| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord McIntosh of Haringey: I think—and I hope—that there is a profound misunderstanding and that we are not as far apart as may at first appear.
The noble Baroness, Lady Buscombe, quoted the Joint Committee of January this year. But, of course, the Joint Committee was referring to the Criminal Justice and Police Bill as it was before the House prior to the election. Most of that Bill disappeared during the wash-up; it was abandoned because there was still disagreement about it. However, the important issue is that there are huge differences between the proposals in the Criminal Justice and Police Bill and what is provided in this Bill.
The Joint Committee recommended in January of this year in regard to the Criminal Justice and Police Bill that, inter alia, there should be a pre-disclosure proportionality test which would oblige the individual disclosing the information to assess the proportionality of disclosing information in the context of the offence in question; that there should be a time limit placed on the grounds on which information should be disclosed—specifically, as they stand in this Bill, at Clause 17(2)(c) and (d); and that Clause 19(2)(c) and (d) should be narrowed.
Since then, we have provided on the face of the Bill that only public authorities can disclose. That covers
all of these points. It means that the Data Protection Act and the Human Rights Act apply to all of these disclosures. That, in turn, means that the recommendations of the Joint Committee—for example, on proportionality—are available here. It is necessary to look at the difference between the pre-election Bill and this Bill in order to understand the extent to which we have taken into account all of the recommendations of the Joint Committee.
Baroness Buscombe: I must apologise to the Minister. I have been a bit slow on the uptake. While I was saying that it is our view that Part 3 of the Bill is identical to Part 2 of last year's Criminal Justice and Police Bill, I was actually quoting from the report by the Joint Committee on Human Rights which was published on 14th November.
Lord McIntosh of Haringey: I am grateful for that. If it means that I have to think about something that I have said, I shall certainly do so. The differences between this Bill and the previous one certainly are of huge significance.
The amendment is complicated. Perhaps I may make three points. First, the amendment is framed in terms of public authorities facing requests for information. While it may be the case that such requests are made, the intention is to allow bodies to volunteer information where this would be helpful in preventing or investigating crime, without having to be asked for it first. It will be for the body holding the information to decide whether to disclose it. There is no element of compulsion or obligation on the public authority to disclose.
Secondly, the Human Rights Act already obliges any public authority to consider, before disclosing, whether disclosure is proportionate. We have provided that the disclosures under Clause 17 will only be from public authorities, so that the Human Rights Act, unlike the Criminal Justice and Police Bill, applies to all of these disclosures.
The third point relates to the problem of restricting the disclosures to terrorist offences. We have gone over that ground and I shall not weary the Committee again. I must repeat, however, that in cases where a criminal investigation is in its early stages it may not be clear that a terrorist offence has been committed or that the investigation will become a terrorist investigation. In such cases, if the amendment were accepted officials would not be able to disclose potentially vital information.
The rest of the arguments used in relation to the amendment are ones to which I responded during debates on previous amendments. I hope that the amendment will not be pressed.
Baroness Buscombe: I thank the Minister for his response. Again, I apologise for my rather late intervention, which was not particularly helpful.
I shall be brief. The Minister said that the amendment is complicated in three ways. Perhaps we should re-think our drafting. I shall consider his
remarks with care—although I should forewarn him that my initial response is that we cannot agree with what he has said. However, we should like to read his remarks in Hansard. On that basis, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
[Amendments Nos. 58 and 59 not moved.]
Baroness Buscombe moved Amendment No. 60:
- Page 7, line 18, after Xmay" insert X, after consultation with the Scottish Ministers,"
The noble Baroness said: Again, I shall be brief. In moving this amendment, I shall speak also to Amendment No. 61, which is a Liberal Democrat amendment, and to my Amendment No. 66.
Amendments Nos. 60 and 66 are probing amendments. They relate to one of the provisions in the Bill which impact on an area of devolved competence, criminal law and procedure. To take full account of the devolution settlement, we have been asked by the Law Society of Scotland to recommend that provision is made on the face of the Bill for consultation with Scottish Ministers prior to an order being issued by the Treasury.
We entirely support Amendment No. 61 tabled by the Liberal Democrats. I beg to move.
Lord Goodhart: Amendment No. 61 stands in my name and that of my noble friends Lord McNally and Lord Thomas of Gresford. Clause 17(3) states:
- XThe Treasury may by order made by statutory instrument add any provision contained in any subordinate legislation to the provisions to which this section applies".
Amendment No. 61 gives effect to a recommendation of the Delegated Powers and Regulatory Reform Committee that the Committee should consider converting that from the negative to the affirmative resolution procedure. That is what Amendment No. 61 provides. I understand from something that the Minister said earlier that the Government may be minded to accept that. If so, I need say nothing further.
The Earl of Mar and Kellie: I have put my name to Amendments Nos. 60 and 66. I hope that the Minister's response to these amendments will be that there was a simple omission; and that the devolution settlement devolved criminal law and criminal procedure in Scotland. While I accept that Parliament reserved to itself the power to override the Scottish Parliament and therefore does not need to consult Scottish Ministers, I believe that that would be bad politics. Accepting the amendments would be good politics.
Lord McIntosh of Haringey: As the noble Lord, Lord Goodhart, anticipated, I can confirm that we shall follow our usual practice of bowing down before
the Delegated Powers and Regulatory Reform Committee. We shall produce amendments to provide for the affirmative resolution procedure.I think that the noble Earl is trying it on a little with Amendments Nos. 60 and 66. If on every occasion that secondary legislation involved devolved administrations we had to put into the legislation that we shall consult the Scottish Ministers we would have a substantial increase in the size and scope of legislation and more Scottish forests would fall as a result. Of course, we shall consult with Scottish Ministers but we do not have to say so. We have a Sewell memorandum on this Bill. All the primary legislation has been agreed by the then Acting First Minister as appropriate to be applied to Scotland. It is hardly conceivable that when we come to secondary legislation we should face these difficulties.
The Earl of Mar and Kellie: My one complaint about the use of a Sewell Motion procedure is this. No doubt the Minister of Justice approved the Bill when it was published. The Scottish Parliament does not have the chance to see the Bill until after it has become an Act during the process of which it may have been modified.
Lord McIntosh of Haringey: It was agreed not to debate it. It will have the chance to see it and we shall discuss all the subordinate legislation with Scottish Ministers. We do not need to put that on the face of the Bill.
Baroness Buscombe: I thank the Minister for his response and accept what he has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.15 p.m.
Baroness Buscombe moved Amendment No. 62:
- Page 7, line 25, at end insert—
The noble Baroness said: The amendment relates to legal privilege. I shall be very brief. The remarks of the noble Lord, Lord Brennan, on the principle of legal privilege during the Second Reading debate on the Criminal Justice and Police Bill in April this year are relevant here. He said:
That entirely supports the concerns expressed earlier this evening by my noble friend Lord Kingsland. I beg to move.
X( ) Nothing in this section shall authorise the disclosure of information which is subject to legal privilege.
( ) For the purposes of this Part, information is subject to legal privilege if it forms part of communications made in connection with, or in contemplation of, legal proceedings and for the purposes of these proceedings being communications which would in legal proceedings be protected from disclosure by virtue of any rule of law relating to the confidentiality of communications."
XLegal professional privilege enjoys its historical importance in our criminal and civil law because it protects the citizen against unreasonable interference by the state. Citizens can talk to their lawyer in private and by so doing protect their human rights and protect their desire to prove their innocence if charged, if they can. In the view of many, that is still a vital part of our democracy. It distinguishes us from a totalitarian state where such concepts are regarded as irrelevant. It is an important feature of our legal life
28 Nov 2001 : Column 413and of our system of human rights as we now have them and it should not be damaged or diminished without the most careful consideration".
I hope that the noble Lord, Lord Brennan, will not mind if I quote from him a little further. He went on:
XIn an age of electronic records, I find it difficult to accept that the Bill will allow the seizure of electronic material by people who have no idea what they are doing in terms of distinguishing between what is privileged and what is not. Once obtained, even with an obligation to return it as soon as possible if it is privileged, are we really to think that the information obtained by the police if it is privileged will not be stored, at least mentally if not in some permanent form? I find that extremely concerning. It could give rise to a state of affairs whereby, at one extreme, lawyers do not record their advice and, at another, they encrypt their communications with their client or their records of them".—[Official Report, 2/4/01; col. 684.]
Next Section
Back to Table of Contents
Lords Hansard Home Page