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("and the time specified for the purposes of paragraph (f) must allow a period for compliance which is reasonable in all the circumstances.").

The noble Lord said: My Lords, I am sure that this amendment will be as uncontroversial as the previous amendment. The noble Earl, Lord Northesk, tabled a similar amendment at Report stage, which I accepted in principle. I undertook to bring back our own amendment which is the result of that further consideration.

We said previously that, in practice, notices will set out a reasonable time for compliance. This amendment puts that requirement on the face of the Bill. What constitutes a "reasonable" time will, of course, vary from case to case. It is for the person giving permission for a Section 49 notice to be served properly to weigh up, having given the matter very careful thought. We have set out in the initial draft code of practice that any timing considerations will need to be fully justified. The code will be fleshed out, as I said earlier, when we receive further comments from interested parties.

There is a safeguard against unreasonable demands being made in Clause 53(4)(a), which provides a statutory defence to the offence of failure to comply where it was not reasonably practicable to do so in the time required by the terms of the notice. Given that this amendment was originally inspired by noble Lords opposite, I am sure that it will be welcomed by your Lordships' House. I beg to move.

The Earl of Northesk: My Lords, I welcome the amendment and thank the Minister for his generosity in tabling it.

Lord Phillips of Sudbury: My Lords, as we do from these Benches.

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 17:



("( ) A notice under this section shall not confer any right to production of, or access to, items subject to legal privilege.").

The noble Viscount said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 29 to 33 and Amendment No. 35. We debated at Report stage legal privilege and its protection. At the time the Minister indicated that the Bill would not detract from the position of legal privilege in the area of admissibility of evidence. The common law would apply. We accept that that may offer some protection in the arena of the courtroom. However, it does not address the issue of access to material which is subject to legal privilege.

Since the Minister's reply, we have had time to study the Data Protection Act, referred to by my noble and learned friend Lord Fraser of Carmyllie, and Section 18 of the Proceeds of Crime (Scotland) Act 1995. They

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recognise the importance of confidentiality in the solicitor-client relationship. Such communication should be privileged at all stages in the legal process. Provision is made on the face of the legislation to the effect that access will not be given to material which is subject to legal privilege.

If it is deemed appropriate to recognise the common law in this way in these two Acts, it is difficult to envisage why similar safeguards should not be incorporated in the present Bill. At Report stage the Minister correctly identified the protections available under the Police and Criminal Evidence Act 1984. I am advised that that Act does not extend to Scotland. Therefore, there is concern that the Minister's comments do not sufficiently take account of the Scottish situation.

That brings me to the amendments which I have tabled and which largely concern Scotland. Amendment No. 17 provides that there should be no right to require the disclosure of items subject to legal privilege under Clause 49. As the Minister knows, Article 8 of the European Convention on Human Rights enshrines the right to privacy. The law is there to protect the relationship between solicitor and client and has made provision for the doctrine of legal professional privilege. To preserve that relationship and ensure that communications are privileged, provision should be made on the face of the Bill to the effect that a notice under Clause 49 will not extend to the disclosure of information subject to legal privilege.

Amendment No. 29 extends the defences which will be available to persons failing to comply with a notice to take account of the doctrine of legal privilege. We believe that the Bill should make available a defence which takes account of the doctrine of legal privilege in circumstances where a legal adviser fails to comply with a notice.

Amendment No. 30 concerns medical confidentiality. I understand that the BMA is concerned about patient confidentiality, particularly as the NHS net will be an Internet service provider within the terms of the proposed legislation. That will place particular and specific duties on those responsible for the NHS net. The BMA is particularly concerned about the implication of these duties on the handling of confidential, named patient data. I understand that some of that is to be covered in a code of practice. But perhaps the Minister can help us as to aspects of confidentiality in the patient-doctor relationship and explain how it is to be protected by the code of practice.

The next amendment deals with the offence provisions in relation to tipping off and their application to professional legal advisers. The amendment inserts a new subsection reflecting the provisions currently contained within the Terrorism Bill which we believe affords an adequate protection for the concept of legal professional privilege.

Amendment No. 32 is concerned also with the tipping-off provisions in Clause 54 so that they do not extend to the disclosure of information subject to legal privilege. That is acknowledged in other legislation which incorporates tipping-off provisions.

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Amendment No. 33 seeks to clarify situations in which information is deemed to have been obtained by a legal adviser in privileged circumstances. There has been debate about situations in which information will be considered to have been obtained in privileged circumstances. Clause 54 presently provides the circumstances in which legal privilege cannot be used as a defence to an allegation of failure to comply with a notice requiring disclosure. The exception to the general rule of legal privilege exists in situations where information comes to the adviser with a view to furthering a criminal purpose. The phrase,


    "otherwise than with a view to furthering a criminal purpose",

has been the subject of consideration by the courts. It is unclear who must have knowledge of the criminal purpose.

The Law Society of Scotland has advised me that legal professional privilege could not be claimed in situations where the adviser himself was in possession of the information with the intention of furthering the criminal purpose. However, if the adviser had no knowledge of the criminal purpose, the doctrine could still apply.

So the proposed amendment adopts the definition of legal professional privilege contained in Section 33 of the Criminal Law (Consolidation) (Scotland) Act 1995. We believe that it is helpful to have similar statutory definitions of the concept of legal professional privilege and the amendment seeks to produce a harmony between those provisions.

The last amendment in the group provides a definition of the term "professional legal adviser" so that it is given on the face of the Bill to avoid any ambiguity as to what is meant by that term and when the doctrine of legal professional privilege can be invoked. It is necessary also to take account of the directive 98/5/EC--the EU Lawyers Establishment Directive--when framing this definition.

At an earlier stage, my noble and learned friend Lord Fraser of Carmyllie raised issues about the Data Protection Act 1984. The Minister said on a previous occasion that the common law is clear cut. If so, why was it necessary to include Section 31(2) in the Data Protection Act?

The Minister said that he believed that there are adequate safeguards for the legally protected material and referred to the code of practice. Of course, a code of practice is just that. That is all it is. It is there for guidance--nothing more. Account must be taken of it, but it is not the same as having a provision on the face of the Bill, whether by primary legislation or by order.

The Minister offered to write to my noble and learned friend Lord Fraser of Carmyllie. I realise that, in the short time that has been available in our rather hurried Session before we all go on holiday, that has not been possible. Therefore, it is important that the Government should answer the queries which my noble and learned friend and I have raised. I beg to move.

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5 p.m.

Lord Bach: My Lords, we enjoyed several short debates on Report on the protection due to legally privileged material. Our position now is the same as it was then: some of these amendments are unnecessary because the protection they seek is already in the Bill; and other amendments seek to do things which we believe can be done more precisely in the code of practice and with more consultation. But I welcome the opportunity shortly to restate our position on this important subject.

First, we recognise the important status of communications between lawyer and client. Those communications need proper protection, not absolute protection because of the risk, in any sector and any profession, of abuse, but robust protection none the less.

Perhaps I may expand on that. Our starting position is that legal communications should not, in the normal course of law enforcement, be the subject of targeting by police and other agencies. But that is not all. It is also important that police and others are aware of the situations where they may come across legal communications inadvertently and know how to deal with those cases too.

Amendments Nos. 17, 29, 30 and 32 relate to no obligation to disclose legally/medically privileged material. Amendments Nos. 29 and 30 would ensure that a key cannot be required if its disclosure means a lawyer or doctor giving access to legally or medically privileged material. We agree with the sentiment. But we do not think the amendments are quite right, and we do not believe they are necessary. They are not right because they do not take into account the case where a key protects both privileged material and material of a quite different nature which is not privileged. In that case, and remembering that disclosure of a key is going to be unusual in any event, it may make more sense for the key to be disclosed but for law enforcement to be inhibited from looking at the privileged material.

The amendments are not necessary because nothing in the Bill reduces the protection given in law to privileged material. If it is protected from a disclosure requirement now, whether that is by virtue of English, Scots or Northern Ireland law, a notice under the Bill will not override that protection. The code of practice makes that clear. The Bill applies only to material that comes lawfully into the possession of law enforcement. In most circumstances, legally privileged material simply will not find itself in this position.

There is, of course, the question of exactly how far legally privileged material should be protected; for example, if there is no statutory bar on its being accessed by means of some other power, or where its status only becomes clear on decryption. As I said on Report, and repeat, we look forward to getting that question right in the codes of practice, in consultation with the professional bodies in all parts of the United Kingdom.

Amendments Nos. 17 and 32 are similar. Amendment No. 17 prohibits access to any legally privileged material. Amendment No. 32 focuses on the

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position of the lawyer confronted by a Section 49 notice. Again, we think they envisage a situation that for the most part simply will not exist. What is the underlying power that would enable the police to say to a lawyer, "Show us the communications you have had with your client"? If there is no such power, Part III of the Bill presents no danger to legal confidentiality.

We agree, however, that we need to get right both the procedure and the precise degree of protection for when a Section 49 notice does encroach on to legally privileged material, for whatever reason. We look forward to doing that, with help from others, in the code of practice.

Amendment No. 31 recrafts the protection given to professional legal advisers against the tipping-off offence. In principle, we do not disagree with the amendment. But we have looked at it closely and do not believe it adds anything to the Bill that is necessary. The amendment covers legal advice from the lawyer to the client or client's representative. So does the Bill, in Clause 54(6) and 54(7). The amendment covers advice in the context of actual or contemplated proceedings. So does the Bill. The amendment covers all other legal advice as well while the Bill at Clause 54(6) limits that to advice about the effect of Part III of the Bill. We believe the limitation in the Bill to be justified. A person served with a disclosure notice containing a secrecy requirement may well need legal advice on what the notice means and its consequences. The Bill allows for that, and the standard form of notice, which will be in the code of practice, will encourage him to seek legal advice.

Finally, the amendment appears to make the protection for legal advice an exception to the offence rather than a defence. Perhaps I may make two points. First, it is quite common for these provisions to be framed in terms of a defence. All the recent tipping-off offences do it in that way. We would find it difficult to accept an argument that that imposes a difficult or unjust burden on the legal adviser, remembering that the defence need only be established on a balance of probabilities, and that the facts supporting the defence are comfortably within the lawyer's reach. Secondly, we do not think that the amendment changes the position. That is because the general rule of law is that statutory exceptions to a criminal defence, available in special circumstances or by persons of specified classes or with special qualifications, are for the defence to prove.

Much of what I have had to say concerns the codes of practice. We are placing much emphasis on them. There is legislation in which some statutes explicitly protect legally privileged material. Here, the precise protection due to this material requires careful consideration. It cannot fall outside it altogether but it needs to be protected. We are convinced that our codes of practice are best placed to achieve that. Why do we say that? Codes of practice are, in effect, much more flexible than words that appear on the face of a statute. At present, we are negotiating with various organisations: legal, medical, spiritual and journalistic, to name but a few. The point is that

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safeguards must be specific and drafted in close consultation with representatives of those sections of those professions. We have started the process and had contact with representatives from all those organisations, including the BMA. We look forward to continuing the discussions so that we can put sufficient and appropriate safeguards in the code of practice.

The noble and learned Lord, Lord Fraser of Carmyllie, asked about PACE. He is right; PACE does not apply in Scotland. However, there are other common law protections given to legal material in Scotland. It is not for me to say whether such protections are better or worse than protections in England, nor, we would argue, a matter for the Bill. The key points are that the Bill does not subtract from legal protection given to legal material, whether such protection is statutory or non-statutory. The code of practice will say what should happen if, by virtue of these powers, law enforcement comes across legally privileged material. We repeat what we have often said: we intend the codes to provide tough safeguards against legal privilege being undermined.

We do not agree, should the argument be put forward, that codes of practice are somehow useless and not as good as having the words on the face of the statute. The codes to the Police and Criminal Evidence Act in England and Northern Ireland have done a great deal to regulate and govern police practice to the benefit of citizens.

Clause 72(1) imposes a legal duty on police officers and others, including in Scotland, to have regard to the codes of practice. Relevant provisions in codes of practice not only are, but must be, taken into account by courts when dealing with these matters. I repeat our willingness, indeed, our desire, to have full consultation on the codes of practice.

Amendment No. 35 adds a definition of "professional legal adviser". There is no definition in the Bill as presently drafted. We do not believe that one is necessary. There is no definition in other similar provisions creating tipping-off offences. However, we are confident that the term "professional legal adviser" covers all the things listed in Amendment No. 35.

The noble Lord asked a question about the National Health Service. He was good enough to give me advance warning of the point. At this stage it is impossible to say which Internet service providers will be subject to Clause 12 obligations. We have debated at considerable length how Clause 12 will work. Perhaps the best assurance I can give him is that the grounds for interception are extremely limited. Procedures for dealing with sensitive or privileged material will be addressed in the code of practice.

I am grateful to the noble Viscount for having tabled the amendments today and for a good debate. However, we do not believe that the amendments should be pressed.

5.15 p.m.

Lord Phillips of Sudbury : My Lords, before the Minister sits down, perhaps I may ask a question. In

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the light of the importance of the consultation on these difficult issues--which are extremely difficult; particularly, I suggest, as regards foreign lawyers who will be much affected by the Bill--is it the normal pattern of consultation to have a meeting to discuss such issues? Given the complexity and the importance of the issues to be dealt with on this aspect of the consultation, I am sure that the Law Society and the Law Society of Scotland would desire such a meeting.


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