Investigatory Powers Bill

Lord Beecham Excerpts

Wednesday 13th July 2016 Lords Chamber

[Baroness Hamwee]

My Lords, from our Front Bench I support these amendments, although I take the point about the innocent conduit—if I can put it that way—which becomes more intriguing as one thinks about it. The noble and learned Lord, Lord Mackay of Clashfern, said that if the security services could use another means they would do so. I want to bring into the mix a point that I made when we debated Clause 2, which is that that requirement is not absolute: they would have to have regard to other means and whether those could reasonably achieve the end. This exercised me in a conversation with the Minister and continues to do so, so it is right to bring it into the mix.

[Lord Beecham (Lab)]

My Lords, a range of subjects appears to be covered both by the amendments and by today’s debate. I think we are all looking forward to the noble and learned Lord’s response to the issues of principle, which it is clear are very much in your Lordships’ minds. I draw particular attention to the report of the Joint Committee on Human Rights, which went so far as to say that,

“we do not see the need for a power to target lawyer-client communications”,

and that the amendment it sought would remove that provision from the Bill because it was deemed unnecessary in view of the iniquity exception. It would be interesting to hear the Minister’s reaction to that, but much of what we have heard today has been about the detailed workings of the Bill.

One of the main substantive issues is the position of the judicial commissioner in whatever processes ultimately result—that seems to me the critical aspect on which we would welcome some guidance from the Minister on the Government’s intentions. If it is still deemed necessary in some form or other to deal with the problem, as the Government see it, of legal privilege, there must surely be at least the safeguard that the decision should be made by a judicial commissioner rather than by a civil servant or Minister of the Crown. That measure of independence and of judicial experience seems fundamental to any acceptable proposal to move along the lines that the Government seek to pursue. Again, it would be helpful if the Minister were in a position today to clarify whether, whatever other details might be subject to debate, that important principle is one that the Government accept.

[Lord Brown of Eaton-under-Heywood]

I was not intending to say anything this afternoon, let alone on this amendment, but following what the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Beecham, have said, it occurs to me that if one widens out the provision that is the subject of Amendment 48 to introduce some essentially non-legal consideration, one would have to make it subject also, as routinely across this legislation, to ministerial approval. They must be answerable for that non-legal aspect. I therefore suggest that this might be a situation in which one should have two primary decision-makers, not therefore judicial oversight but judicial primary decision-making on the legal aspect—such as whether it is in truth a legal professional privileges situation and whether, in so far as criminal purpose is relied on, that is satisfied. However, in so far as the wider terrorism situation is being addressed, the justification for all that should initially be put at the ministerial door as well.