Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Lord Lester of Herne Hill

Wednesday 13th July 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, I support the noble Lord, Lord Pannick, in these amendments. I agree with him entirely that LPP is a very important right that is key to the application of the rule of law.

It seems to me that there are two iniquities that form a legitimate target for the interception of communications between lawyers and their clients. The first is where the lawyer is committing a criminal act, which already removes LPP in any event; it does not need any additional provision to declare that.

The second more difficult iniquity, which was adverted to by the noble Lord, is where the lawyer is the innocent instrument of a criminal act. I know that your Lordships’ House does not like anecdotes, particularly not from Members who are lawyers, but may I be permitted a very brief one, which was referred to by the noble Lord, to whom I told it in the car park a couple of nights ago? I defended a man who was arrested, properly, for stealing quite a large amount of explosive from a quarry store somewhere near Blaenau Ffestiniog in north Wales. He had quite an experienced solicitor from Dolgellau who later spent many years as a distinguished Member of another place. He was the duty solicitor who went to see the suspect in the police station—this was before computers. The suspect wrote out a message, which looked perfectly innocent, and asked him to pass it to the suspect’s girlfriend. The solicitor went back to his office, telephoned the girlfriend and passed on the message.

At 2 am the following morning the Metropolitan Police arrived at the suspect’s flat in the East End of London to raid it and take away all evidential material that they could find. There was not much. The carpets, rugs and wall hangings had been removed, as had every cup, saucer, knife and fork. The place had been deep cleaned, complete with disinfectant, and there was no evidence to be found. It is a good example, and a real one, of the way in which a solicitor acting innocently was an instrument of iniquity. It was valuable to the defendant because there was an issue about why he was stealing explosives, and really he could say what he wished when it came to his guilty plea for stealing the explosives because there was no contrary evidence. So it is obvious that, within clear limits, that iniquity should be dealt with.

I turn to the contentious powers, the third category dealt with by the noble Lord, Lord Pannick. I say to your Lordships, particularly to the Minister, that this raises difficult ethical issues for lawyers. Lawyers are entitled to know the answers to these ethical problems if the interception of communications between lawyers and their clients is to be permitted when the first two categories do not apply. I happen to have an office that overlooks a convenient garden square, which has a number of comfortable benches in it—a very attractive place to have a consultation with one’s client on a sunny summer morning or afternoon. However, will I be acting properly as a lawyer if I say to my client, “I think we should go out and have our consultation on the bench out there. There’s a risk that what we discuss while sitting in this very pleasant office will be intercepted, since they can do that and we have no idea whether or not they’re going to, so let’s take the safe course and go and sit on the park bench”? Is that an ethical approach from a lawyer or not? We are entitled to know how the profession should conduct itself.

I would go further than that ethical dilemma. What we are talking about is a balancing exercise. There may be a very small number of cases in which the answer to the question from the noble Lord, Lord Pannick, would be, “Yes, we did obtain some material which was of some use in a case or two over the years”, but, on balance, that will arise extremely rarely. Listening to communications between lawyers and their clients—a thankless task, almost by definition—is most unlikely on many occasions to reveal evidence useful to the authorities. Of course, they have many other ways of obtaining evidence.

I urge the Government to be extremely cautious about this. I urge them to listen not only to the considered views of the noble Lord, but to the carefully prepared and briefed views of the various organisations which have been referred to, including the Bar Council and the Law Society, and not to introduce a third type of non-existent iniquity just for the sake of convenience on the odd occasion that might arise.

[Lord Lester of Herne Hill]

My Lords, I can be remarkably brief—for a barrister. The answer to the question from the noble Lord, Lord Pannick, was given by Mr Justice Felix Frankfurter in a famous phrase in a case many years ago where he said that one should not burn the house down to roast the pig. As the Bill stands, this is exactly the problem. Taking a power of this breadth risks burning the house down to roast the pig.

I do not have the ethical problem referred to by the noble Lord, Lord Carlile of Berriew. Of course he should go and sit in the park in order to prevent the Orwellian nightmare of being snooped upon. That is perfectly ethical, but it would be outrageous if we, as members of the legal profession in Scotland, Northern Ireland, Wales or England, had to take that kind of precaution because of the hypothetical chilling effect of thinking that we were under surveillance.

I do not think it is necessary to take this power and I look forward to listening to the hypothetical or real examples that might be given to seek to justify where we now are. I thoroughly support this Bill, so I hope that the Government will give way on this because at the moment they are in an unattractive position.

Marriage (Same Sex Couples) Bill

Debate between Lord Carlile of Berriew and Lord Lester of Herne Hill

Wednesday 19th June 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords—

[Lord Carlile of Berriew]

My noble friend is able to offer free advice on this.

[Lord Lester of Herne Hill]

Yes, it comes free. When the noble Baroness replied to the noble Lord, Lord Tebbit, she may have had in mind not only what was said in the previous debate but the fact that at common law, as was said in that debate, it is quite clear that for a public authority to misuse its powers punitively is itself a public law wrong. The case quoted was that of Wheeler, but there have been others such as, for example, when Rupert Murdoch was penalised by a public authority so far as advertising was concerned. It was also when Shell was penalised because of a boycott. They were cases where public authorities were doing public law wrongs, and in my opinion that would apply equally at common law so far as this is concerned.

Justice and Security Bill [HL]

Debate between Lord Carlile of Berriew and Lord Lester of Herne Hill

Wednesday 11th July 2012 Lords Chamber

[Lord Carlile of Berriew]

My Lords, there are a few brave souls who are not lawyers still left in your Lordships’ House after 55 minutes of this debate. There are three to my right and I suspect that they are the ones who can recognise that there is quite a small pin with some lawyers dancing the rumba of closed material procedures on it and others doing the cha-cha-cha of PII. We owe it to them to give a comprehensible explanation of the difference and of how a proper outcome of this debate is reached. Given that, I suppose I can be forgiven for confusing the matter further by using two Latin phrases, as old lawyers like me tend to do. The first arises from hearing during this debate from the formidable duo of my noble friend Lord Lester and the noble Lord, Lord Pannick. I am not sure which way round they appear on the spine of the book on my bookshelf—whether it is Pannick and Lester or Lester and Pannick on human rights—but I suspect that age probably comes before beauty. I see the noble Lord, Lord Pannick, nodding in agreement. There is a danger of argumentum ad maiorem on any issue of this kind. Oh, dear. I give way to the older of the two.

[Lord Lester of Herne Hill]

I remind my noble friend that we are in the presence of the noble and learned Lord, Lord Woolf, who has banned Latin from use in courts. On this occasion it would be desirable if my noble friend spoke English and not some archaic antique language.

[Lord Carlile of Berriew]

The writ of the noble and learned Lord, Lord Woolf, certainly ran through the courts in those days, but I am not sure that the use of Latin has yet been banned in your Lordships’ House. I want to use what I regard as a very meaningful Latin phrase, which I read in the first administrative law textbook that I studied, de Smith’s Administrative Law, before Lester and Pannick reached the shelves. It was a seminal work and I remember the phrase “audi alteram partem” being an important part of what I learnt from that book. I am pleased to see the noble and learned Lord, Lord Woolf, nodding at least in recollection if nothing else.

Audi alteram partem is extremely important because it depicts that both sides should be heard wherever possible and it is presumed that both sides should be heard in a legal dispute. For those reasons, in shorthand, I support the succinctly moved amendment of my noble friend Lord Hodgson. For the reasons that he and my noble friend Lord Thomas of Gresford gave, it seems that there may be cases in which it is a perfectly legitimate tactic and it may be proved to be right in substance for a party other than the Government to apply for a closed material procedure—if CMPs are to survive this legislation.

I hope I am right in saying—and it was certainly evident from the way in which the amendment was moved by my noble friend Lord Faulks—that we are all trying to achieve the same thing with this group of amendments. I firmly believe that the draft legislation shows that the Government and my noble and learned friend on the Front Bench, the Advocate-General, are trying to achieve the same aim. The overriding objective, as we call it, is that civil proceedings should be decided justly and fairly for both sides. I therefore agree with the principle that for the overriding objective to be achieved the proceedings should be as transparent as possible and that hearings in secret in which both sides are not heard should be as rare as possible. I certainly agree with that part of what my wise and successful successor as independent reviewer of terrorism legislation, David Anderson QC, has said. I am a little puzzled as to why so many people seem to believe that PII is fairer than closed material procedures. My experience of PII is limited to criminal proceedings, but it is instructive.

In one case in which I was instructed—a lengthy police corruption case—it turned out that, unknown to me as leading counsel for a defendant, there had been a number of PII applications. Some two to three months into the case, the High Court judge trying it came into court and said: “I wish to hold a further PII hearing in relation to some documentation that I have seen to determine whether it should be disclosed to the defence”. He then retired into chambers with leading counsel for the prosecution, his two juniors and a solicitor from the Crown Prosecution Service. After a lengthy hiatus in which we drank a large number of cups of Nottingham Crown Court’s best coffee, the judge emerged in court and two redacted pieces of paper were revealed. They were rather important and my junior and I wondered why we had not been given these documents at the beginning of the trial. We felt that we should have been but, already many weeks into the trial, the prospects of the jury being discharged and the trial starting again were realistically zero. The same would apply in civil proceedings, where, as the noble Lord, Lord Pannick, has confirmed from his experience, which is different from mine, the same processes are followed. The public authority in question makes its application for PII, usually in secret, the other side—the claimant in civil proceedings—knows absolutely nothing about it, and a few weeks into the trial the judge may decide that he or she should review PII.

What the Government are offering through closed material procedures is not for both sides to be heard but, given the provision in this Bill for the appointment of special advocates, in reality it would become the norm for a special advocate to be appointed. Although not instructed by or on behalf of the claimant, the special advocate would represent the interests of the claimant. Having read a very large number of control order case transcripts, including a lot of closed transcripts, I happen to believe that special advocates have sold themselves rather short and that they were extremely successful, as results have shown, in a large number of control order cases. I was interested and encouraged to hear the noble and learned Lord, Lord Woolf, saying “Hear, hear!” as I made that statement.

Although one would not have a wholly transparent process, one would have a process in which highly skilled advocates, often leading counsel, would represent the interests of the litigants concerned. That looks to me much more like a transparent legal procedure. I do not think for one moment that these procedures, whichever we adopt, should become the norm. They should remain rare. I firmly believe that, although it is inevitable that in almost all cases a public authority will make the application, the decision that determines how the case progresses, if at all, should be made by a judge, having weighed up all the arguments placed before him or her. It is of course inevitable that the issue will be raised in 99 cases out of 100 by the public authority because the public authority is the custodian of national security and of secret material.

Although I can see grounds for amending the legislation, I remain unpersuaded that the cha-cha-cha is a more attractive dance than the rumba here. My noble friend wants to do a waltz, I think.

[Lord Lester of Herne Hill]

I would like to do a quick-step. Is my noble friend going to be sympathetic to Amendment 62 in order to improve his dance?

[Lord Carlile of Berriew]

I am sympathetic to any amendment which will improve the justice of decisions made. I am broadly sympathetic to Amendment 62. When I was independent reviewer of terrorism legislation, I frequently expressed the view that there should be stronger discussion between special advocates and those whose interests they represent. I remain of the view that the security services are over-sensitive, if not hyper-sensitive, about such communications. The short answer to my noble friend is yes.

I therefore invite the Minister to assist this Committee, particularly the non-lawyers here, by answering the fundamental question as to whether the Government have chosen a fairer procedure. Surely that is all we are trying to achieve. I say “that is all” but, if we achieve it, it will be a noble achievement indeed.

Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011

Debate between Lord Carlile of Berriew and Lord Lester of Herne Hill

Thursday 15th December 2011 Lords Chamber

[Lord Lester of Herne Hill]

I should say that I am not a learned Lord. Whether I am a noble Lord is another matter.

[Lord Carlile of Berriew]

Just a busy one.

[Lord Lester of Herne Hill]

If there is vexatious litigation, it should be struck out by the court as vexatious and nothing more should be done about it. What I am endeavouring to say—I am not doing very well because I am quoting from a detailed opinion, but I thought the House deserved to have that opinion before it because of the authority that it gives—is that the clarity provision was not necessary because a proper construction of the provisions of the Equality Act makes it absolutely clear that any discrimination claim, either about the provision of services or about the public sector duty, would be doomed to failure.

There is one further point. In the case of Pepper v Hart, the House of Lords in its judicial capacity held that, were there any ambiguity in legislation, one could have regard to the parliamentary record to resolve the ambiguity. Quite apart from Section 13 of the Human Rights Act 1998, which the noble Lord, Lord Pannick, referred to, I have no doubt that, were there any ambiguity—in my view, there is none whatever—then the Supreme Court and the lower courts would have regard to statements made by the noble Baroness, Lady Royall, when she was leading for the previous Government, to the assurances given by the former Solicitor-General Vera Baird QC and to the statements that will be given shortly by my noble friend the Minister today. Those statements will all be one way. They will all indicate the true intention of the legislation. Therefore, were there to be any ambiguity, it would be resolved, if it had to be, judicially.

In my view, which is the same as that of the noble and learned Lord, Lord Falconer, the noble Lord, Lord Pannick, others who have spoken, the Church of England’s legal advisers and others, there is no conceivable doubt that a challenge would be hopeless. If, as a discrimination lawyer with 40 years’ experience, I were asked what my views would be about this, I would say, “You have not got a snowball’s chance in hell”.

Terrorist Asset-Freezing etc. Bill [HL]

Debate between Lord Carlile of Berriew and Lord Lester of Herne Hill

Monday 25th October 2010 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I have added my name to the noble Lord’s amendment because I am a member of the Joint Committee on Human Rights and we dealt with the issue in paragraphs 1.41 to 1.44 of our latest report. Indeed, together with the noble Lord, Lord Judd, I was a member of the previous Joint Committee on Human Rights, when we made similar recommendations.

In our report, we paid tribute to the Government—it is important that tributes should be paid—for the way in which, during the passage of this Bill, they have moved in a human-rights compliant direction. One of the many ways in which they have done so, as we report at paragraph 1.42, relates to the two additional safeguards that have been included:

“First, there is a requirement that the Treasury report quarterly to Parliament about the exercise of the powers. Second, that the Treasury is required to appoint a person to conduct an annual ‘independent review’ of the operation of the asset-freezing regime, reporting to the Treasury which lays a report before Parliament”.

The Joint Committee then states at paragraph 1.43:

“Safeguards which enhance democratic accountability for the exercise of counter-terrorism powers are clearly to be welcomed from a human rights perspective. Our predecessor made a number of detailed recommendations for improving such safeguards, including that the post of statutory reviewer of terrorism legislation should be appointed by Parliament and report directly to Parliament, on the grounds that a reviewer with a supporting secretariat within Government might suffer from a perceived lack of independence from the Government”.

The committee therefore recommended that,

“consideration be given to amending the Bill so as to give Parliament the power to appoint the proposed independent reviewer and for the reviewer to report directly to Parliament, in line with earlier recommendations concerning the statutory reviewer of terrorism legislation”.

Like the noble Lord, Lord Judd, I pay tribute to my noble friend Lord Carlile for the work he has done as reviewer. Nothing I am about to say should be taken in any way as a criticism of his fine work. In previous debates, I have made the case that important public appointments should be made at least with the advice and consent of Parliament, not only by the executive branch. I am not suggesting that this is an occasion when that principle needs to be slavishly followed, but it is one that has a great deal to commend it. In other states that I can think of in Europe and beyond, it is regarded as good governance.

I am not in favour if disfiguring Bills with too much unnecessary detail, and there may well be other ways than this amendment of accomplishing the objective indicated by the noble Lord, Lord Judd: that is, to enhance public confidence in the perceived independence of the reviewer.

When for 18 months under the previous Government I acted as the independent unpaid adviser to the right honourable Jack Straw, Minister for Justice, one of the requirements on which I insisted, and which the Cabinet Office strongly resisted, was that I should not have an office in the Ministry of Justice and that I should not have a secretary appointed within the ministry. The Cabinet Office could not understand why I took such a strong position. I said, “Well, I am meant to be the independent adviser and it seems to me important that, as a matter of public confidence, I do not have staff from, or an office located in, the ministry”. In the end, as I said that I would not do the job otherwise, the Cabinet Office had no alternative but to comply.

I appreciate the reasons why that has not happened in the case of my noble friend Lord Carlile, and I can see arguments of convenience about security and confidentiality that would point in the other direction. However, if I am allowed, I would say to the noble Lord’s successor that, whatever the fate of these amendments, I very much hope arrangements will be made to enhanced the perceived independence of the reviewer in order to enhance public confidence. It does not have to be done in the way suggested in this amendment: it can be done administratively, provided that sensible arrangements are made. So I support the objective of the amendment, and although I have no doubt that it will not be pursued to a Division today, I hope that the principle that the Joint Committee on Human Rights has made several times will be appreciated within the Executive. I am sure that they will appoint an admirable person without the need for parliamentary intervention, although I would prefer some parliamentary involvement in the process. That person, whoever is appointed—it is a matter of judgment and character—needs to act in a way that will enhance public confidence.

[Lord Carlile of Berriew]

My Lords, I fear that it would be negligent if I did not take a little bit of the House’s time to comment on the amendment of the noble Lord, Lord Judd. I thank him for declaring my interest so generously—I mean that genuinely. Even if there are any implicit criticisms of the way in which I have conducted myself during my nine years and 25 days as independent reviewer of terrorism legislation, I have been around the political world long enough to take them on the chin and respond to them.

I am slightly surprised that I was not asked to give evidence to the Joint Committee on Human Rights prior to its most recent report. Perhaps it thought that I might have disagreed with it far more than I do, because, basically, I do not disagree with what it has said.

I remind the House how the process developed. There were a number of distinguished independent reviewers of terrorism legislation who dealt with Northern Ireland. That had become a significant but not particularly time-consuming role prior to 11 September 2001. By one of those extraordinary coincidences of life, I was approached on that very day, before the twin towers were hit in New York, and asked to carry out a function which I was told would take only a few days per year. Later during the day, after the twin towers had been hit, I asked the Home Secretary’s Private Secretary if the Government now wanted someone competent to do the job. The response was that they were happy for me to do it, and I have done it ever since.

I tell that story because it is important to remember that the role of the independent reviewer has been evolving all the time, just as counterterrorism law has been evolving all the time. I am sure that the previous Government would acknowledge that, from time to time, they made mistakes about counterterrorism law. I, as independent reviewer, made mistakes in reviewing certain aspects of counterterrorism law. I suspect that the present Government—whom I support politically, at least, although I am neutral for this purpose—will also make mistakes. It is a very difficult area.

The whole process of reviewing started in my case from a relatively unsophisticated position and has developed into a much more demanding role. On the question of independence, I should say that it really depends whom you speak to. I fear that I may have been cited on most sides of almost every argument about counterterrorism. If that is evidence of independence—and it may well be—I am satisfied with that position.

About office and matters of that kind, I remind those who have spoken in this debate and may be interested in it that I have always conducted the role of independent reviewer of terrorism legislation from my chambers, which I have paid for allowing me to carry out the role there. I had better give them a plug —9-12 Bell Yard. My chambers, as one would expect of a good set of barristers’ chambers, has been prepared to put up with that inconvenience—possibly because I was head of chambers for six and a half years of the time that I have been doing it.

I have had an office in the Home Office, and I am glad to see my noble friend Lord Thomas of Gresford here, because on one occasion he castigated me in this House for having an office in the Home Office. He was kind enough to acknowledge afterwards that he might have overlooked the fact that in my office in the Home Office, which is situated in the Office for Security and Counter-terrorism, I have a room, quite an ample room—it even has a sofa, which is quite hard to get these days in the Home Office—which I use only because I have to keep documents in a secure place. Keeping documents in my chambers or, even worse, in my home, is insufficiently secure.

I confess to your Lordships that on my not-very-frequent visits to that office—perhaps, on average, I go there about once a fortnight—I hold meetings, but it is convenient to meet Home Office officials, police and others whom one needs to meet in a secure place in precisely that, a secure place. It would be far more expensive for government if such meetings were to take place elsewhere. Although I entirely support the notion of physical and intellectual independence being clear, it is not so easy in practice.

The Bill proposes that there should be a reviewer of yet another aspect of counterterrorism law, of which there has not been an independent reviewer up to now. It makes sense that whoever succeeds me after the end of this year—my appointment having been extended, after three three-year terms, for a very short period so that a successor can be appointed and find his or her feet—should be able to carry on as independently as I believe that I have, although I recognise that not everybody would agree with that, and should have the secretariat with which to do so.

Terrorist Asset-Freezing etc. Bill [HL]

Debate between Lord Carlile of Berriew and Lord Lester of Herne Hill

Wednesday 6th October 2010 Lords Chamber

[Lord Lester of Herne Hill]

I agree with everything that has been said by everyone—including the congratulations to the Government—and I can therefore be extremely brief. I rise not to hear the sound of my own voice but to make two points. First, the Joint Committee on Human Rights was formed only a couple of weeks ago and will consider this debate and the amendments when it meets next week, after which it will report. As a member of the committee, I feel that that is a further reason for supporting what has been said by three contributors—my noble friend Lady Hamwee, the noble Baroness, Lady Noakes, and the noble Lord, Lord Myners—about the importance of being able to return to these matters on Report. Although the Constitution Committee produced an important report, I am sure that Members of the House would like to be informed about the human rights implications.

Secondly, the original Explanatory Notes on the Bill were rather brief in dealing with the human rights implications. I believe that a more detailed human rights memorandum was submitted by the Treasury on 13 August. I have asked in the Printed Paper Office for a copy but it does not have one. Will the Minister indicate the need for that to be made available before final decisions in this House are taken? As it is not there now and I have not had the benefit of seeing it, I certainly do not feel as well informed as I would like to be.

Lastly, could the Minister say something about the important decision of the European Court of Justice in the Kadi No. 2 case last week, which found in favour of the applicant in a terrorist asset-freezing context and insisted on writing strong safeguards against abuse into the United Nations framework? Again, the House needs to be informed about that in considering on Report the implications of the most welcome amendments that have been put forward but which have been subject to powerful criticism and questioning by members of the committee.

[Lord Carlile of Berriew]

My Lords, I declare an interest as the shortly outgoing independent reviewer of the Terrorism Act 2000 and some connected legislation. I, too, congratulate the Minister, my noble friend and the noble Lord, Lord Pannick, on the work that has been done to produce the outcome that we have today. We are concerned here about aspects of the public interest and particularly national security. There is a clear paramountcy in ensuring that assets are not used to fund terrorism; the issue is the proportionality of the efforts undertaken to prevent that from happening.

I am sorry that I was not able to be here to speak at Second Reading. I shall simply add one sentence to the few remarks that I wish to make on this amendment, which is ever so slightly out of order. I note that Clause 25 makes provision for an independent review of the provisions contained in the Bill. It is not inevitable that the same independent reviewer as reviews other counterterrorism provisions should review these provisions, but for efficiency and consistency it would seem sensible that the same person should do it—it will not be me because I shall be going out of office shortly—because there are similar issues to be considered in relation to both pieces of legislation.

I agree with those who have said or implied that consistency of standards of proof is required wherever possible and that those standards should be as high as is proportionate and consistent with the national interest and the issues that we are concerned with. It is my view that reasonable belief might be transliterated elsewhere in raising the standard required in other aspects of counterterrorism legislation. I certainly welcome it.

The noble and learned Lord, Lord Lloyd of Berwick, raised early in this debate the issue of orders being made by judges rather than by the Executive. I do not have a very strong view about that, save to point at the evidence. Like it or not, if one looks at the control orders regime, one sees that judges have shown themselves to be extremely robust about the orders and the conditions applicable to them in rejecting executive acts or amending those that have taken place. That separation between an order made by the Executive and a review by the judiciary on whatever basis seems to work and does not need to be changed. There is a tried and tested process whereby judges, with the help of special advocates—I admit that their activities could be improved if greater assistance were given to them—reach decisions that robustly protect the rights of the individual.