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Lord Phillips of Sudbury moved Amendment No. 48A:
- Page 7, line 7, after Xauthority" insert Xto another public authority".
The noble Lord said: This, too, is a probing amendment. I hope that it will be of use to the Committee in consideration of this complex Bill. Late last night, when grappling with the wording of Clause 17(2), it seemed to me that the scope of disclosure permitted by that clause may be wider than most of us understand or, indeed, than the Government intend. It is wide enough in authorising disclosure by or on behalf of a public authority, given of course that Xpublic authority" is defined by reference to the Human Rights Act.
Therefore, public authorities do not include only governmental departments, governmental bodies and statutory bodies but what are known as Xhybrid" public bodies. That term extends to organisations such as the Law Society, the Bar Council, the General Medical Council, a doctor or healthcare worker working within the NHS, a privatised company running a school or a prison, Railtrack and the Press Complaints Commission. It is a massive extension of disclosure prospects.
The point of the amendment is to confine the right to disclose to all the bodies concerned in accordance with the 66 scheduled pieces of legislation, to other public bodies or, as I have expressed it, to another public authority. As the clause stands, I cannot see any reason for wondering whether or not the disclosure is also to be allowed to an individual who comes within paragraphs (a), (b), (c) or (d) of Clause 17(2); that is, an individual bringing a private prosecution, contemplating bringing a private prosecution or contemplating investigating a private prosecution, as covered in paragraph (d).
There, of course, we enter a very deep and broad sea. One is dealing with the prospect of an individual bringing criminal libel proceedings, which very often are highly personal and acrimonious. One thinks of cases such as that of the late lamented Jimmy Goldsmith against Private Eye. One thinks also of criminal damage prosecutions, of rape or attempted rape prosecutions, of theft or attempted theft prosecutions, perjury prosecutions and a host of others.
It will be no answer to the huge range of private activities that fall within paragraphs (a), (b), (c) or (d) to say that some of them require the fiat of the Attorney-General before the prosecution can take place. Of course, paragraphs (a), (c) and (d) of subsection (2) extend to activities prior to the commencement of the prosecution. Only the commencement of the prosecution requires the consent of the Attorney-General in a few cases.
Therefore, as I said, the amendment is designed to prevent the clause extending to that whole range of cases. It would also prevent an unfairness in that, if, indeed, private prosecutions were within the scope of this clause, there would be a serious inequality of arms because the defendant in those private prosecutions
would not have the same rights of access to disclosed information as the prosecuting individual. On those grounds, I beg to move.7.15 p.m.
Lord McIntosh of Haringey: I can reassure the noble Lord, Lord Phillips, to some extent, but I do not believe that I shall be able to do so completely. The extent to which I can reassure him is that, as the Bill is drafted, a defendant in a private or public prosecution is included as a person to whom information can be disclosed. But he would not be included if the amendment were carried. Therefore, the amendment would work in the opposite direction to the sense in which the noble Lord, Lord Phillips, wants it to work.
The provisions permit disclosure only for purposes connected with criminal proceedings or criminal investigations. That is a very great restriction on the wide range of examples that the noble Lord, Lord Phillips, gave in introducing the amendment. However, it is true that private prosecutions would be included, as would, for example, the private prosecution of those accused of the murder of Stephen Lawrence. Is that so terrible? I am not sure that I agree that it is.
The Earl of Onslow: In the context of this Bill, yes, it is terrible. We are dealing with terrorism, terrorism and terrorism. We are not dealing with the murder of Stephen Lawrence; we are not dealing with brothel keeping; and we are not dealing with parking on a double yellow line. We want to confine the Bill to what the Government say it is about. Many of us have made that complaint. Yesterday, I and many other noble Lords around the House made that very complaint. We must confine the Government. No one is saying that they should not have these powers if they want them; but they must get them by proper legislation and proper means. That is the complaint that runs through the whole core of this argument.
Lord McIntosh of Haringey: I appreciate the force with which the noble Earl, Lord Onslow, makes his point, and I appreciate that it was made by a number of other people. From that point of view, perhaps my example was unfortunate, just as the examples given by the noble Lord, Lord Phillips, of criminal libel and criminal damage could be considered to be unfortunate in the other direction. Therefore, the extent to which I cannot satisfy the noble Lord, Lord Phillips, is by saying that we acknowledge that the Bill permits disclosure to those involved, whether or not they are public authorities, in criminal investigations and proceedings.
As the noble Earl, Lord Onslow, has widened the discussion, perhaps this is an appropriate moment for me to say something about Clause 17 as a whole. I believe that it is enormously important.
Lord Phillips of Sudbury: I thank the Minister for giving way. Would it be better if I responded to my amendment before he launched into a general statement? It is entirely up to the Minister.
Lord McIntosh of Haringey: It is up to the Committee. But I have something to say about Clause 17 which affects all the amendments to that clause. If it were for the convenience of the Committee, I should like to find an opportunity to say it. However, I am in the hands of the Committee.
Lord Phillips of Sudbury: I believe that that is enormously helpful. However, it may finalise the discussion on this amendment if I were to respond to what the Minister said and then leave him free to make his general remarks.
Lord McIntosh of Haringey: I shall not make general remarks except on an amendment. Shall I simply do it?
Lord Phillips of Sudbury: Yes.
Lord McIntosh of Haringey: There has been much misrepresentation in relation to Clause 17. Therefore, I want to say that these gateways—the provisions for information disclosure—in Schedule 4 all exist. They have all been approved by Parliament. There are no new gateways. They refer to information of specific types which are covered by existing statutory restrictions on disclosure, and they are restricted to information collected under statutory powers.
The duties under the Human Rights Act and the Data Protection Act still apply to all disclosures. Disclosures must be proportionate, necessary and lawful. Only public officials will be able to disclose, and only in their capacity as public officials. That means that something arising in the pub will not count. I have read that the provision will allow access to information from doctors or bank managers, but they are not public officials, and health records and bank records are not covered by the provisions. We are simply widening each of the gateways to ensure that disclosure is permitted if all other safeguards are satisfied for criminal proceedings, as now, to investigations and to determine whether an investigation should begin.
There is no question of public officials being obliged to make disclosures. It is up to them to decide whether to do so. There is certainly no question of the police or anyone else trawling records. There will be no investigatory access to the records covered by the Acts in Schedule 4. Public officials will have to determine on a case-by-case basis whether they may disclose the information.
Those are huge changes since the Criminal Justice and Police Bill was before Parliament before the election. I hope that our discussion of Clause 17 will be informed by my comments.
Lord Phillips of Sudbury: That is a most irregular response to a specific amendment. Many people will be astonished to know that Clause 17 covers not only individuals bringing private prosecutions—I enumerated some of them—but also that disclosure vis-a-vis private and public prosecutions will extend to the accused. That goes far beyond the expectations that any of us had.
I turn to what Jack Straw said on the matter in the other place during the passage of the Criminal Justice and Police Bill in January this year. He described the provisions as allowing a,
- Xreciprocal flow of information between those bodies, the police and the National Criminal Intelligence Service".—[Official Report, Commons, 29/1/01; col. 41.]
There has been a unanimous response to the measure, from Liberty, Justice, the Law Society, the Bar Council, Uncle Tom Cobbleigh and all. The provision is drafted in the widest possible terms as regards the categories, particularly category (d). We shall later come to an amendment dealing with that. We have now heard not only that public authorities include hybrid bodies that are not public at all in the common sense of the word but that they will allow any person bringing any private prosecution to have access to disclosure under Clause 17, and any person accused by a private citizen bringing a private prosecution or by any state, body, police or prosecuting authority.
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