Clause 337 - Further provisions

Proceeds of Crime Bill – in a Public Bill Committee am 11:45 am ar 29 Ionawr 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 11:45, 29 Ionawr 2002

I beg to move amendment No. 290, in page 195, line 2, leave out 'may' and insert 'does'.

Photo of Mr Bill O'Brien Mr Bill O'Brien Llafur, Normanton

With this it will be convenient to take Government amendments Nos. 474 and 529.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

These are purely drafting amendments. They have no substantive effect. My aim is simply to replace the word ''may'' with ''does'' in clause 337(1) and (4) and clause 370(1). Amendments Nos. 290 and 474 bring the wording of the clause in line with that used in respect of the other powers in clauses 343, 350, 357 and 363. It would be helpful to be consistent within part 8. Amendment No. 529 makes the same change to clause 370, the corresponding Scottish clause.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I am mildly intrigued. I remember that in an earlier sitting we discussed ''must not'' and ''may not''. We emphasised that ''may not'' means ''cannot''. I wonder why the word ''does'' has suddenly crept in. For my edification, will the Minister enlighten me as to why ''may'' should be replaced?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I cannot recall that we had a huge controversy over the words that the hon. Gentleman mentions. As I have said, I do not think that my proposals make any substantive change other than providing consistency in part 8.

Photo of Vera Baird Vera Baird Llafur, Redcar

If the word ''may'' is removed from line 2 and replaced by ''does'', will not the provision read

''except that a lawyer does be required to produce material''?

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

Line 2 states that a

''production order may not require''.

It will now read ''does'', not ''may''. Line 1 is the title of the clause.

Photo of Vera Baird Vera Baird Llafur, Redcar

I see. Thank you.

Amendment agreed to.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I beg to move amendment No. 550, in page 195, line 3, leave out from first 'material' to end of line 4.

Photo of Mr Bill O'Brien Mr Bill O'Brien Llafur, Normanton

With this it will be convenient to take the following amendments: No. 555, in clause 343, page 199, line 13, leave out from first 'material' to end of line 14.

No. 560, in clause 350, page 202, line 27, leave out from 'document' to end of line 28.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 12:00, 29 Ionawr 2002

I am sorry to return to the issue, but I was a little puzzled by the specific exception in respect of legal professional privilege that the Government felt the need to incorporate under the clause, which states:

''A production order does not require a person to produce, or give access to, privileged material, except that a lawyer may be required to produce material containing only the name and address of a client of his.''

I seek some enlightenment from the Minister. Why was it felt necessary to include such a provision? If we refer to the legal bible, ''Archbold'', about the nature of legal and professional privilege, we find references to examples of material that may not be subject to the privilege. I cannot find any reference to the specific exclusion of a client's name and address, but I may be wrong. Even if it were excluded from privileged material, why is there a need to spell that out explicitly when that could be the subject of argument when the case came before the judge for determination?

I assume that the Government and their draftsmen had a specific intention in mind. The mere fact that they spell out such a provision explicitly rings an alarm bell with me, in that there is an intention to restrict legal professional privilege in such instances. It is possible to do that by specific reference under statute, but why do the Government wish to do that?

It is noteworthy that there are no notes to clause 337 in the explanatory notes. What is intended? Perhaps I am wrong, but I had always assumed that if a client came to me for legal advice, the legal professional privilege extended to a duty of confidentiality towards him in respect of what he told me, the fact that had been to see me at all, and certainly his name and address. If I consulted my professional body, perhaps I would be told that I should provide such material. Whether or not such knowledge is confidential, why are such matters being spelled out explicitly under the clause if it is not the intention to restrict legal professional privilege in such a fashion?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The amendment would mean that a lawyer would not have to produce material or information in response to an investigation warrant or an order made under this part of the Bill that was subject to legal privilege in any circumstance. Importantly, that would include material or information that provided only the client's name and address.

The Government recognise the need to prevent legally privileged material and information from being obtained for an investigation and then being used to construct a case. Legal privilege is a common concept in our law, and receives statutory definition in section 10 of the Police and Criminal Evidence Act 1984; in broad terms, it defines the privilege as communication between an individual and a lawyer in respect of legal advice or proceedings.

However, it would assist the operation of investigations if an investigator were able to obtain the name and address of persons under investigation, and of their associates. Such information might be held on a solicitor's database, and as it may have been obtained as a consequence of a request for legal advice, it would be subject to legal privilege. The Government want to provide a limited exception that would allow access to specific legally privileged material and information.

The obtaining of addresses will assist in the serving of production orders, search warrants, and the other orders under part 8. The addresses in the documents provided by a lawyer will not be allowed to form a part of cases brought before a court—regardless of whether

they are confiscation, civil recovery or money laundering proceedings. The address may be of operational use and help the investigator to obtain his evidence.

As the hon. Gentleman is alert to new encroachments on legal immunity, I offer a quotation from section 2(9) of the Criminal Justice Act 1987:

''A person shall not under this section be required to disclose any information or produce any document which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege in proceedings in the High Court, except that a lawyer may be required to furnish the name and address of his client.''

The provision is a direct read-across from the 1987 Act, and it does not extend the power that that Act established, so he need not search for detailed hidden intentions.

As the provision—in common with many others in the Bill, as has frequently been mentioned—is a direct read-across, I hope that the hon. Gentleman will withdraw the amendment.

Photo of Mark Field Mark Field Ceidwadwyr, Cities of London and Westminster

It is evident from earlier exchanges that I am no great friend of lawyers' professional privilege—although my hon. Friend the Member for Beaconsfield has made it clear that that privilege is intended to protect clients, rather than lawyers.

The Minister quoted from the 1987 Act, but the corresponding part of the Bill is worded differently. I have a concern, which might not have been considered, about the burden that may be placed on a lawyer to produce material. If a money laundering scam involving large amounts of paperwork is operating from a residential address, I am concerned that the wording may place a strong obligation on a lawyer to produce material. The lawyer may be required to produce all the material, and that could include reams of headed notepaper that need not necessarily be in his possession at any one time. The wording of the 1987 Act takes account of what the Minister wants to achieve, without putting that additional obligation on a lawyer.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The clause is carefully worded and refers to material that contains only the client's name and address and precludes other legally privileged information being seen by an investigator. Clause 350(1) refers to disclosure orders and requires a lawyer to produce information about names and addresses. It will go no wider than that. The basic point, which has emerged in discussions about other parts of the Bill, is that the same powers already exist, albeit in a broader context. The powers already applied to disclosure orders and they now apply to production orders as well, but there is no intention to provide material that contains anything other than the client's name and address.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I am sorry, I may have made a mistake. Did the Minister say that the previous example of the use of such a clause was under section 29 of the Criminal Justice Act 1988?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

No, section 2(9). If I said section 29, it was unintentional.

Vera Baird: Will the Minister kindly read out section 2(9) again? I am not certain, but I thought that there was a distinction between the two.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Yes. Section 2(9) of the Criminal Justice Act 1987 states:

''A person shall not under this section be required to disclose any information or produce any document which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege in proceedings in the High Court, except that a lawyer may be required to furnish the name and address of his client.''

Those, I hope, are the words that I read out previously.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I am grateful to the Minister, and it is noteworthy that such a provision does not feature in ''Archbold''. That may be because it applies to some very narrow and limited circumstances in civil litigation. There is a reference in ''Archbold'' to the High Court, too. I am not happy about what we are doing. We may be extending substantially powers that would not have been used previously. I do not have section 2(9) in front of me, but it sounds that the provision may apply to far more restricted circumstances. I see that the Minister is being passed a note. Such a provision could open the door for people to say to lawyers, ''You have to tell us the name and address of the person who sought your advice.'' That troubles me.

My hon. Friend the Member for Cities of London and Westminster (Mr. Field) pointed out that the purpose of legal and professional privilege is to help the person seeking the legal advice. He is right, but the issue goes further than that. The public policy view is that it is desirable for people to have free access to legal advice, and that is a slightly different concept.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

Yes, access without fear of disclosure or revelation. Of course, access could be free in money terms, but it may also be very costly.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 12:15, 29 Ionawr 2002

Such a measure is not unprecedented. The reason for the difference in the wording arises from the fact that the Criminal Justice Act 1987 is about the disclosure of information. Clause 337 deals with production orders, which are about producing material. The Criminal Justice Act 1987 gives the Serious Fraud Office the power to require from a solicitor disclosure of his client's name and address, but no more than that. I hope that that explains the difference in the wording. We are talking about a production order, not a disclosure order. I am not saying that the context is not different, what I am trying to say is that the provision is not unprecedented.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

Yes. It is, perhaps, slightly unfortunate that the draftsman provided no background notes on this interesting clause, as it raises an important issue. Presumably, in view of the use of the word ''may'', the lawyer would under subsection (1) be entitled to go to court and explain why it would be undesirable to have to provide for such material in the production order. Am I wrong? Might the production order require the

production of such items? That might constitute a distinction between the 1987 Act and the Bill. Perhaps the Minister will help us on that and explain the extent of the judicial supervision involved.

In the absence of an assurance on the matter, I shall vote in favour of the amendment, although by the time we reach Report I may realise that I was worrying about nothing. At the moment, however, I am not completely persuaded.

Photo of Ian Davidson Ian Davidson Labour/Co-operative, Glasgow Pollok

I should like to break into this period of self-indulgence on the part of Opposition lawyers. I thought that the hon. Gentleman's point about free access to lawyers was especially interesting, but he quickly corrected himself.

This is a rather introspective dialogue, and I understand why the visitors who came into the Room earlier did not last long. Indeed, one of the officials beside me has started writing his will, on the basis that he thinks that he does not have long to live if the hon. Gentleman continues in his present vein.

The clause relates to the rights of lawyers, who have always struck me as worrying more about their income than about their clients. Does the Minister believe that the Bill gives the Government sufficient power to inhibit the collaboration of lawyers with criminals? We have spent an enormous amount of time discussing the position of lawyers and their need for protection, but I detect a lack of acceptance on the part of the Opposition that there is a problem with lawyers who are corrupt and dishonest and collaborate with criminals and without whom many of the difficulties in our society would not exist.

I hope that in his anxiety to be agreeable to the Opposition the Minister will not move away from the recognition that a serious problem is involved. I hope that he will reassure me that there are sufficient powers in the Bill and elsewhere not only to inhibit lawyers from collaborating with criminals but to catch and punish those who do.

Photo of Vera Baird Vera Baird Llafur, Redcar

I should like to outline what is troubling me so that the Minister can deal with it. The power in section 2(9) of the 1987 Act provides that there is no requirement to supply privileged information, although the lawyer may be required to disclose a name and address. As the Minister accepts, the wording in the clause is different, and I am worried about the possibility that the difference might lead to a problem.

The clause states:

''except that a lawyer may be required to produce material containing only the name and address of a client of his.''

I am sure that the purpose of the provision in subsection (1) is solely to obtain an address for service or operational reasons. I think that it is perfectly clear that that is what section 2(9) of the Criminal Justice Act 1987 is about, too. However, because of the phrase

''material containing only the name and address'' in subsection (1), does not that possibility arise?

The Minister does not want to empower the authorities to get their hands on material of evidential significance in a forthcoming trial or hearing. Is not there a danger that under subsection (1), a lawyer may be compelled to disclose a document containing a name and address? The address may or may not be current, but details of where the client lived three or six months or a year ago might be highly material evidence in an issue to be determined in the investigation.

The clause would compel or oblige a lawyer to give up that information. Because of the words ''material containing'', he might be obliged to give away something of evidential significance instead of just supplying the current name and address. That worries me, because although the Minister makes it plain that he does not intend to erode the right to privilege, I fear that he might be doing so.

Photo of Ian Lucas Ian Lucas Llafur, Wrecsam

To pick up on my hon. Friend's example, if such a piece of paper contained a date, surely that could not be disclosed under the clause. The subsection says:

''only the name and address''.

Photo of Vera Baird Vera Baird Llafur, Redcar

That piece of paper may not need to contain a date if it is found in the middle of a pile of papers that relate to 1994. It might be fairly clear that it is of evidential significance in connection with 1994, and it need not necessarily give more than the name and address to fall foul of the provision.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I am much obliged to the hon. Lady, because what she says makes a great deal of sense. I have tried to exclude the provision in three clauses. Clause 350 includes the provision that matches that in the Criminal Justice Act 1987, and states:

''A disclosure order does not confer the right to require a person to answer any privileged question, provide any privileged information or produce any privileged document, except that a lawyer may be required to provide the name and address of a client of his.''

If we left that in but took out the references in the other two clauses, we might achieve what the Minister wants while removing the possibility of the mischief that the hon. Lady has identified.

Photo of Vera Baird Vera Baird Llafur, Redcar

I had not applied my mind, I confess, to the mechanisms for correcting what I perceived to be the danger, but I am content if I have satisfactorily set out that danger, and if the Minister will consider it. This is not an oppositional point: it is being raised in order to prevent him from inadvertently going beyond his stated purpose.

A person is obliged to provide material. Even if it contains only the name and address, the very existence of something called ''material'', particularly when produced from a particular place, might be important evidentially, and be compellable under the clause. That is not what the Minister wants to get his hands on.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

Is the Minister saying that the provision ensures that information is provided, or is he saying that someone could be compelled to produce

the material on which that information is provided? If the latter, is that material susceptible to, for example, forensic examination?

What kind of material does the Minister have in mind that contains only a name and address? Even a business card would normally contain fax and telephone numbers. Does he suggest that the provision requires material containing just the name and address, with no extra information on it? As it is unlikely that such material would be in the possession of a solicitor, does he suggest that the solicitor creates material containing that information and then furnishes it? What lies behind the reference to ''material'', other than the fact that it falls under a part of the Bill that deals with disclosure orders?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

It does not fall only under the provisions for disclosure orders. That is the reason for the duplication and the change of words. The hon. Member for Beaconsfield suggested that we could rely on clause 350 alone to allow us to do what is required. That clause deals with disclosure orders and uses the same words as the previous legislation, as he rightly said, because disclosure orders require information to be disclosed. Disclosure orders are, by their nature, more intrusive than production orders, and later in an investigation, the issuing of and compliance with a production order could lead to a demand for a disclosure order.

We are introducing the requirement for a solicitor to be obliged to reveal information. My hon. Friend the Member for Wrexham (Ian Lucas) was correct that we use the word ''only'' in the text of the provision for a production order. We do not want to encourage people to go down the road of using a disclosure order unnecessarily.

A production order relates to the production of material. The only reason why material is mentioned is to put it in context. The order obliges the release of information that contains the name and address only. It is a separate provision; a disclosure order is more intrusive than a production order.

We are not opening up anything by using the word ''material''. However, as my hon. Friend the Member for Redcar suggests, I shall check that nothing unintended arises from the use of the word.

The hon. Gentleman said that he intends to press the amendment to a vote unless I tell him something about a lawyer's right to refuse. All these powers of investigation have judicial oversight. Therefore, the justification for the issuing of an order—whether it is a disclosure order, production order or anything else—must be approved. If that encourages him to vote against the measure, so be it. There is a need to be open. If a production order is approved, it must be complied with. There would not necessarily be a provision that the hon. Gentleman suggests for a lawyer to suggest that he should not be obliged to disclose information that contains a name and address.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

What would happen if a lawyer had material that contained a name, address and telephone number? Would he be obliged to make a

copy of the material that excised the telephone number, or would he be entitled to argue, ''I don't have material that contains only the name and address of a client, so I don't have to produce it at all''?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Let me be honest: I am not certain of the answer. To what extent is a telephone number part of an address, or additional to an address?

Photo of Ian Lucas Ian Lucas Llafur, Wrecsam

My reading of the clause is that any document that contains the name and address and additional material would not be disclosable. If I were a solicitor, I would argue that.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

It is a narrow point, but I do not know whether a telephone number is considered to be part of an address. I shall clarify that, and relay my findings to my hon. Friend the Member for Wellingborough.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

This has been an interesting debate, and I am grateful for the participation of the hon. Member for Redcar, who highlighted the key issue.

I thank the Minister for his reassurance about derivation. I can envisage circumstances in which a lawyer should, notwithstanding privilege, be required to disclose the current name and address of his client. I shall leave aside the interesting point about a telephone number that thereby excludes the document. As the hon. Member for Redcar rightly said, the way in which subsection (1) is worded would allow the seizure of any documents, even historical ones, that showed an earlier name and address of that person. Each of the amendments deals with a different clause, so it was perhaps a mistake to treat them generally because I now see the potential for substantial distinctions to be made.

Subsection (1), from which I want to delete the reference to a client's name and address, raises a major problem to which the hon. Member for Redcar referred, in that the production of historical material could be required. Similarly, clause 343(1) refers to a search and seizure warrant. It does

''not confer the right to seize privileged material, except material containing only the name and address of a lawyer's client.''

That, too, falls foul of the hon. Lady's point. I accept that clause 350(1) is most draconian. It covers the disclosure order and requires the lawyer personally to provide the name and address of a client. A court can insist on such action. That is exactly in line with the previous provision. The lawyer's duty is not a special protection for him—it extends only as far as the client. A lawyer who was requested to attend court and was told, ''Mr. Grieve, we shall require you in this case to disclose the name and address of your client,'' will do so cheerfully because of the court's ruling.

However, perhaps unintentionally, an attempt may have been made to deal with such matters through the possible seizure of documents or the serving of production orders, and that is not satisfactory. Although it may be possible to amend clauses 337(1) and 343(1) to refer only to the name and current address of a lawyer's client, I wonder whether it would

be sensible to apply such a provision only under a disclosure measure. By its nature, that is a specific request to the lawyer to provide the name and address of a client. The other provisions give rise to the anxiety that police officers and others may be found banging around in front of the chambers of solicitors or barristers looking for material, 99.999 per cent. of which will be privileged but certain documents among which will not be privileged. Unless the provisions are amended, that raises the risk of people ending up with a document that it was not intended that they should lay their hands on.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 12:30, 29 Ionawr 2002

The intention was to draft the provisions in a manner that is tailored to the particular order being pursued. That made common sense. Given that there are production orders and disclosure orders, the requirement to give up the name and address under the clause to which the hon. Gentleman referred is the same. That was a drafting decision to ensure that the provision was in place when necessary. He is making some valid points about how the measures should work most appropriately and whether there would be an escalation by leaving the requirement in one clause and not the other. If he agrees, I will make a commitment to reconsider the interplay of the two provisions and decide whether they could be covered better.

I am struggling to envisage what material would contain a name and address and no more than that. As it is extremely hard to do that, it might be better to fall back on the disclosure. If the hon. Gentleman would withdraw the amendment and allow me to consider the matter, I should be more than happy to do so.

Photo of Norman Baker Norman Baker Democratiaid Rhyddfrydol, Lewes

The Minister needs to consider the issue of the telephone number, too, and the issue of what constitutes an address. Is an address a home address, an accommodation address, a postal address or an e-mail address? That, too, requires tidying up.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

The hon. Gentleman makes some interesting points. I am grateful to the Minister for having undertaken to reconsider the matter, and I will be happy to withdraw the amendment.

I hope that the Minister will be able to satisfy us on the matter before Report, as otherwise I should feel constrained to reintroduce amendments Nos. 550 and 555, but probably not No. 560, as that is how my mind has been working in the light of what I have heard. I would not want the Bill to go to the other place and to

feel that I had not dealt with the matter by default. However, if the Minister will consider the matter, I am happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 474, in page 195, line 10, leave out 'may' and insert 'does'.—[Mr. Bob Ainsworth.]

Clause 337, as amended, ordered to stand part of the Bill.

Clauses 338 to 340 ordered to stand part of the Bill.