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Viscount Simon moved Amendment No. 46A:

("(1A) It is a defence for an owner or agent of a ship or aircraft charged with an offence under paragraph 17(2) to prove either--
(a) that the specified information requested was not in his possession; or
(b) that it was not reasonably practicable for him to comply with the request.").

The noble Viscount said: My Lords, I thank my noble friend for his words regarding Amendment No. 46A. I am sure that we shall all study with interest what he has had to say. The chances are that I shall return to this point. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 8 [Detention]:

7.15 p.m.

Lord Goodhart moved Amendment No. 47:

    Page 114, line 42, at end insert--

("( ) Any part of the consultation heard by the qualified officer shall be treated as subject to legal privilege binding on the qualified officer.").

The noble Lord said: My Lords, we have now reached the final group of amendments. In speaking to Amendment No. 47, I should like to speak also to Amendment No. 48. However, since I tabled Amendment No. 48, I have discovered that the expressions "legal privilege" and "legal professional privilege" are not appropriate expressions in the law of Scotland. For that reason, Amendment No. 48 is defective.

Amendment No. 47 raises an issue on which I hope to receive a reassurance from the Government. The reason why a police officer may be required to listen to what is being said during the course of an interview between someone charged with an offence or who is being held under investigation and his or her solicitor is that there may be cases where, regrettably--although it certainly has happened--the accused might wish to pass on to the solicitor information which would enable evidence to be hidden or other damage to be done to the investigatory process. We accept that that is a legitimate excuse for providing a requirement that the interview should take place within the hearing of a police officer.

However, a problem arises where what is being overheard may perfectly well be the normal substance of an interview between client and solicitor in which the client gives to his solicitor an account of the facts as he sees them. In that case, if the police officer is not bound by professional privilege, that officer would be entitled to pass on to other members of the police force and ultimately to the prosecution the substance of what he has overheard. That information might in due course be of use to the prosecution in the trial because it would allow the prosecution to say that the accused's

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evidence on a certain point was inconsistent with the original story as told to the accused's solicitor. That seems to us to be improper.

The legal professional privilege that attaches between a client and a solicitor--which does not of course extend to matters such as requesting assistance in hiding evidence--should also bind the police officer, so that that officer is equally prevented from passing on to the prosecution information about what he has overheard during the course of the consultations between client and solicitor. I hope that the Minister will be able to reassure me that this amendment is not necessary, but, if it is, it seems to me to be a point that should be covered by the legislation. I beg to move.

Lord Bach: My Lords, we believe that there are technical and policy reasons why we cannot accept these amendments. As regards the technical point, the noble Lord, Lord Goodhart, got there before me in his comment on the expression "legal privilege" in the language used in Scottish legal circles.

I shall turn directly to the policy issues here. On a substantive level, as we understand it, the concern of the noble Lord is to ensure that nothing passing between a person detained under Schedule 8 to the Bill and his solicitor should be available for use by the prosecution in subsequent criminal proceedings against the detainee.

Lord Goodhart: My Lords, that does not quite cover the burden of the amendment. It seeks to ensure that nothing which could be the subject of legal professional privilege as between client and solicitor should be capable of being passed on by the police officer who overhears the consultation. Matters that range outside professional privilege, which would undoubtedly cover an instruction to the solicitor to dispose of evidence, would not be covered by the privilege.

Lord Bach: My Lords, we believe that such a provision is unnecessary. The way the provisions in the Bill are framed, in that they provide that the officer in the interview must be uniformed and a uniformed member of the force, not connected with the detained person's case, indicates that the intention is not to collect information which may be later used in evidence against the detainee. Rather, the purpose is, as detailed in Schedule 8--in paragraph 8 so far as England and Wales and Northern Ireland are concerned and paragraph 17 so far as Scotland is concerned--is to prevent the compromise of terrorist investigation. These paragraphs make it clear that this is the only reason that a police officer may sit in on such an interview. That purpose is reinforced by the fact that such communications between the detainee and his solicitor under common law would be protected by legal privilege or its equivalent in Scotland, confidentiality. Thus we do not believe the amendments to be necessary

In any event we think they are rather widely drawn. They appear to suggest, although the noble Lord has made it clear that they do not, that anything which is

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discussed between a solicitor and his client should attract legal privilege. That is not so in ordinary cases and we do not think it should be the case in terrorist ones.

We accept that the prosecution must not be provided with legally privileged material. That does not mean of course that the police are prevented from taking any action in connection with anything overheard in an interview. For instance, if a detainee provides information, to take an extreme example, about an imminent terrorist attack, of course action may be taken to disrupt the bomb.

As I said in Committee, it is acutely uncomfortable to contemplate circumstances in which such provision may be needed. I emphasise to the House that it is only for the most exceptional cases; but it is important for it to be there. For the reasons that I have explained, we believe that the concerns of the noble Lord about the provisions are unfounded. I hope he will feel able to withdraw his amendment.

Lord Goodhart: My Lords, I am grateful to the Minister. I think that my worries have been disposed of by what he has said, and I am grateful that he has now put that on the record. In the circumstances I am happy to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 48 not moved.]

Schedule 9 [Scheduled Offences]:

Lord Bach moved Amendment No. 49:

    Page 127, line 37, at end insert--

("Computer Misuse Act 1990 (c. 18)

18A. Offences under the following provisions of the Computer Misuse Act 1990 subject to note 1 below--
(a) section 1 (unauthorised access to computer material),
(b) section 2 (unauthorised access with intent to commit further offence), and
(c) section 3 (unauthorised modification).").

On Question, amendment agreed to.

Schedule 13 [Private Security Services]:

Lord Bach moved Amendments Nos. 50 and 51:

    Page 138, line 45, leave out from ("may") to ("appeal") in line 46.

    Page 139, line 2, at end insert--

("(4) Rules made under section 91 or 92 of that Act which are in force immediately before this paragraph comes into force shall have effect in relation to a certificate under this paragraph--
(a) with any necessary modifications, and
(b) subject to any later rules made by virtue of sub-paragraph (3)(b).").

On Question, amendments agreed to.

Schedule 15 [Consequential Amendments]:

Lord Bach moved Amendments Nos. 52 and 53:

    Page 147, leave out lines 13 to 17.

    Page 148, line 12, at end insert--

("Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)

.--(1) The Powers of Criminal Courts (Sentencing) Act 2000 shall be amended as follows.

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(2) In section 88(2)(b) (meaning of "remanded in custody") for "section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989" substitute "section 41 of the Terrorism Act 2000".
(3) In section 101(12)(b) (meaning of "remanded in custody") for "section 14 of the Prevention of Terrorism (Temporary Provisions) Act 1989" substitute "section 41 of the Terrorism Act 2000".").

On Question, amendments agreed to.


7.23 p.m.

Baroness Ramsay of Cartvale: My Lords, since the debate on Indonesia is not now being taken as dinner-break business, the length of speeches for all speakers other than the noble Baronesses, Lady Cox and Lady Scotland, may be eight minutes rather than four minutes. There is of course no obligation on noble Lords to extend their speeches.

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