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Lord Carter: My Lords, I have been advised by my colleagues to say that I shall write to the noble Lord. I am surprised that the noble Lord should ask this question. As he will be aware, this morning we had a meeting lasting about an hour and half in which we discussed planning for this Bill but he did not raise the point that he has just raised. The only information I have is that the Prime Minister's car was seen to drive
into Buckingham Palace and out again. I believe that the windows were shaded. As soon as there is an announcement to the public about the possibility of an election I shall in the usual way interrupt the business, ask the House to resume and make a Statement regarding progress of business. But until there is a public announcement my hands are tied.
Lord Cope of Berkeley: My Lords, for the avoidance of doubt, I should make clear that at the start of the discussions this morning both sides agreed that they would take place on a contingency basis.
Lord Carter: My Lords, I have just replied on a contingency basis.
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 47 [Extension of existing disclosure powers]:
The Earl of Mar and Kellie moved Amendment No. 97A:
- Page 40, line 31, leave out "or may be"
The noble Earl said: Amendment No. 97A, together with my other last minute amendments--for which I apologise to the Committee--were suggested by the Law Society of Scotland. I remind Members of the Committee that I am not a solicitor.
The Bill extends to Scotland. Although criminal justice is a devolved matter, the Bill is promoted for Scotland under the reserved power of this Parliament to make laws for Scotland.
Amendment No. 97A restricts the circumstances in which the disclosure of information can be extended to criminal investigations. It removes the opportunity for disclosure powers to be used where criminal proceedings may be initiated. The Bill could be read as permitting so-called "fishing trips" into sensitive information. That would be a mistake. The amendment removes such a possibility. Amendment No. 97B is similar in effect to Amendment No. 97A. It applies to disclosure when criminal proceedings have been initiated.
Amendment No. 101A upgrades from the negative to the affirmative procedure any order made under Clause 47(3). As drafted, Clause 47(3) will be subject to annulment. These regulations deal with matters of substance; that is, the extension of disclosure powers. They should be fully debated in Parliament prior to implementation under the affirmative procedure. I also suggest that the regulations should be placed before the Scottish Parliament for its approval before implementation.
Amendment No. 102A seeks to ensure that there is no right to require the disclosure of items subject to legal privilege within Clause 47. Article 8 of the European Convention on Human Rights enshrines the right to privacy. The law is usually eager to protect the relationship between a solicitor and his or her client. Provision is made for that within the doctrine of legal professional privilege. To protect that doctrine,
provision should be made on the face of the Bill to ensure that Clause 47 does not extend to the disclosure of information subject to legal privilege.Amendment No. 198A simply restricts the circumstances in which the disclosure of information will be permitted. It restricts that disclosure to actual criminal investigations. Amendment No. 108B similarly applies where criminal proceedings have been initiated. I beg to move.
3.15 p.m.
Lord Cope of Berkeley: Before we get into the detail of these particular amendments, we are in the awkward situation to which I previously alluded. That is a particular difficulty so far as concerns Part 2 of the Bill. The section contains a complicated matter with considerable detail. It was not discussed during the consideration of the Bill in another place. At Second Reading it was briefly referred to in some speeches.
We all want to help the police. There is no difference between the Government and the Opposition or any Member of the Committee in that desire. The Bill deals with difficult matters of crime. However, at the same time we are conscious of the spectre of "Big Brother" and of the tremendous opportunities offered by electronic communications and IT for the retention of information about everyone. There are all kinds of new analytical tools--data mining, friendship trees and so on--that can be used on such electronic data. Therefore, there are important issues in the Bill which have not been properly discussed.
Part 2 of the Bill deals with privacy of tax information. It also deals with legal privilege. The noble Earl drew attention to that matter. Some of his proposed amendments deal with that issue. It is an extremely important principle in our law in ensuring justice. The enacting of the Regulation of Investigatory Powers Act and the Government's difficulties with it since, provide an awful warning, as well as an overlap to these provisions. It is extremely important that these potential powers--given not only to the police but also to other authorities--are properly controlled and looked at. It is a difficult and delicate area in which to strike the right balance. Unless we have a proper opportunity to debate the Bill--not merely today, but on Report after the usual reflection, at Third Reading and after another place has had an opportunity to look at any amendments we might make to it--we would not want to see Part 2 of the Bill proceed.
I make that point in the hope that we can perhaps avoid any unnecessary discussion if we should be interrupted in our deliberations today and it becomes clear that we are not going to have a full debate on the matter. In principle, we are not against any powers of this kind. But we believe that they need serious reflection and thought from Parliament as well as from outside and from the affected bodies. Both legal interests and others have great reservations about this
part of the Bill. Some of those concerns are reflected in the proposed amendments before us today. Therefore, we must think very carefully about the matter.
Lord McNally: We on these Benches share the concerns expressed by the noble Lord, Lord Cope. Indeed, they will be a reoccurring motif throughout the debate. The Home Office and, indeed, Law Officers are always coming to this House with a sense of urgency and righteousness that they need this or that power at once to fight the forces of evil. But the duty of the House and another place is to give due scrutiny to measures and to make sure that powers extended to the authorities are made to jump sufficiently high hurdles before they are granted.
In recent years there has been a tendency for insufficient scrutiny of such measures. I think of the emergency legislation after Omagh where the Home Office slipped in a whole series of powers along with the anti-terrorism measures. The House has a right to say that there should be proper scrutiny of such measures. Indeed, I hope that it is not just when the interests of lawyers and accountants are brought into question that the House should show its willingness to dig in its heels. If the Prime Minister had had his original wish of an election on 3rd May, the Bill would not have seen the light of day. It would not even have had the chance it has now of becoming law. Therefore, it is no use Ministers warning us of the dire consequences of not giving them their legislation within the next 24 hours. They or the successor government have ample time to bring these measures back to Parliament in the summer for them to have the scrutiny that such important measures deserve.
Lord Carlisle of Bucklow: I support what my noble friend Lord Cope has said. We are moving into a sensitive area of the Bill. While I am not suggesting that police should not have all the necessary powers to investigate crime, it is an area that must be approached with great care. The fact is that many authorities in this country hold in their records private, intimate and sensitive information about individuals. The rights of those authorities to disclose that information have to be looked at with great care. The noble and learned Lord the Attorney-General will be aware that the Joint Committee on Human Rights considered this aspect of the Bill. While it accepted the need for the powers to disclose, it expressed concern as to some of the details.
I should like to raise one important point. I may be raising it in ignorance more than anything else. We are widening the power to disclose to cover, for example,
- "the purposes of any criminal investigation ... which ... may be carried out",
- "the purpose of initiating or bringing to an end any such investigation".
Baroness Noakes: Many of the amendments in the group stand in my name. I shall not address them in detail at this stage as I should like to hear what the noble and learned Lord the Attorney-General has to say. A number of concerns have been expressed about this part of the Bill. They have been expressed by those who are involved in advising on tax matters. I refer to the Institute of Chartered Accountants, with which I am connected, and the Chartered Institute of Taxation. There are concerns about the possibility of information going overseas to territories that treat tax offences differently and where there are different consequences for taxpayers and their families. More fundamentally, there are concerns about the impact of the Bill on the compliance culture of the UK tax system. Our tax system is built on a high degree of trust between taxpayers and the Inland Revenue. The Bill as drafted would drive a coach and horses through that framework of trust, which has served the country well for a long period of time.
The Bill has also attracted the concerns of business interests such as the CBI. It is concerned about business information being disclosed abroad to the harm of UK businesses. Furthermore, concern was expressed by the Joint Committee on Human Rights, to which my noble friend Lord Carlisle referred. It concluded that there is a need to introduce adequate safeguards into the Bill.
Many of my amendments concerned the introduction of adequate safeguards. In particular, they centred on introducing a requirement for the consent of an appropriate judicial authority--a Crown Court judge or the equivalent in Scotland--and conditions such as a judge having to take into account whether or not a crime is reasonably expected to be committed and having to take into account some of the overseas dimensions.
I emphasise that serious concerns have been expressed on those points. That is not to say that those who are commenting have any desire to stop the proper fight against serious crime. All Members of the Committee share that desire and all those who have commented share that desire. What is so worrying is the wide and sweeping nature of the powers and the lack of checks and balances within the legislation. I shall not say any more about my amendments at this stage because I should like to hear what the noble and learned Lord the Attorney-General has to say.
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