Serious Crime Bill [HL]

Lord Thomas of Gresford Excerpts

Tuesday 28th October 2014 Lords Chamber

[Baroness Cohen of Pimlico (Lab)]

My Lords, I also rise to support the amendment. The noble Lord, Lord Strasburger, spoke about the need to align PACE and RIPA and thereby to protect journalism. I agree that journalistic material needs to be protected from police officers using RIPA provisions, which were designed originally to get at something completely different. It is equally important, though very much less a subject of public debate, to protect items subject to legal prejudice, which this amendment, if it became law, would do.

I am a solicitor—it is probably my only declarable interest—and, like all solicitors, a solicitor of the Supreme Court, which I would like everybody to remember as a statement. I have been consulted by people anxious about fraud, bribery and commercial organisations who are naturally seeking a safe and effective way of making their concerns known. They are whistleblowers. Any solicitor would make a file note, and it is not a happy thought that a police officer, solely on his own authority, could seek access to that note and thus to the relationship of confidentiality with our clients that we lawyers have been brought up to believe is a vital foundation.

It may also fall to any practising solicitor to be consulted by someone seeking, as for example in the Jimmy Savile saga, to allege that serving police officers were complicit in abuse, and then to be approached by a police officer, perhaps seeking to head off trouble at the pass, being able to access information via RIPA without ever having to explain to a judge what evil it was he was specifically seeking to expose. I accept—of course, I do—that client confidentiality can and must be breached in extremis and with the issue of a warrant or authorisation by a judge, but it should not be possible for police officers to avoid the PACE rules or to go round them and get at the principle of client confidentiality by using legislation that was never intended to do that.

We solicitors are all members of the Supreme Court. We are bound to assist it, but we are bound to assist judges. We are not meant to be a branch of the Executive and, as such, we ought to be subject—and all legally applicable documents ought to be subject—to the power of the courts and not to the power of the police, or indeed, if push came to shove, to the Secretary of State. I commend the amendment.

[Lord Thomas of Gresford (LD)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Cohen of Pimlico, and to make the same point from the point of view of the Bar. I do not think that legal professional privilege is fully understood. Certainly in the criminal field, there may be a perception that defence barristers get together with their client and cook up some story, and if only the police could have access to the instructions of the barrister or the solicitor, all would be revealed. The contrary is the truth.

If I can bowdlerise a little bit, when I see a client for the first time, I say to him, “Will you please not tell me any bull? I want to know the truth. Unless you tell me the truth, I am not able to help you. I am not able to give you proper advice, just as though you went to the doctor saying that you had a pain in your toe when in fact the pain was in your head. Tell me the truth”. It very often happens that the client will then come out with a story which you can then check against the other evidence in the prosecution case, and go back to him and say, “You did tell me a lot of bull. I really need to know the truth if I am to represent you properly”. He will change his story in some instances and will tell the truth. With that truth, you can win cases or you can mitigate the just punishment that will ultimately be imposed on him and advise him to plead guilty if that is the right thing to do.

It is an extremely delicate relationship between the client and the barrister or solicitor—I have been in the solicitor position as well—that many people do not understand. A judge understands it. If a judge, on a proper application being made to him, decides that it is in the public interest that this relationship should be investigated, and if there is something about the way in which the case is being conducted that gives rise to suspicion so that prying into the papers of the defence is an appropriate thing to do, the judge from all his experience—all judges will have been through the mill themselves and will know precisely how these things should be approached—will give the ultimate permission for the file or the papers to be looked at. Generally speaking, though, he will not do so, and it is quite wrong if the police use RIPA powers—legislation that was intended for a completely different purpose—to break into that very delicate relationship and break it up.

That is the importance of the amendment moved by the noble Lord, Lord Strasburger, and I support it entirely.

[Baroness Smith of Basildon]

My Lords, I can be fairly brief in this debate because I think the Minister will have heard the very real and deep concerns across the House on this. It is not the first time that concerns have been raised about the use or misuse of RIPA. In this instance we are talking about the rights of journalists obtaining information from confidential sources to retain that confidentiality without which some information may never come to light. Previously, there had been anecdotal reports of local authorities using the legislation, which the noble Lord, Lord Black, mentioned, including identifying whether parents were living in a school catchment area. These issues raise serious concerns and have serious implications for individuals and for issues of collective privacy.

I will say something about the wider and serious implications of misuse of the legislation, but I want to address the specific role of journalists’ sources. In effect, we are discussing how new technology has brought with it new challenges for a free press and for personal privacy. Thirty years ago, if the police wanted access to journalists’ sources, they would have to go to a court to obtain their notes. There were no mobile phone records they could access at that time. Similarly, we would not have seen journalists illegally hacking into private phone calls, as shamefully came to light more recently.

Over the weekend, like other noble Lords, I read some of the obituaries of Ben Bradlee, and this amendment came to mind as I was reading about his editorship of the Washington Post. I also watched “All the President’s Men”, which is one of my favourite films. The main people portrayed in that film—Bob Woodward, Carl Bernstein and Ben Bradlee—uncovered the most serious corruption at the highest level of government. I might tag this amendment as “the Watergate amendment” because, although the jurisdictions are entirely different, the principle is the same. Would that story, with all the implications for democracy and secrecy, ever have been told if the Nixon Administration had been able to identify the Deep Throat source or access the records of the journalists he was speaking to? If Nixon had been able to obtain mobile phone records in secret, would we ever have found out what was going on? There will be parallels in the UK, although perhaps they will not be so dramatic. That underlines the value and importance of serious investigative journalism. I am not talking about sensationalist stories about people that most of us have never heard of, but about the best kind of journalism, which I hugely admire, acting in the public interest, not just on what is of public interest.

Noble Lords will recall that, when the Government brought in new powers into the DRIP Act by fast-track legislation to deal with serious and organised crime, including terrorism, we were highly critical of the way in which they acted and of the need to use the fast-track process. Part of our demands in supporting that legislation was that there should be a complete, thorough and independent view of RIPA. We have said for some time that it is becoming increasingly clear and obvious that RIPA is out of date and does not have the right kind of framework or the safeguards we need. Recent reports that RIPA has been used to access journalists’ sources reinforce that. It is right that the Interception Commissioner is looking at it, but in addition it is essential that we get a clear guarantee from the Minister today that this issue will be included as part of the comprehensive review of RIPA led by David Anderson, the independent reviewer of terrorism legislation, that was agreed by the Government during the debates on DRIPA.

For many, the world seems less safe today. We must be vigilant against organised and serious crime and terrorism. I believe that the public understand and support the need for measures that the Government must put in place to deal with these threats to our safety. In order to have and maintain that public support, it is vital that such powers are only ever used for the purpose for which they were intended. If those powers are abused, whether by government, police or local authorities, it undermines public confidence in the very measures needed for the most serious issues, and that puts us all at risk.

Of course, journalists are not above the law. Like anyone else, they need to be investigated if they have committed a serious crime, and I do not think anybody is arguing otherwise. As noble Lords have pointed out, there is already an independent judicial process with prior jurisdiction needed by which the police can apply for access to journalists’ information, but we have a long tradition of additional safeguards in law to recognise the role of a free press in a democracy and to protect whistleblowers, and this should not be compromised.

That is why we need the RIPA legislation to be examined in its entirety, including in context and in application, to ensure that the legal framework enables the police to access the data they need to solve serious crimes and to ensure that it does not have a chilling effect on free speech and the free press on which our democracy depends. The Government must ensure that David Anderson’s review is ambitious enough in scope to resolve these problems and to respond positively to the issue before us now. We seek an assurance from the Minister that this matter will be considered in the review. In addition, the Government must make it clear by whatever means are appropriate that such legislation must only ever be used for the purpose for which it was intended.