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The Earl of Mar and Kellie: The Law Society of Scotland suggested the amendment to us. I shall restrict my remarks to the simple point that not including the amendment will lead to ambiguity, whereas including it would prevent that. That is particularly important when so much in the Bill is rightly being done behind the backs of suspected terrorists. The public need to know where we stand on the issue.

Lord Phillips of Sudbury: We strongly support the amendment. People dislike bestowing statutory privileges on lawyers, but this is one privilege that is for the benefit of people.

Lord McIntosh of Haringey: The Committee is not going to catch me disagreeing with the noble Lord, Lord Brennan, about legal professional privilege. However, the relevant Acts in Schedule 4 already contain provisions that prevent people being compelled to produce information that is subject to legal professional privilege. Nothing in the Bill will extend those duties or possibilities. It is very unlikely that information that is subject to legal professional privilege will be obtained under the provision listed in the schedule. Information subject to legal professional privilege will certainly not be obtained by compulsion under the existing enactments. Only information that is required by statute is covered.

Although the amendment has such distinguished provenance, it is misconceived. This part of the Bill deals with the disclosure of information, not the obtaining of information. There are already protections in place to ensure that information that is subject to LPP is not obtained under the listed enactments.

There is a possibility that the information could be provided to a public authority voluntarily. It could then be disclosable under the new gateways. But it would still be necessary to consider the other restrictions such as confidentiality. If a person discloses legal advice to a third party in confidence, that duty of confidence would still prevent disclosure

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even if the new gateway applied. We support the thinking behind the amendment, but I hope that it will be recognised that it is not necessary.

Baroness Buscombe: I thank the Minister for his response. The amendment may appear misconceived but it is there for a purpose. Our purpose has been achieved, which was to obtain the Minister's reassurance. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 63 to 65 not moved.]

On Question, Whether Clause 17 shall stand part of the Bill?

Lord Phillips of Sudbury: We have had a long and at times arduous debate on Clause 17, but disclosure is at the heart of the Bill. The clause has the widest ramifications. Those of us who view it as too wide are unhappy at the outcome of tonight's debate. I am also tempted to reflect again on the fact that not a single speaker—beyond the Ministers involved—has defended the clause as it stands.

The Minister has admitted that it provides a huge extension of rights of disclosure. There is no doubt that a public authority to which a request for disclosure is made under Clause 17 will be unable to refuse it without good reason. That would be a judicially reviewable decision. The Minister is indicating that that is not true, but a public authority to which a request for disclosure was properly made under Clause 17 could not simply refuse to comply. It would be a reviewable decision according to Wednesbury principles and it represents a right on the part of those requesting the disclosure.

The provision is not confined to terrorism, which is the purpose of the Bill; it is not confined to UK offences; it is not confined to serious offences; and, it is not confined to disclosure by government departments and state bodies. It extends to public authorities—hybrid authorities, in particular, so a vast array of organisations will be subject to the measure.

It is not confined to disclosure to public authorities. The Minister has confirmed tonight that individuals carrying on private prosecutions will be able to use Clause 17 along with authorities. It will also—this was a surprise—extend to all those who are accused in respect of private or public prosecutions. Therefore, a vast new array of potential users of the clause come into view.

It will not be confined to individuals in this country but includes individuals abroad. It will not be limited to reasonable, relevant or proportionate requests for disclosure. On all that, the Minister says that there is the Human Rights Act, which, as everybody knows, will be an unreachable remedy for the vast majority of people.

Clause 17 and the extended powers it gives are not confined just to the 66 statutes in Schedule 4—they can be added to; they are not confined to requests for disclosure from abroad only where there are comparable legal rights and protections for UK

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citizens; they are not confined to requests for disclosure from abroad only where there is a comparable integrity of the administration and application of those foreign laws; and they are not even confined to requests for disclosure in connection with actual prosecutions or investigations. As we know, paragraph (d), as it currently stands, will allow a far wider disclosure than that.

Not at any point are any of these disclosure arrangements subject to the say-so of a magistrate or a judge, not even to a warrant. Attention was drawn to the vastly different regime under the RIPA Act which does indeed provide the sort of protections we sought in the amendment on authorisation. There is nothing here except the dim and expensive prospect of legal proceedings by way of judicial review or under the Human Rights Act. And it relates not only to future effect; it also relates to retrospective facts—those already in the kitty, so to speak.

All in all, we feel that this clause disfigures an already problematic Bill. It is offensive to our traditions and to the real but limited needs giving rise to it, and indeed to common sense. It is condemned by Liberty, Justice, the Law Society, the Bar Council, the BMA and the General Medical Council. We have all been showered with representations soberly made by sober organisations which fear for the extent of this measure.

Finally, there is no sunset provision in the legislation. If it was truly a measure that related to terrorism, a sunset clause would be added here as it has been added elsewhere in the Bill.

I do not intend to reiterate what I said less than 24 hours ago at Second Reading on the background to this. But we believe strongly—I think I can speak for both Benches on this side of the Chamber—that it should be withdrawn and resubmitted in a fair and sensible form. At this hour of the night I do not intend to press for a vote.

Baroness Buscombe: I rise simply to support the words of the noble Lord, Lord Phillips of Sudbury. I hope that we can pursue some of these areas further outside the Chamber between now and Report stage.

Lord McIntosh of Haringey: I believe I have responded to virtually all the points made by the noble Lord, Lord Phillips, in the deliberate statement that I made on Amendment No. 48A before we broke for dinner. The only new element in what he said is to say that there would in effect be an obligation on public authorities to disclose.

That is simply untrue. Nothing is provided either here or anywhere else which forces public officials or public authorities to disclose any information. What is given in this clause is the power to give information. I have already described the safeguards in place. I have already commented on the fact that a large amount of public debate on this issue has been on the basis of serious misconceptions about the provision.

Lord Goodhart: Does the Minister agree that since the authorisation means that the officers of a public

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authority are exercising a public function in deciding whether or not to agree to a request for information, their decision would in fact be reviewable by a court and therefore they would be bound to act reasonably in deciding whether to give the information? If they were acting unreasonably in refusing it, they could be ordered to give it.

10.30 p.m.

The Earl of Onslow: This has been quite a depressing debate. It has reminded me of my grandmother. When she became engaged to be married, my grandfather said to her, XMarriage is a question of give and take" to which she replied, XYou give and I take".

In my view the arguments on this side of the Committee have been overwhelming, not just because I have tried to advance some of them. I sincerely hope that if I can be persuaded by an argument on the other side, I will be. I was. I was very influenced by what the noble Lord, Lord McIntosh, said as regards the first amendment. He said in relation to it that the magistrates are quite capable of dealing with the question of drug money confiscation and that they had done so for 10 years. So I was influenced by what he said. In other words, I was prepared to listen to what he said.

The impression I have is that, however good the argument on this side, the noble Lord has been given instructions to resist, resist and resist. None of us is arguing in any way that terrorism should not be defeated as quickly and efficaciously as possible. The noble Lord suggested that I should divide the House the whole time. He would not like me to carry out his instructions. There are 185 amendments. That figure, multiplied by 20 minutes, is something in the region of 90 hours of parliamentary time, which I suspect takes us beyond next Easter or something like that. I am sure that that is not part of the Government's programme.

All I am saying is that in my view the arguments have been overwhelming. They have been resisted with charm and great ability by the noble Lord. But he has not convinced one single Member of his own Back Benches to speak in his support. He is unable, however much he has tried, to counter the arguments put brilliantly by the noble Lord, Lord Phillips. Some of us have tried to chip in as well. It is very depressing when one hears intelligent people producing intelligent arguments, not just for Xyah boo" sakes, being resisted and resisted. That is all I have to say tonight and I am now going home to bed.

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