Investigatory Powers Bill

Lord Mackay of Clashfern Excerpts

Wednesday 13th July 2016 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I will not dare to try to better the arguments already made in this debate but will only emphasise two things with regard to the amendments to which I have added my name.

The first, which has already been mentioned by the noble Lord, Lord Pannick, is that this so-called privilege is of the utmost importance to clients—the description always sounds as if it is your privilege rather than ours. I speak as the former chair of the Legal Services Consumer Panel, where we represented the interests of those who—often in times of trouble—need the help and advice of a lawyer.

We know that very many people who could do with legal assistance do not go, partly because they do not know that they need it, partly because they do not know how to get it, partly due to cost, but also because it is all a bit too intimidating. It often falls to the lawyer to reassure them not just about the particular case, but that what passes between them will be absolutely confidential and—for example, in the case of a domestic break-up or a child’s custody—will never be revealed to their former partner or others involved, including agencies of the state.

Therefore, this confidential relationship is key to people getting good advice and advocacy and a fair hearing, as well as being key, as we have already heard, to the role of our lawyers and the rule of law. However, we also understand that there will be occasions when some details of this relationship might be caught by powers included in the Bill. We look for some assurance that the maintenance of clients’ confidence is absolutely understood, and that any such occasions will be as limited as we have heard, and only after proper due process.

We look forward to hearing in the Minister’s response the Government’s current thinking and perhaps some indication of what they will be willing to bring forward on Report.

[Lord Mackay of Clashfern (Con)]

My Lords, I put my name to these amendments. I am grateful to the noble Lord, Lord Pannick, for the clear exposition he has given of the reasons for them, and I have listened to the anecdotal evidence provided by the noble Lord, Lord Carlile.

I think we are all agreed that proper legal professional privilege is vital to the rule of law. It is not a privilege of the legal profession but of the client, as the noble Baroness said. However, the illustrations show that some other factor may be buried in proper legal confidentiality. The example of information being passed on innocently is one such. It was not part of the legal professional privilege conversation but an adjunct to it—“Please pass this on to my girlfriend”. Another possible illustration, which I have discussed with the Minister, is that the location of the client might be mentioned incidentally. Where he happens to be is not crucial to the advice he gets or the information he gives in order to get it, which is, of course, the real reason the conversation is protected.

--- Later in debate ---

[Lord Thomas of Gresford]

The first thing I did was to instruct a solicitor to go and see him.

[Lord Mackay of Clashfern]

One possible approach would be to consider what is meant by legal professional privilege. It is a privilege of the account that the client gives to the solicitor of the facts on which the client wishes to be advised, and the advice that the solicitor gives in return to that application. A statement of where, for example, the client is at that particular time is not part of either of those. Therefore, that is not, strictly speaking, covered by legal professional privilege at all. This is a way of looking at this matter that is slightly differently from trying to make conditions on legal professional privilege.

[Lord Pannick]

I thank all noble Lords who have contributed to this debate, particularly those who have provided anecdotes as to their previous experience. I also thank the noble and learned Lord, Lord Keen, because I think the whole Committee recognises that he and the Government are striving to find the right answers to what are undoubtedly very difficult problems. There is a balance between maintaining legal professional privilege and ensuring the security of this country.

I start from the same place as the Minister: legal professional privilege is absolutely fundamental to the rule of law; there is no dispute about that. It seems to me, therefore, that there has to be a compelling justification for allowing intrusion by the authorities into matters that are genuinely covered—not iniquity—by legal professional privilege. The Minister has been very frank: in the past 16 years, there has been no experience of the ability to intrude into genuine legal discussions being of any value to the security forces. I therefore wonder whether it is necessary to have such a power. Its existence, particularly if we were to enshrine it in this Bill, would have—it does have—a damaging effect on clients’ confidence that they are speaking to their lawyers in genuine confidence.

The example the Minister gives—it is a real example, at least in principle—is that the authorities may learn the location of the client, which may tip them off and enable them to prevent a terrorist outrage. It seems to me that that is not part of the privileged material but incidental to it. An acceptable way forward may be that the authorities would have to show and satisfy the judicial commissioner—and maybe the Secretary of State as well—that there is compelling and exceptional evidence of a real threat to life, such that they should be able to listen in so as to obtain this incidental material, and that the authorities would be obliged immediately to dispose of, not retain, any information that is not incidental to legal advice but is the actual legal advice. I remain doubtful but I will wait to see what the Government bring forward at Report stage. No doubt we will return to the subject—we will have to discuss it again—but this has been a helpful debate. I am grateful to noble Lords and I beg leave to withdraw the amendment.