|Proceeds of Crime Bill
Mr. Ainsworth: 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.
Mr. Grieve: 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?
Mr. Ainsworth: No, section 2(9). If I said section 29, it was unintentional.
Column Number: 1216Vera 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.
Mr. Ainsworth: Yes. Section 2(9) of the Criminal Justice Act 1987 states:
Mr. Grieve: 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.
Mr. Ian Davidson (Glasgow, Pollok): Free access?
Mr. Grieve: Yes, access without fear of disclosure or revelation. Of course, access could be free in money terms, but it may also be very costly.
Mr. Ainsworth: 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.
Mr. Grieve: 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
Column Number: 1217production 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.
Mr. Davidson: 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.
Vera Baird: 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:
Column Number: 1218The 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.
Ian Lucas: 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:
Mr. Grieve: 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:
Vera Baird: 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.
Mr. Stinchcombe: Is the Minister saying that the provision ensures that information is provided, or is he saying that someone could be compelled to produce
Column Number: 1219the 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?
|©Parliamentary copyright 2002||Prepared 29 January 2002|