Lord Carlile of Berriew (CB)

My Lords, I will speak to Amendments 18 and 20 standing in my name. I apologise for my unavoidable absence from the Second Reading debate. At the heart of this certainly merited Bill lies a simple but vital principle: public authorities and public officials must tell the whole truth, as soon as possible. The duty of candour is intended to ensure that those given public responsibilities assist the search for truth rather than impede it. However, as presently drafted, there appears in the Bill to be a significant gap or at least an opaque ambiguity. A person who possesses critical information may seek to avoid disclosure by relying on what is called the privilege against self-incrimination. That privilege protects individuals from being compelled to provide evidence that could subsequently be used to secure their own conviction. It is a component of fairness in the criminal justice system, and I make no criticism of that privilege in general terms. However, the privilege was never intended to become a shield behind which public misconduct, institutional failure or the concealment of documents and the truth can be allowed to lurk. These straightforward amendments strike a careful and proportional balance between the competing principles I have just described. The amendments provide, first, that compliance with the duty of candour must occur notwithstanding that the information disclosed may tend to expose the discloser to criminal liability on the face of it. In other words, a person cannot simply refuse to answer because the answer may on its face be personally incriminating. It is all too easy to make an assertion of the privilege against self-incrimination, and it is very difficult, in short order at least, to show that it is incorrect and unreasonable. Secondly and critically, the amendments would provide protection for the individual by rendering the compelled disclosure inadmissible against that person in criminal proceedings that might otherwise ensue. The information must be disclosed but it cannot itself be used as the evidential basis for a prosecution. That means we achieve the disclosure, but we sustain the privilege against self-incrimination. These provisions are neither novel nor radical. Parliament has repeatedly accepted comparable proposals where the public interest in obtaining full and frank disclosure is considered sufficiently important, as surely it must be under this Bill. For example, under Section 2 of the Criminal Justice Act 1987, the director of the Serious Fraud Office may compel a person to answer questions or provide information that is relevant to a fraud investigation. Thus, a witness cannot refuse to answer on the ground that the answer may be self-incriminating. However, under those provisions, the answers obtained under compulsion are generally inadmissible against that person in criminal proceedings—except in limited circumstances such as prosecution for false or misleading statements, which are separate offences. Other examples are to be found in the Financial Services and Markets Act 2000 and in competition and regulatory investigations. I will not bore the Committee by providing examples, but if the Minister requires chapter and verse then I will give them to him with pleasure and in complete detail. So the model proposed in these amendments is not novel, nor should it be controversial. In each of the areas I have referred to, Parliament has concluded that the public interest requires individuals to answer questions, disclose information and tell the truth, while protecting them by preventing the direct use of those compelled answers in criminal proceedings. These amendments, therefore, simply apply that familiar and well-established balance to the statutory duty of candour. I suggest that this issue is particularly important in the context of the Bill. Many of the cases that have inspired calls for a statutory duty of candour have involved years, sometimes decades, of delay before the truth emerges. One recurrent obstacle has been the reluctance of individuals, well advised by their lawyers, to disclose what they knew because of concern about personal consequences, especially prosecution. The public interest in uncovering the truth about deaths, serious injuries, miscarriages of justice, institutional failures and abuses of power demands a stronger mechanism. Indeed, in one case in which I appeared as counsel, which was part of the “Cardiff Three” case—a true debacle in the criminal law—the privilege against self-incrimination formed part of the background, by which police officers who had committed egregious wrongs against the defendant, witnesses and the victim’s family were able to hide behind the privilege against self-incrimination. Families seeking answers should not face a situation in which the very individuals best placed to explain what went wrong can simply choose to remain silent. Equally, those individuals should not be deprived of the fundamental protection against their compelled words being used to convict them.