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Mr. Carmichael: There is no reason for the Law Society of Scotland to approach the Scottish Executive on matters that are before this House. If approaches are to be made, they should be made to the Home Office or to the Scotland Office. An approach may have been made to the Scotland Office, but we cannot know that because no Scotland Office Minister is present. There is a need to include Scotland in the Bill, because failure to
do so will surely lead any judge seeking to construe this clause in Scotland to say that Parliament intended the provision to apply to England, Wales and Northern Ireland, but that if it had intended it to apply to Scotland it would have said so.
Caroline Flint: I understand that the Scottish Law Society has not contacted anyone in my Department about these issues.
Caroline Flint: If I may continue, I shall get to the crux of the issue and explain why I do not think that the amendment should be accepted.
I was talking about the amendment to clause 26. Search warrant procedure in Scotland differs from that in the rest of the United Kingdom, and the search warrant procedures in the Police and Criminal Evidence Act 1984 do not extend to Scotland. The common law principle of legal client confidentiality would apply to the execution of warrants granted under the Bill.
In certain circumstances it may be appropriate to have a definition in Scotland that equates to that used in the rest of the UK. That applies to some aspects of mutual legal assistance when requests for assistance are being sent to a variety of jurisdictions, as well as pertaining to international criminal investigations that may originate in both Scotland and England. Clause 10, which implements the new provisions relating to outgoing freezing orders, is one such instance. Clause 10(3)(d), which applies in Scotland, contains the term
- "items subject to legal privilege".
Let me stress again that the amendment is not required for Scotland, particularly in relation to clause 18, as it would be tautological. The clause gives the sheriff the same powers in relation to granting a warrant as he has in domestic cases under section 134 of the Criminal Procedure (Scotland) Act 1995. He is therefore already required to take into account any question of legal client confidentiality. The amendment would also put Scotland in a different position from the rest of the UK, where search warrant provisions do not include any provisions additional to or different from the provisions in PACE. A sheriff faced with a provision as amended would be entitled to believe that there was a different standard to be applied by him in consideration of the application. That is not the intention of the Bill.
Amendments Nos. 40, 41, 42 and 43 all relate to chapter 4, which concerns banking information. Customer information cannot relate to legally privileged material—that is, communications between a professional legal adviser and a client in connection with the giving of legal advice, or in contemplation or for the purposes of litigation. Customer information orders can be made only against financial institutions that are defined by reference to the Proceeds of Crime Act 2002, and only in relation to customer information. We do not see how the subject matter of the orders could constitute legally privileged material. All four clauses covered by the amendments relate to orders made against banks
and other financial institutions to obtain specified information. Any reference to legal professional privilege would be irrelevant in such circumstances.For those reasons, I am afraid that we cannot accept any of the amendments.
Mr. Carmichael: When I was a solicitor practising in the courts I often found myself engaging in arguments or debates about questions of legal or statutory construction. One would ask oneself, "How on earth did Parliament not see that coming? Why on earth did it leave such an ambiguity?" Following my election I know that Parliament usually did see it coming, but that officials told the Minister that action was not necessary, and that was the end of the matter.
May I clarify the issue of the Law Society for Scotland? I am not sure what point the Minister was trying to make when she said that there had been no contact between the society and the Scottish Executive. We do not know about the Scotland Office, and the Minister tells us that she has heard nothing from her Department. I have here a briefing letter from Michael Clancy. I do not know whether the Minister is trying to suggest that the society does not support the amendments, but that is clearly not the case.
Caroline Flint: I was not suggesting for a minute that the Law Society for Scotland had not lobbied the hon. Gentleman. I merely said that I understood that no such lobbying had taken place with the Scottish Executive or with officials from my Department dealing with the Bill.
Mr. Carmichael: The fact remains that that is the society's view, and I hoped that it would be given rather more consideration than the Minister appears to have given it today.
The Minister was doing so well, but she seems to have lost the track. She has made me not angry, but a little sad and disappointed in her. However, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Paice: I beg to move amendment No. 34, in page 15, line 35, leave out 'Treasury' and insert 'Secretary of State'.
This is a small but important matter. One reason why we tabled this amendment for consideration was to give the Government the opportunity to come back to the House. The hon. Member for Coventry, North-East (Mr. Ainsworth), who dealt with this issue previously as a Minister—he has been elevated to deputy Chief Whip—accepted that the existing brief did not clarify matters as well as he would have liked. In fact, he said:
- "I am not certain to what degree I am prepared to resist."—[Official Report, Standing Committee A, 12 June 2003; c. 121.]
5 pm
I previously urged the current Minister not to read out a line about resisting, and she heeded my advice and immediately accepted the amendment tabled by the hon.
Member for Somerton and Frome (Mr. Heath), so I hope that she will follow the example of the hon. Member for Coventry, North-East, but perhaps her resistance will prove stronger than his did. As a Minister, he undertook to seek further advice from the Treasury about whether it wanted the Government to continue to resist the amendment, and my first request to the current Minister is to give us the benefit of that further advice.There is a serious point that I want to reiterate. We did not debate this issue in Committee through an amendment, so this is the first time we have been able to consider amending the Bill in this way. You have much more experience of such matters than me, Mr. Deputy Speaker, but it is surely very rare, if not completely unheard of, for a Bill to include powers for "the Treasury" to grant an order. It is customary for legislation to give powers to "the Secretary of State", because such terminology covers any senior Minister and Cabinet member who is responsible for a Department. Indeed, that procedure is commonplace. We never specify the Secretary of State for a particular Department, so as to allow for future changes; however, this Bill gives power to "the Treasury".
I argue against doing that, and in two valid ways. First, if by "the Treasury" the Government mean the Chancellor of the Exchequer—or any other Treasury Minister—I see no reason why he should not be classified as a Secretary of State. Perhaps the Minister can say whether there is some legal reason why the Chancellor, despite being in charge of a Government Department, is not considered a Secretary of State. My understanding is that he is so considered—he is certainly paid the same as the other Secretaries of State—so I see no reason why the generic term cannot be used.
We face another oddity. The Treasury itself is an institution, not a person. In legislation, we carefully give powers to Ministers and to Secretaries of State. They are people—members of the Government acting on the Government's behalf to introduce orders for our consideration. It seems odd to seek to give power to an institution, to a building. If the legislation has to be related to the Treasury—I will take a lot of convincing that that is so—why does it not specify the Chancellor of the Exchequer or, as I said in Committee, the Prime Minister, who is First Lord of the Treasury? I cannot understand why the Bill should refer to a building.
Dr. Julian Lewis: Since entering this House in 1997, I have never seen a Bill that referred to a ministry rather than to a Secretary of State. The only explanation that I can think of for the failure to refer to a Secretary of State, or to the Chancellor of the Exchequer by his office, is the current state of relations between No. 10 Downing street and the Exchequer.
Mr. Paice: I cannot deny that the thought crossed my mind, but I am perhaps too nice a person to make such an allegation. [Interruption.] I hear the Government Whip say, "Surely not", and he is probably right. I shall make amends later.
I am making an important point. On the one hand, we are giving powers to an institution rather than specifying an individual Minister or using a generic term for a member of the Government. On the other hand, we
seem to be restricting the powers to a specific Department. When we debated the issue in a stand part debate in Committee, it was argued that the Treasury might wish to make legislation about Customs and Excise. I understand that, but that is to presume that, for ever and a day, Customs will be part of the Treasury. That may or may not be the case, but the same argument could be advanced for any other Government institution.The issue of whether an area of policy will always be associated with a specific Department is important and is precisely why we do not specify Secretaries of State for individual Departments. We always use the generic term "the Secretary of State", so I cannot understand why, in respect of making an order for the consideration of the House, the Government persist with using the term "the Treasury". The Minister was reasonable earlier when she accepted an amendment, and I hope that she will not resist this one.
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