticise it—is quite nebulous.
I do not want to take up any more of the Committee's time. I shall press the amendment to a Division as a matter of principle. I am not satisfied that there are no good advantages to be gained by incorporating the provision, which was included in previous legislation, into the Bill.
Question put, That the amendment be made:—
The Committee divided: Ayes 8, Noes 13.
Division No. 32]
AYES
Baker, Norman
Brooke, Annette
Field, Mr. Mark
Grieve, Mr. Dominic
Hawkins, Mr. Nick
Johnson, Mr. Boris
Tredinnick, Mr. David
Wilshire, Mr. David
NOES
Ainsworth, Mr. Bob
Baird, Vera
David, Mr. Wayne
Davidson, Mr. Ian
Foulkes, Mr. George
Harris, Mr. Tom
Hesford, Stephen
Lazarowicz, Mr. Mark
Lucas, Ian
McGuire, Mrs. Anne
Stinchcombe, Mr. Paul
Stoate, Dr. Howard
Watson, Mr. Tom
Question accordingly negatived.
Clause 335 ordered to stand part of the Bill.
Clause 336 ordered to stand part of the Bill.
Column Number: 1213 Clause 337
Further provisions
Mr. Ainsworth: I beg to move amendment No. 290, in page 195, line 2, leave out 'may' and insert 'does'.
The Chairman: With this it will be convenient to take Government amendments Nos. 474 and 529.
Mr. Ainsworth: These are purely drafting amendments. They have no substantive effect. My aim is simply to replace the word ''may'' with ''does'' in clause 337(1) and (4) and clause 370(1). Amendments Nos. 290 and 474 bring the wording of the clause in line with that used in respect of the other powers in clauses 343, 350, 357 and 363. It would be helpful to be consistent within part 8. Amendment No. 529 makes the same change to clause 370, the corresponding Scottish clause.
Mr. Grieve: I am mildly intrigued. I remember that in an earlier sitting we discussed ''must not'' and ''may not''. We emphasised that ''may not'' means ''cannot''. I wonder why the word ''does'' has suddenly crept in. For my edification, will the Minister enlighten me as to why ''may'' should be replaced?
Mr. Ainsworth: I cannot recall that we had a huge controversy over the words that the hon. Gentleman mentions. As I have said, I do not think that my proposals make any substantive change other than providing consistency in part 8.
Vera Baird: If the word ''may'' is removed from line 2 and replaced by ''does'', will not the provision read
''except that a lawyer does be required to produce material''?
Mr. Grieve: Line 2 states that a
''production order may not require''.
It will now read ''does'', not ''may''. Line 1 is the title of the clause.
Vera Baird: I see. Thank you.
Amendment agreed to.
Mr. Grieve: I beg to move amendment No. 550, in page 195, line 3, leave out from first 'material' to end of line 4.
The Chairman: With this it will be convenient to take the following amendments: No. 555, in clause 343, page 199, line 13, leave out from first 'material' to end of line 14.
No. 560, in clause 350, page 202, line 27, leave out from 'document' to end of line 28.
12 noon
Mr. Grieve: I am sorry to return to the issue, but I was a little puzzled by the specific exception in respect of legal professional privilege that the Government felt the need to incorporate under the clause, which states:
''A production order does not require a person to produce, or give access to, privileged material, except that a lawyer may be required to produce material containing only the name and address of a client of his.''
Column Number: 1214
I seek some enlightenment from the Minister. Why was it felt necessary to include such a provision? If we refer to the legal bible, ''Archbold'', about the nature of legal and professional privilege, we find references to examples of material that may not be subject to the privilege. I cannot find any reference to the specific exclusion of a client's name and address, but I may be wrong. Even if it were excluded from privileged material, why is there a need to spell that out explicitly when that could be the subject of argument when the case came before the judge for determination?
I assume that the Government and their draftsmen had a specific intention in mind. The mere fact that they spell out such a provision explicitly rings an alarm bell with me, in that there is an intention to restrict legal professional privilege in such instances. It is possible to do that by specific reference under statute, but why do the Government wish to do that?
It is noteworthy that there are no notes to clause 337 in the explanatory notes. What is intended? Perhaps I am wrong, but I had always assumed that if a client came to me for legal advice, the legal professional privilege extended to a duty of confidentiality towards him in respect of what he told me, the fact that had been to see me at all, and certainly his name and address. If I consulted my professional body, perhaps I would be told that I should provide such material. Whether or not such knowledge is confidential, why are such matters being spelled out explicitly under the clause if it is not the intention to restrict legal professional privilege in such a fashion?
Mr. Ainsworth: The amendment would mean that a lawyer would not have to produce material or information in response to an investigation warrant or an order made under this part of the Bill that was subject to legal privilege in any circumstance. Importantly, that would include material or information that provided only the client's name and address.
The Government recognise the need to prevent legally privileged material and information from being obtained for an investigation and then being used to construct a case. Legal privilege is a common concept in our law, and receives statutory definition in section 10 of the Police and Criminal Evidence Act 1984; in broad terms, it defines the privilege as communication between an individual and a lawyer in respect of legal advice or proceedings.
However, it would assist the operation of investigations if an investigator were able to obtain the name and address of persons under investigation, and of their associates. Such information might be held on a solicitor's database, and as it may have been obtained as a consequence of a request for legal advice, it would be subject to legal privilege. The Government want to provide a limited exception that would allow access to specific legally privileged material and information.
The obtaining of addresses will assist in the serving of production orders, search warrants, and the other orders under part 8. The addresses in the documents provided by a lawyer will not be allowed to form a part of cases brought before a court—regardless of whether
Column Number: 1215
they are confiscation, civil recovery or money laundering proceedings. The address may be of operational use and help the investigator to obtain his evidence.
As the hon. Gentleman is alert to new encroachments on legal immunity, I offer a quotation from section 2(9) of the Criminal Justice Act 1987:
''A person shall not under this section be required to disclose any information or produce any document which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege in proceedings in the High Court, except that a lawyer may be required to furnish the name and address of his client.''
The provision is a direct read-across from the 1987 Act, and it does not extend the power that that Act established, so he need not search for detailed hidden intentions.
As the provision—in common with many others in the Bill, as has frequently been mentioned—is a direct read-across, I hope that the hon. Gentleman will withdraw the amendment.
Mr. Mark Field (Cities of London and Westminster): It is evident from earlier exchanges that I am no great friend of lawyers' professional privilege—although my hon. Friend the Member for Beaconsfield has made it clear that that privilege is intended to protect clients, rather than lawyers.
The Minister quoted from the 1987 Act, but the corresponding part of the Bill is worded differently. I have a concern, which might not have been considered, about the burden that may be placed on a lawyer to produce material. If a money laundering scam involving large amounts of paperwork is operating from a residential address, I am concerned that the wording may place a strong obligation on a lawyer to produce material. The lawyer may be required to produce all the material, and that could include reams of headed notepaper that need not necessarily be in his possession at any one time. The wording of the 1987 Act takes account of what the Minister wants to achieve, without putting that additional obligation on a lawyer.
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