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.