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Lord McIntosh of Haringey: The noble Viscount, Lord Goschen, does not like plain English either. The clause means what it says. The matter has to be kept under review. If there are changed circumstances which mean that the order should be revoked, that will be done. What the Treasury cannot do, according to Clause 7, is simply to make an order and forget it. This clause is entirely desirable as well as being clear.
Lord Kingsland: I thank the Minister for his reply. As regards Amendment No. 43, the noble Lord said that an explicit provision of the sort contained in that amendment would impair the effectiveness of the power. I find it hard to see how that can be so. If the noble Lord has no other complaint than that against the amendment, then surely including it on the face of the Bill would be wholly advantageous.
Lord McIntosh of Haringey: There could be a wide range of conditions set out in Section 4. It could be that some of them have changed as the amendment provides and the order must be revoked. Surely that cannot be right. One must admit the possibility that under changed conditions, which have been identified in the review, it would not be appropriate for the order to be revoked.
Lord Kingsland: I am most grateful to the Minister for that further clarification. But the amendment says,
- Xif it ceases to have reasonable grounds to consider the conditions set out in section 4 are fulfilled".
Lord McIntosh of Haringey: I am glad to do that. I always reflect on these matters.
Lord Kingsland: I am most grateful to the Minister. I am also grateful to the noble Lord for his response to Amendment No. 45. I am not quite sure what conclusions I should draw from what the Minister said. Is he accepting my amendment by saying that it is unnecessary or is he accepting it by saying that he is going to add it to the Bill? This is the amendment regarding the Gazette.
Lord McIntosh of Haringey: No, certainly not. It would be inappropriate use of the Gazette. The statutory instruments are published and the Bank of England provides all banks with a summary. It is quite unnecessary and an inappropriate use of the Gazette.
Lord Kingsland: I thank the noble Lord for that clarification. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 [Procedure for making certain amending orders]:
[Amendments Nos. 46 and 47 not moved.]
On Question, Whether Clause 13 shall stand part of the Bill?
7 p.m.
Lord Phillips of Sudbury: This is an error. The Question should be whether Clause 17 stand part of the Bill. Clause 13 concerns de-hybridisation. I have raised the matter with the learned Clerk and, with the leave of the Committee, the Question whether Clause 17 stand part of the Bill should be dealt with in the right place, which is at the end of the amendments to Clause 17.
Clause 17 [Extension of existing disclosure powers]:
Lord Goodhart moved Amendment No. 48:
- Page 7, line 6, at beginning insert XSubject to subsection (2A),"
The noble Lord said: In moving Amendment No. 48, I wish to speak also to Amendments Nos. 59, 70 and 81. These all raise the issue of the privilege against self-incrimination. Part 3 deals with the disclosure of information. Clause 17 extends many existing powers of disclosure to cover disclosure for the purposes of criminal investigations or criminal proceedings. Clause 19 concerns disclosure of information held by the Inland Revenue or Customs and Excise.
I shall confine my remarks to Clause 17 but they apply also to Clause 19. Clause 17 applies to the provisions in Schedule 4, which contains a list of 53 statutes and a number of Northern Ireland orders, under which information is required by government departments or public authorities. That information is now to be used not only for the purposes for which it was originally required under the 53 statutes but also for the purposes of criminal investigations and criminal proceedings.
A large number of those statutes—I have not attempted to go through all of them, but those I have looked at make the position quite clear—require people in the private sector, individuals or companies, to provide, under statutory direction, information on certain subjects. If that information is to be used for the purposes of criminal proceedings against the persons who provided that information, the question arises whether that is a breach of the privilege against self-incrimination which has been held to be part of Article 6 of the European Convention on Human Rights.
I admit that to some extent the law on that point is in a somewhat uncertain state. Some years ago we had the decision of the European Court of Human Rights in the case of Ernest Saunders. Mr Saunders had in the course of the investigation of the Guinness share pushing deal been required to give evidence to inspectors under the companies legislation. It was a statutory requirement that he should give that evidence. The evidence that he gave was then used against him in the criminal trial. Subsequently, it was held by the European Court of Human Rights that there was a breach of his rights under Article 6.
In the other direction we have the decision of the Privy Council in the case in Scotland, the name of which, I believe, was Brown, in which a woman was required to state whether or not she was driving a car at a particular time as that information was relevant to criminal proceedings against her. It was held that the request to give that information was not a breach of her rights under Article 6. Therefore, it is not clear what the position is. I raise the provision largely as a probing amendment to find out whether the Government recognise that some of these obligations under Clause 17, and perhaps also under Clause 19, may breach the privilege against self-incrimination. If that is the case, how do the Government propose to deal with that, or do they simply intend to leave the matter at large and
allow the courts, when looking at any particular case, to decide whether there is a breach of the privilege against self-incrimination? I beg to move.
Lord McIntosh of Haringey: Strictly speaking, I ought to confine myself to the amendments which concern the use to which information can be put by prosecutors, which is not the subject of this part of the Bill at all. This part of the Bill deals only with disclosure. However, the noble Lord, Lord Goodhart, made a perfectly legitimate point to which one ought to respond. Before I discuss the issue of self-incrimination, I should say that the extension here does not concern criminal proceedings. Disclosure provisions already exist in regard to criminal proceedings. The extension here concerns criminal investigations. Therefore, it is less of an extension than the noble Lord indicated.
Let me make it clear that we are not changing the ways in which information can be used; we are simply widening the gateways from prosecutions to investigations. The specific answer to the noble Lord's question is that some of the Acts listed in Schedule 4 already contain provisions that prevent information obtained through compulsory powers being used as evidence against the person who provided it. Those restrictions on use will continue to hold good for information disclosable under Part 3. The noble Lord mentioned the Saunders case. Some of the provisions for information disclosable under statutory powers came into conflict with that case and some of the Acts referred to in Schedule 4 have been amended accordingly. As I say, those restrictions on use will continue to hold good for information disclosable under Part 3.
In addition to the restrictions on use that may already be contained in the enactments listed in Schedule 4, which will still apply, any public authority prosecuting a criminal offence and any court considering the matter would have to consider the Human Rights Act and the Saunders and Brown cases to which the noble Lord, Lord Goodhart, referred.
Baroness Carnegy of Lour: Is the Minister able to say whether the Government accept the recommendation of the secondary legislation committee that the order referred to in subsection (3) of Clause 17 should be subject to affirmative procedure, or has that not yet been decided?
Lord McIntosh of Haringey: That point will be dealt with in consideration of a later amendment. In order to curtail debate, I shall say in advance that we shall accept the recommendation of the Delegated Powers and Regulatory Reform Committee.
Lord Goodhart: I am grateful to the Minister. It is clear that the Government have given some consideration to the possible self-incrimination aspects. In the circumstances, I believe that broadly my inquiries have been answered satisfactorily. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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