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Lord Phillips of Sudbury: I rise briefly to support the amendments spoken to by my noble friend Lord Mar and Kellie. In all the talk about legal privilege there is a danger--not among Members of the Committee but beyond these walls--of it being thought that the privilege attaches to the lawyer. The privilege is for the benefit of the client. Legal privilege is an ancient one
and is the bedrock of a fair trial process. It surprises me that there is not protection for the traditional right of non-disclosure of legal communications in the Bill as it stands. Perhaps the noble and learned Lord the Attorney-General can assure us that it is already there. I am strongly in favour of amendments that support legal privilege.
Lord Campbell of Alloway: I support the amendments because, although the powers are sought probably correctly in the main, there must be some safeguards. There is no time adequately to discuss this matter. It is wholly unreasonable that in these circumstances we should be required to deal with the safeguards that are needed. I support the amendments on that ground.
3.30 p.m.
The Attorney-General (Lord Williams of Mostyn): I sympathise with the tone of what has been said, not least because the regrouping has only just arrived in my hand. I therefore understand that fellow Members of the Committee will have difficulty in moving their amendments.
The noble Earl, Lord Mar and Kellie, moved Amendment No. 97A and spoke to Amendments Nos. 97B, 108A, 108B, 102A, 110A and 116A. However we get on today, it may be helpful if we at least attempt to remind ourselves of the amendments with which we are supposed to be dealing. I dare say that I have the amendment numbers wrong. The noble Earl has gone to two of the pre-existing groups, about which I make no complaint at all. We are all in the difficulty of having to deal with much wider groupings than we had originally intended.
I accept entirely what the noble Lord, Lord Cope of Berkeley, said. He wishes to help the police and other investigators--the Bill is not limited to the police--in legitimate inquiries. The noble Lord said that this is a delicate area. I accept that. The noble Lord, Lord McNally, said that Ministers sometimes come with a sense of urgency and righteousness. We are having a division of labour this afternoon. My noble friend Lord Bassam will do the urgency and I shall do the righteousness--if that is acceptable to the Committee.
The noble Lord, Lord Carlisle, asked specific questions about whether there should be a reasonable suspicion before the material may be disclosed. I accept what the noble Lord, Lord Campbell of Alloway, and the noble Baroness, Lady Noakes, have said. I understand entirely that the noble Baroness said that she would not go into the detail of her amendments because they formed what might be called a wider-sighted shot.
Perhaps I may deal with the specific amendments that have been moved so far. Those are the amendments tabled in the name of the noble Earl, Lord Mar and Kellie, which seek to leave out the words, "or may be", along with the grouping which is the offspring of the Law Society of Scotland, dealing with legal professional privilege, touched on by the noble Lords, Lord Carlisle of Bucklow and Lord Phillips of Sudbury.
Amendments Nos. 97A and 97B, and 108A and 108B, seek to leave out the words "or may be" which noble Lords will find in the relevant subsections in Clauses 47 and 49 of the Bill. I underline the following words because they have been of great concern to all noble Lords who have spoken in this short debate. We believe that, subject to appropriate safeguards--I shall return to these because they are important--public authorities ought to be able to disclose information about wrongdoing to law enforcers. The appropriate safeguards are those within the provisions themselves, together with the very important restrictions put on disclosure provided by the Human Rights Act and the Data Protection Act, along with the Secretary of State's power to limit disclosure overseas. If carried--I know that they have been moved with good motive and with a view to securing a good outcome--these amendments would prevent the spontaneous disclosure in cases where information holders had information about criminal activity, but where criminal investigations or procedures had not been initiated.
Perhaps I may give an example, which does not intend in any way to diminish the point which has been made by a number of noble Lords. I understand that there has been an occasion where a drugs trafficker reported his earnings as arising from drug trafficking. Under the present law, the Revenue authorities were not able to inform the police of that matter. I hope that all noble Lords would agree that that is nonsensical, not least because the expertise, subtlety and sophistication of those who commit some of these extremely extensive crimes are significant. The reason why we seek to include the words "or may be" is that it should not be necessary to wait for the trigger of a criminal investigation before such matters can be disclosed. However, I state again that the appropriate safeguards to which I have referred are in place. I hope that I have dealt fully with the point put to me by the noble Earl.
On the question of legal privilege which, as I said earlier in my remarks, was touched on also by the noble Lord, Lord Phillips of Sudbury, Amendments Nos. 102A, 110A and 116A are not necessary because information which benefits from legal professional privilege could not be disclosed in a way which would undermine the privilege. Most compulsory powers to obtain information do not extend to material which is legally privileged. For that reason, it would be unusual for the disclosing authorities to possess information which is legally privileged. Where the compulsory powers do so extend, the information keeps its privileged nature, notwithstanding the compulsory acquisition. The extent of the privilege will therefore limit the extent to which the authority will be able to disclose the information to third parties. That is because the disclosing authority will have to refrain from acting in a way which would undermine the individual's legal professional privilege. I accept the analysis put forward by the noble Lord, Lord Phillips, as regards exactly whose property is the privilege.
All disclosing authorities under Schedule 1 and Clause 49 will be public authorities within the meaning of the Human Rights Act 1998. I understand that the only exception is Section 4(2) of the Electronic Communications Act 2000. My advice is that the Government do not intend to bring that into force. What are the consequences? It would mean that any disclosure that might be made would need to comply with the right to a fair trial by virtue of Article 6 of the European convention. I can say from my own experience in acting for the British Government in the case of Shah that this is not lightly overlooked by the European Court.
The voluntary disclosure of information to the authorities under the provisions of Schedule 1 or those contained in Clause 49 sometimes may amount to a waiver of the privilege. In those circumstances, the information would not be protected from disclosure. I have dealt with this in some detail because it is not the limited point put forward by the noble Earl. I have sought to reflect more widely the general concerns that have been raised. I repeat that I understand that those concerns deliberately have been raised in general terms because at present we are not dealing with specific points of detail.
This covers the amendments that have been moved so far, but I think that the noble Earl may have a question to put to me, to which I happily give way.
The Earl of Mar and Kellie: I am most grateful to the noble and learned Lord. I should like to clarify that I spoke to Amendments Nos. 101A and 102A, rather than to Amendments Nos. 110A and 116A. Amendment No. 101A concerns moving the order from the negative to the affirmative procedure and possibly also putting it before the Scottish Parliament.
Lord Williams of Mostyn: The noble Earl is quite right. Indeed, when gathering together my papers and probably because of my poor handwriting, I read "110A" for "101A".
Amendment No. 101A would not alter the principle that, once the Bill comes into force and thereby harmonises over 70 existing provisions covering statutory disclosure, the Government ought to be able to enact by statutory instrument similar provisions contained in subordinate legislation. We believe that the negative resolution procedure will be sufficient in this case. I remind noble Lords of an extremely important point which is normally deployed against my submissions; namely, that the Delegated Powers and Deregulation Committee has examined the Bill. As I remember, it did not express reservations of any kind about the use of the negative procedure in relation to this power.
I apologise both to the Committee and to the noble Earl for having mistaken the group to which he was speaking. As I have said, the regrouping--as it may subsequently become--was not in my hands when he moved his amendment. I wanted to pay particular attention to the substance of the amendments.
I hope that I shall be able to continue to address noble Lords for a few moments longer. I was brought up in Wales where, as the noble Lord, Lord Thomas of Gresford, will underline, we were always taught to be extremely economic when making submissions of any kind. Indeed, I have often pointed out to the Chief Whip that, given the kind of remuneration one enjoys, one is not really entitled to look for more than 12½ minutes.
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