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Baroness Anelay of St Johns: I gave notice that I objected to Clause 10 standing part, since when the Minister has kindly indicated that she agrees with me on that matter. Therefore, when the Chairman puts the Question to the Committee, I propose to say "Not Content".

Clause 10 negatived.

Clause 11 [Codes of practice]:

Lord Dholakia moved Amendment No. 24:

The noble Lord said: This is about codes of practice in relation to the exercise by SOCA of police powers. Police officers are bound by codes of practice under the Police and Criminal Evidence Act governing many aspects of their powers. If it is not thought practical to make these codes binding in relation to SOCA, as we explained when discussing Clause 4, we believe that the Home Secretary should issue detailed codes as soon as possible in relation to the exercise of police powers, Customs powers and immigration powers by SOCA. Such codes are invaluable in safeguarding the rights of suspects. Observance of correct procedures also helps to prevent later arguments that evidence has been unfairly obtained. The issuing of such codes will therefore make SOCA more effective. I beg to move.

Baroness Scotland of Asthal: Concern has been expressed in this House and in another place as to the use that will be made of the powers of a constable, Customs officer and immigration officer by members of staff of SOCA. Once again, I can assure the Committee that these powers will not be designated lightly or irresponsibly. Indeed, a government amendment was passed in another place to ensure that staff will not be given any of these powers unless the director-general is sure that they are capable, suitable, and have had adequate training relevant to that power.

While I understand the noble Lord's concerns to ensure that SOCA officers will exercise their powers in an appropriate manner—I, of course, commend him for that—we feel that the Bill already makes sufficient provision for this. Furthermore, by requiring the Home Secretary to issue codes of practice on the exercise of police powers, the amendment could cut across the PACE codes of practice which would already apply to SOCA officers designated with PACE powers.
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In the light of that explanation, I hope that the noble Lord will feel a modicum of contentment and will feel able more easily to withdraw the amendment.

Lord Dholakia: I thank the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Clauses 12 to 16 agreed to.

Clause 17 [Inspections]:

Baroness Scotland of Asthal moved Amendment No. 24A:

"( ) Before requesting an inspection that would fall to be carried out wholly or partly in Scotland, the Secretary of State must consult the Scottish Ministers."

The noble Baroness said: I was considering the issue raised by the noble Duke, the Duke of Montrose, and was waiting for him to speak. However, my amendment seeks to cure his.

I reassure the noble Duke that this amendment, which stands in my name, will do exactly what he wishes. The noble Duke makes a valid point and I am happy to accept his amendment in principle. The wording of his amendment is, however, not as simple as it might be and I trust that he will support the government amendment in lieu of his own. I beg to move.

On Question, amendment agreed to.

The Duke of Montrose had given notice of his intention to move Amendment No. 25:

"( ) The Secretary of State must consult the Scottish Ministers before requesting an inspection under subsection (2) above—
(a) if the inspection is to be carried out wholly in Scotland; or
(b) in a case where the inspection is to be carried out partly in Scotland to the extent that it is carried out there."

The noble Duke said: As this amendment is grouped with Amendment No. 24A, I thank the Minister for her redrafting of the content of the amendment. The Bill makes clear that there will be a great deal of consultation and co-ordination with Scottish Ministers, as the Minister was keen to emphasise. However, the matter referred to in the amendment was one area that had not been covered. As Scottish inspectors are likely to be involved as well as Her Majesty's Inspectors of Constabulary, it is important that the matter is covered. I am prepared to support the noble Baroness's amendment. I shall not move my amendment.

[Amendment No. 25 not moved.]

Clause 17, as amended, agreed to.

Clause 18 [Grants by Secretary of State]:

[Amendments Nos. 26 and 27 not moved.]

Clause 18 agreed to.

Clause 19 [Determinations relating to grants under section 18]:

[Amendment No. 28 not moved.]
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Clause 19 agreed to.

Clauses 20 to 27 agreed to.

Clause 28 [Regulations as to equipment]:

[Amendment No. 29 not moved.]

Clause 28 agreed to.

Clauses 29 to 34 agreed to.

5.30 p.m.

Clause 35 [Disclosure of information to SOCA]:

The Duke of Montrose moved Amendment No. 30:

The noble Duke said: In moving Amendment No. 30, I shall speak also to Amendments Nos. 31 and 35. Amendment No. 30 is a paving amendment for Amendment No. 31. Amendment No. 31 seeks to ensure that information subject to legal privilege cannot be disclosed to SOCA. This has been raised because Clause 35 raises a rather sensitive issue within the devolution settlement. I am led to believe that the Serious Fraud Office in England currently has such powers, but I understand from the Scottish Law Society that those powers do not apply in Scotland at present so, without the amendments, the clause introduces a totally new measure in Scotland.

As drafted, Clause 35 permits the disclosure of confidential information to SOCA. The person disclosing the information can do so with impunity. The Law Society of Scotland is concerned about the impact that that may have on the doctrine of legal professional privilege. The law is careful to protect the relationship between the solicitor and client by the doctrine of legal privilege, which has recently been reaffirmed by the House of Lords and by the Court of Appeal. To assist in the proper functioning of the rule of law, a client must be able to rely on the fact that he or she can communicate openly with his or her solicitor in the knowledge that such communication is privileged. To preserve that relationship, provision should be made to the effect that Clause 35 would not extend to the disclosure of information subject to legal privilege.

In Clause 35, the Law Society of Scotland has endeavoured to incorporate the definition of legal privilege for the purposes of Part 1 of the Bill. It leads me to believe that even though a later government amendment includes a definition of legal privilege, it would require to be defined in both parts. It is important to have a clear understanding in the Bill of the information that will fall within the definition of legal privilege. This definition reflects the definition of legal privilege given in the Proceeds of Crime Act 2002. I beg to move.

Baroness Scotland of Asthal: I say straight away to the noble Duke, the Duke of Montrose, that I have sympathy with the principles behind the amendments, but on this occasion it is not sufficient to persuade me to accept his amendments at this time.
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Information will be the lifeblood of SOCA. The new agency will, after all, be intelligence-driven in all its activities, which will be better targeted and more proportionate with the single aim of significantly reducing the harm caused by serious organised crime to the United Kingdom. The effect of the amendments would be to restrict significantly the flow of information to SOCA, in turn significantly damaging our ability to tackle and defeat serious organised crime.

Legal professionals in particular are often party to information, be it information that is disclosed to them alone by their clients or those seeking advice from them, or information that would corroborate other information that SOCA might obtain. The amendments would deprive SOCA as well as others of that vital information resource, with the effect of damaging its ability to perform its purpose. Indeed, it may be argued that organised criminals could exploit a potential loophole created by the amendments by disclosing information to their advisers in the knowledge that the information would not then be passed on to SOCA.

I suspect that what drives the amendments is a wish to ensure there is appropriate protection for a person's information. I understand that, and I fully sympathise with those intentions. However, we consider that the Bill already provides such protection. The power in Clause 35(1) to disclose information is permissive in nature. Information may only be disclosed for the purposes of the exercise by SOCA of any of its functions. Further, Clause 35(3) expressly makes clear that the provisions of the Data Protection Act 1998 still apply to any information disclosed to SOCA and, needless to say, so does the Human Rights Act 1998. Although the amendments are well intentioned, I hope that the noble Duke will agree that in light of what I have said the Bill strikes the right balance. I hope that those who have advised him will also be content with that.

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