Investigatory Powers Bill

Debate between Lord Mackay of Clashfern and Lord Carlile of Berriew

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, it may be convenient for me to speak about my Amendment 55A, which seeks to amend the new clause proposed in Amendment 55. I approach the Bill on the basis that the security services should get what they require in order to perform their duties adequately for the safety of our country, but the degree to which those powers are given should affect only to a minimum the rights of citizens apart from the Bill. That seems a reasonable approach in looking at these provisions.

As the noble Baroness, Lady Hamwee, said, we are all grateful to the Minister for the amount of consideration he has given to this. I am sure that among the luminaries who were at the meeting yesterday, the noble Baroness would be included. I was not there, I am glad to say; I was at a separate meeting of less luminous people this afternoon.

There are two stages of dealing with privileged information. The first is the decision to make the interception. The provisions that have been put in place in that connection have been referred to, and I have no comment on them. There is a second stage, though, when the material produced by the interception is considered. There is room for a closer use of scrutiny in connection with that. Legal privilege extends to an application to a lawyer for advice and the advice given in consequence of that application. It is possible that, intertwined with those two, other material should arise. For example, the noble Lord, Lord Carlile, spoke in Committee about a lawyer who was handed a letter by a suspect to deliver, and the result of that was rather damaging to the investigation. I think it is clear that the delivery of a letter and the acceptance of that letter by the lawyer was not part of the application for advice or indeed of the advice given, and therefore it would not be covered by legal professional privilege.

I regard legal professional privilege as a fundamental right in our system, enabling a client to consult his solicitor with perfect freedom in relation to any matter on which he requires legal advice. The privilege applies to the application for advice and the advice given, but it extends no further. Therefore, once the interception has taken place, the material is there for consideration. I consider that however difficult it may be to judge in advance before you get the intercepted material, once you get the intercepted material there is scope for deciding to what extent legal professional privilege covers it. I consider that the Interception Commissioner has a very special position and power in relation to that. I therefore believe it is possible for him or her to separate out from the total material intercepted what is truly covered by legal professional privilege. My amendment is intended to permit that and to require that the matter covered by legal professional privilege should not be further used. That should be the principle that preserves our right to legal professional privilege.

The agencies and the Minister have explained that surrounding that may be factual material that is vital to the investigation. The example given is someone who says, “I’m going to Greece. Could I be extradited from Greece?”. The request for information is, “Could I be extradited from Greece?”, while the factual information is that he is going to Greece. If that is the case, I consider that the information about whether or not he can be extradited from Greece is covered by legal professional privilege but the information that says he is going to Greece is not. Therefore, in an edited version of the material, the Interception Commissioner could take out all that was covered by legal professional privilege and decide what use, if any, the remainder could be put to. That is perfectly in accordance with the doctrine of legal professional privilege.

To refer again to a point that the noble Lord, Lord Carlile, made in Committee, it is important that a lawyer should be able to tell his client about the protection. He should be able to tell him that, subject to the iniquity provision, the conference in connection with the request for advice and the giving of that advice is absolutely privileged, but of course it does not cover anything that might be said in addition to that.

It is also possible that the Interception Commissioner might be able, in addition to that kind of separation and editing, to consider whether inferences can be drawn from the way in which the advice was sought. For example, if the client says, without indicating that he is going to Greece, “Can a person be extradited from Greece?”, it could be inferred that he might well be going to Greece and the security services could use that inference as a subject for their investigation, which might help that investigation considerably.

It is therefore possible to use this system at the second stage, the stage at which the material is available to study, to ensure that legal professional privilege is not breached but that the maximum information that is useful to the security services can be extracted from the material that has been intercepted without breaching that principle. That is what I want to achieve with this amendment. I believe it could be better phrased—we had some problem with reception, which I need not go into—but what is required is a power for the commissioner, which could be well expressed by parliamentary counsel, allowing the genuine privilege to apply at the same time as giving to the security services all possible information that they could reasonably use from the material collected. That is the purpose of my Amendment 55A. I am conscious that the draughtsmanship could be improved upon and I would be happy to see that happen, but the principle that I want to achieve is very clear and I think it is well supported by common sense.

[Lord Carlile of Berriew]

My Lords, I would like to make three points. The first is a general point. I am sure the whole House is grateful to Ministers and all others who have been involved in trying to produce a safe system that provides a public interest exception in relation to legal professional privilege. There was an argument running until a few days ago that there should be no public interest exception, but I do not believe that position is now going to be put forward in this House—certainly not voted upon. Indeed, we can think of examples that may or may not fall within legal professional privilege but could, which would properly be exceptions to which the authority should have regard.

My second point is about Amendment 27 and the proposal that there should be a new standard of proof— new to the criminal law or criminal procedure as far as I know it—containing the phrase “clearly outweighs”. “Clearly outweighs” means no more than the existing civil standard of proof, the balance of probabilities. There is no doubt that those who decide that the balance of probabilities, however expressed, applies will give their reasons in writing. With great respect, because I share the aspiration behind Amendment 27, I think it muddies the waters in an unwelcome way.

I turn with trepidation to Amendment 55A, spoken to with such eloquence by the noble and learned Lord, Lord Mackay of Clashfern. Again, I am sympathetic to what he is trying to achieve, which is to narrow the area for removal or breach of legal professional privilege. It is something which we lawyers regard as near sacrosanct as any concept in the law. My concern is with the word “must” in his amendment. I am happy for an attempt to be made to redraft it, as he recognised might be necessary, but I would not be content to see “must” in any redraft for the following reasons.

When the procedure now set out in Amendment 55 is followed by the Investigatory Powers Commissioner, he—or she—may direct that the item is destroyed or impose conditions as to disclosure, but in making that decision he will be considering a number of contextual issues. Obviously, he will be considering the context at the time when he is making the immediate judgment, but he may also be considering another context. It may well be that it is envisaged that a criminal trial will ensue later.

The rules of disclosure for criminal trials are founded on the notion that the authorities retain material, except in wholly exceptional circumstances. For example, the material retained may materially undermine the prosecution case when a trial takes place, and it is required that evidence that materially undermines the prosecution case should be disclosed to the defence. At the moment when the interception takes place, it may not appear that that might be the result of the material, but it could happen, and the commissioner may well envisage that.

We should not have a provision in which that disclosure cannot occur. One reason why we have had such difficulty making intercept material admissible in court is because of the problems about disclosure. In the case of intercept, the issue is not destruction but huge volume, which makes the normal English and Welsh—and, I believe, Scottish—law requirements for disclosure very difficult to fulfil. There is a risk that the same might happen if there was compulsion of any kind to destroy material.

Answering, as I said, with great trepidation, what has been said by the noble and learned Lord, I oppose any form of compulsion in such a clause. I hope that the Minister will carefully consider that issue before determining whether or not to accept the advice of someone who I know is one of his most esteemed Scottish colleagues.

Criminal Justice and Courts Bill

Debate between Lord Mackay of Clashfern and Lord Carlile of Berriew

Tuesday 9th December 2014 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, I had understood the Government’s proposed amendment as conferring power on the rule committee to determine what the rules should be. There is, of course, an ultimate power but I would expect the rules to be fixed by the rule committee, after appropriate consultation and with a fair amount of knowledge of how the whole system works. This kind of amendment would deal with the sort of problem that the noble Lord, Lord Adonis, and I referred to in Committee. The Government’s amendment would be a sensible one to make and the Minister has explained the principle under which it would work. I am perfectly happy to leave that to the rule committee to determine, in the light of its great experience and knowledge of the situation.

[Lord Carlile of Berriew]

My Lords, I have listened, of course with enormous respect, to the noble and learned Lord who has just spoken but I do not agree with him. As my noble friend Lord Marks said a few moments ago, rules already exist to deal with the problems that are legitimately identified. What I want to say, in agreement with the noble Lord, Lord Pannick, and my noble friend Lord Marks, is about who the people are who sometimes contribute to group actions and would be chilled out of them as a result of the proposed changes.

I have to go back to my period as a Member of another place, representing a geographically large but population-small rural Welsh community. From time to time in that community, issues arose relating to judicial review. For example, many people wanted to challenge the closure of small primary schools or the changes made by the Conservative Government of the time to the structure under which primary schools could be governed. There were challenges to new roads and planning decisions, which had been made on faulty procedure by the local authority.

Who are the people who contribute to these group actions? They include people with small businesses who decide that the issue matters more to them than might at first sight be apparent. They do not, however, want to open up their private business to the courts—not because there is anything wrong with their private business, but because they think it might be made public and their neighbours might know that business. Some small farmers are much more affluent than their neighbours know; others quite the opposite. The affluent ones may want to make a disproportionate contribution to a group action, because it matters to them and because their families have been central to the community in which they live for several generations. Elderly people may not want to leave quite as much as their unworthy relatives would like to receive from their estates; they may feel that there are community issues that justify their descendants perhaps paying a small price by a contribution being made to a community group action of judicial review in the public interest.

Those are just three illustrations of the types of people who will feel that they are simply not prepared to give more than a few pounds to a group action, whereas in the past they may have given several thousand. So I agree with the point that has been made eloquently by others. Before we go down this road, we need some indication from the Government—they must have some idea—at least of the proportion of costs that would fall within these provisions. Until we have that, we could not conceivably be responsible in agreeing to a proposal that would have such a serious chilling effect, not only on judicial review but on the spirits of small communities such as the one I represented.

Marriage (Same Sex Couples) Bill

Debate between Lord Mackay of Clashfern and Lord Carlile of Berriew

Monday 17th June 2013 Lords Chamber

[Lord Carlile of Berriew]

I thought that might draw a guffaw from the Labour side of the House; they know the dangers of it. Instead of that or any other constructed euphemism, those children should be able to say, “My parents are married”, just as other children can.

[Lord Mackay of Clashfern]

My Lords, I have tabled Amendment 2 in this group. I was led to put this amendment down in an attempt to analyse what the differences are on this Bill. They are quite deep in this House, in the other place and in the country. I thought that something could possibly be done to try to bridge the divide.

The claim made by the proposers of the Bill is that whatever happens, the word “marriage” should be at the forefront of its title. Anything less takes away to some extent from that, although very worthy words have been proposed. When one looks at the debate here and in the other place, and reads the letters we have had—I thank the people who have sent many letters to me; I cannot possibly answer them all in view of my commitment to this—one can see that there is a feeling among many people in this country that same-sex marriage on the one hand and opposite-sex marriage on the other are different, and in a number of ways. They may have much in common and yet have distinctions.

I believe that the attempt to deal with this sort of thing in the descriptions given in the myth-busters document that was published along with the Bill did not really look at the main objection that people have, which is the fact that, over many centuries, marriage has signified a relationship between the opposite sexes. That is the fundamental point which a lot of people have grasped and held on to, in a way that is difficult for them to accommodate in any other context. When the myth busters got going, they used a technique which I remember being described by the great advocate Sir Milner Holland to the effect that if you cannot answer a point, the best thing to do is to set up a cockshy as close to the point as possible, knock it down with a great flurry and then pass on. That, in effect, is what has happened. The myth buster talks about the myth of having no development in marriage over the years. Anyone who has listened to this debate or read the volume to which the noble Lord, Lord Pannick, referred at Second Reading will know that there have been many developments in marriage over the years. The idea that there have been none is not the foundation of the argument at all; rather, it is that the fundamental distinction is between a marriage where the relationship is between people of opposite sexes and what is proposed in this Bill.

What I think might be of use in dealing with that is to recognise within the nomenclature of the Bill that there are two distinct provisions, one relating to same-sex marriage and the other to opposite-sex marriage. I did not put down the opposite-sex marriage amendment today because I saw that these other amendments about traditional marriage and so on had been tabled. There is reference to opposite-sex marriage in Clause 11, alongside same-sex marriage. Ultimately, it does not make any difference to the provisions. However, it does signify that the distinction between the two is understood by the legislature and that the title “marriage” is given to what the proponents of the Bill want, at the same time as recognising that those distinctions exist.

Terrorist Asset-Freezing etc. Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Carlile of Berriew

Monday 25th October 2010 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, it appears reasonably plain that the ratio of the decision of this House in the case referred to by the noble Lord, Lord Pannick, would apply with equal effect to asset-freezing orders and to the subject matter of that particular decision. The only question is whether one has to wait for a court to make that decision in this type of case or whether Parliament should decide it now. To achieve a good and clear result fairly quickly, the proposal of the noble Lord, Lord Pannick, is correct. The precise wording follows very much that of the decision of this House in AF (No. 3), but I can see that there is room for consideration of that. However, I strongly support the view that this principle should be recognised in relation to asset freezing, as it was in AF (No. 3).

[Lord Carlile of Berriew]

My Lords, I join in asking my noble friend to consider very carefully the proposal put forward by the noble Lord, Lord Pannick. I agree entirely with the noble and learned Lord, Lord Mackay of Clashfern, that there is no logic to saying that different principles will apply to asset-freezing cases from those that apply to control order cases.