Baroness Hamwee
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Protection of Freedoms Bill
Baroness Hamwee Excerpts(12 years, 10 months ago)
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Baroness Hamwee
“(iii) taken from a person detained under section 136 of the Mental Health Act 1983,”
Baroness Hamwee
My Lords, in moving Amendment 1, I will speak also to Amendment 2. Amendment 3 is also in this group and is in the name of the noble Lord, Lord Campbell-Savours. This amendment refers to Section 136 of the Mental Health Act 1983, which allows for the detention, in a place of safety, of someone found in a public place apparently,
“suffering from mental disorder and … in immediate need of care and control”.
Black Mental Health UK, together with Big Brother Watch and GeneWatch UK, brought concerns to me and other noble Lords about the taking of DNA samples and fingerprints in the circumstances covered by Section 136 that I have just described. The people concerned have been detained in a place of safety; they have not been arrested. They are at a point of crisis in their lives, and the organisations pointed out that the intimate process of taking DNA samples might cause further trauma to an individual who is at his most vulnerable, as I am sure your Lordships will understand.
They wrote to the Minister who is the policy lead on DNA, who replied, referring to the Police and Criminal Evidence Act and explaining that an individual detained under Section 136 is not arrested and so there is no power for DNA samples or fingerprints to be taken; and, if they are taken, that is unlawful. The new Section 63D(2)(a), which would be introduced by Clause 1 of this Bill, requires their destruction. My initial reading of the letter from Black Mental Health UK and the reply from the Minister made me think that the concern was about the impact of taking the sample, and that what was needed was a more careful observation of the restriction—in other words, that samples should not be taken when it is unlawful, and that this might be emphasised in the relevant code of practice or guidance.
However, when I looked at the proposed new Section 63D(1), I wondered whether this situation actually fell within it, and therefore within Section 63D(2), which requires destruction of the samples. Looking at the provisions at the top of page 2, we are talking here about fingerprints or DNA,
“taken from a person under any power conferred by this Part of this Act”—
PACE—
“or … taken by the police, with the consent of the person from whom they were taken, in connection with the investigation of an offence”.
There is no power to take samples or fingerprints and nor are they taken with consent. Hence, my amendments would bring within Section 63D(1) samples and fingerprints taken from a person who is detained under this section of the Mental Health Act.
Earlier in the week, at about the same time that the Minister replied to Black Mental Health UK, I saw that there was a Written Answer to two Questions, I think, from the noble Lord, Lord Ouseley. I have been in touch with him today. He wishes he could be here but is not very well today, and so I am begging his support in absentia. He knows I am going to do that and he has not asked me not to—indeed, he says that he supports these amendments. I beg to move.
Lord Henley
If I may say so, that is another question. I accept the fact that it might be better if there were other places that they could take the individual to, but the important point is that they have taken that person to that cell. They have then done something wrong by taking his or her DNA in whatever form. That would be unlawful—that is what I am trying to make clear—and I hope that the noble Lord will accept that point.
I turn now to the amendment in the name of the noble Lord, Lord Campbell-Savours, and welcome him back. I had not actually noticed that he was absent from the Committee stage of the Bill, because I seem to remember that we dealt with some of these things—but perhaps it is just a fantasy that I remember us addressing these matters. I certainly remember that we had considerable discussion on these matters.
I appreciate that the noble Lord feels that he has misdrafted his amendment and would like it to read “and only” instead of “or”. We are at Report stage, so it is possibly too late to fix these things, but I suspect that it is to some extent a probing amendment. If the noble Lord remembers, we had some quite spirited discussion in Committee of what the appropriate period should be, and I dare say that we will have another one when we discuss Amendment 4, which the noble Baroness, Lady Royall, will be moving. Amendment 3 does not define that period. If one assumes that the appropriate period would be the relevant period set out in the various provisions of the Bill, I would say to the noble Lord that subsection (3) of new Section 63D of PACE, as inserted by Clause 1, already does this. Subsection (3) says that in,
“any other case,”—
in other words, except in the circumstances already provided for in subsection (2), which are where the arrest or the taking of biometrics were unlawful,
“section 63D material must be destroyed unless it is retained under any power conferred by sections 63E to 630”.
We have a general presumption that material must be destroyed unless the Bill explicitly permits its retention. I will come back to retention on that later amendment from the noble Baroness and later amendments from the noble Lord. But it must be destroyed unless the Bill explicitly permits its retention, either for a fixed period, such as for a person charged with a qualifying offence but not convicted, or for an indefinite period for those with convictions.
I hope that with that explanation my noble friend will feel able to withdraw her amendment and the noble Lord, Lord Campbell-Savours, will not press his amendment. I appreciate that we will discuss these matters in further detail on some later amendments.
Baroness Hamwee
My Lords, I do not think that we will have an opportunity to come back to mine. Of course, I am glad that the Minister and I are focused on the same outcome—the destruction of the material. My concern is that the answer to the Parliamentary Questions and the letter from the Minister rely on the new Section 63D(2) of PACE. However, as I had hoped I had explained, I do not think that it applies. The new section starts “This section applies to” and then in paragraphs (a) and (b) sets out what it applies to. My concern is that material taken when the person is not arrested, as the Minister has made clear, and has not given consent would not fall within this and therefore the provision for destruction in new Section 63D(2) would not apply.
I am glad to hear what the Minister says about the code and I am of course not going to press the amendment today. But my concern was that, by relying on a section that in my view does not apply—I do not think that we have quite bottomed it out—there might be resistance to destruction, which the Minister has said that the code will make quite clear is required. Although not within the context of the Bill, perhaps this is something that he and I might have a further word on outside the Chamber because we are clearly aiming at exactly the same outcome. Having said that, I beg leave to withdraw the amendment.
Baroness Hamwee
The noble Baroness has referred to the figures that she gave us at the previous stage. She said that 23,000 criminals a year would no longer be on the database who could commit 6,000 further crimes. She has answered the point of my noble friend Lord Phillips and confirmed that these include minor offences. Rereading Hansard, I was not clear whether the 23,000 were those within years four to six, because some of the cases mentioned in the debate related to crimes where there had been more than a six-year period.
As noble Lords said on the previous occasion we discussed this matter, it is not entirely black and white. As we discussed in Committee, if one asked a random group of the public about this, most would want a longer period of retention. That is possibly correlated with those who watch entertaining but unrealistic television dramas; I know that I am affected by these things. We all know that if you asked the same group of people about capital punishment, you would probably get a very hard-line answer, which is why most of us try to avoid asking that question.
My noble friend Lord Phillips said that though we would all agree that a society with a full range of surveillance would be a different society, few of us would be able to articulate why that was so. I have to say that I am among the less articulate on this. I do not think anyone could say that what the Government have proposed is in any way a casual approach to retention or one which completely reverses the current approach. Indeed, it is a pity that what is proposed in the Bill is so hedged about with conditions that this is not so very different a piece of legislation. I agree that, of course, we should not be casual about crime and the prevention or detection of crime. Similarly, we should not be so cautious that we are casual about privacy, our culture and the intervention of the state in our privacy. The noble Baroness said in Committee that,
“there is a fine line between the preservation of … freedom and privacy”,—[Official Report, 29/11/11; col. 146.]
on the one hand and the delivery of justice and the protection of citizens on the other. I also acknowledge the fineness of that line but I think that I am on the other side of it from her.
Lord Henley
My Lords, as always, I am very grateful to my noble friend Lord Lester of Herne Hill for his assistance and advice in relation to what the Joint Committee on Human Rights feels about this issue. I am also grateful to my noble friend Lady Hamwee for what she had to say. Certainly, we will do what we can to provide better evidence of the use of DNA in convicting criminals as and when we can. However, I refer the noble Lords, Lord Campbell-Savours and Lord Hughes of Woodside, and possibly even the noble Lord, Lord Harris of Haringey, to the figures. These are some of the figures that we have; obviously, more will become available. Since 2001, more than 4 million people have been added to the DNA database, yet despite that the number of DNA detections has fallen from 33,000 to just over 26,000 in 2009-10. There has been a vast growth in the hoarding of people’s DNA but a decline in the number of convictions. That is an important thing to remember as we look at this amendment.
I also give an assurance to the noble Lord, Lord Hughes of Woodside, who was worried that material taken from crime scenes would be lost. That is not the case. Material taken from crime scenes will still be taken; we are talking about material that is taken from individuals, whether criminals or not. That is a very different matter. My noble friend Lady Hamwee addressed a point of disagreement about whose DNA you should keep and for how long. We know that the noble Lord, Lord Campbell-Savours, feels that there should be a national database containing everyone’s data. He would like to start with a voluntary database on which we can all put our DNA. We will discuss that when we reach his amendment. That might be hunky-dory and all that but it is not what we want, nor do we think that we should pursue a compulsory line in that regard.
I have explained what evidence we have. That is something we will look at but I also think we ought to look at other matters which influence this decision. The first thing to point out to the noble Baroness, Lady Royall, is that they would replace the Government’s provisions, which meet our coalition commitment to adopt the protections of the Scottish model. She says that that model was agreed without any analysis whatever. I have given some figures and we will provide some more in due course but we will also look at the remarks of Mr Keith Vaz, chairman of the Home Affairs Select Committee, at Committee stage on this Bill in another place. We will also look at what the ECHR had to say with regard to the Marper case referred to by the noble Lord, Lord Dear. I was very grateful to him for his intervention, particularly as he stressed the important point of this being a question of balance. My noble friend Lady Hamwee also stressed that point.
I believe that the party opposite is persisting in its approach to keep the DNA and fingerprints of innocent people for many years, no matter how little evidence was ever uncovered, and to keep huge numbers of individuals’ DNA and fingerprints on the national databases just in case they go on to commit crime in the future. That is not something with which we can agree. The party opposite pays scant regard to the judgment of the European Court of Human Rights in the S and Marper case, which noted with approval the system which has been in place in Scotland for some years. I remind your Lordships that the Scottish system, seemingly endorsed by the European court and on which we have modelled the proposals in the Bill before us today, was put in place by the Police, Public Order and Criminal Justice (Scotland) Act 2006, which was presented to the Scottish Parliament by the then Labour Justice Minister, Cathy Jamieson. I do not think that the Labour Party is in power in Scotland at the moment.
Noble Lords opposite contend that our proposals are in some way a charter for dangerous criminals such as rapists which will allow dangerous individuals to roam the streets, committing serious offences with no way of tracking them down. The contention that every individual suspected of rape or any other serious offence will instantly come off the database as a result of these proposals is just not true. As we have discussed previously and at some length, those charged with a qualifying offence, including rape, will have their DNA held for three years, and the police will be able to apply to the courts to extend that by a further two years. The police will do that and that is similar to what is happening in Scotland. Those arrested for a qualifying offence but not charged—oh! I was wondering whether the noble Lord wished to intervene but he is obviously addressing his Front Bench.
Baroness Royall of Blaisdon
My Lords, of course I recognise what the European Court of Human Rights said, but my Government, when they came to the view that the period should be six years, believed that it was compliant with the ruling of the ECHR. I was not suggesting that the Minister was going to agree with me; I was asking him to come back with further evidence of the situation in Scotland. There must be some facts and figures. The facts relating to Scotland that I have put before the House have been questioned, and I would like more facts about the situation in Scotland. I would like to know whether it is indeed the case that the police have not asked for an extension from three to five years.
Baroness Hamwee
My Lords, with the leave of the House, perhaps I may say to the noble Baroness that asking whether the police have or have not sought extensions is one matter, but asking why not seems to be asking the Minister to prove a negative. I thought, not just now but a few moments ago, she was asking the Minister to explain why not.
Baroness Royall of Blaisdon
My Lords, forgive me if I misled the House. I did not mean to ask why not; I wished to know whether or not the police had asked for an extension. I beg leave to withdraw the amendment.
Baroness Hamwee
The noble Baroness pointed to the words “or otherwise” at the end of the amendment. I may not have been paying sufficient attention to the argument, in which case I apologise, but if this matter is considered further perhaps she would take on board that within this definition the impairment is through only physical or mental disability or illness, and that the last five words are a description of what might cause the physical or mental disability or illness. Therefore, one cannot read “or otherwise” as extending the impairment. I repeat: the impairment is only through disability or illness. As I listened to the noble Baroness, I thought that she was asking us to read “or otherwise” as adding to “disability or illness”, which I do not think it does.
Baroness Stowell of Beeston
I am sorry if I in any way misled your Lordships. In her definition of those final five words—particularly the use of “otherwise”—the noble Baroness is correct. I was seeking to make it clear that impairment through physical or mental disability could be due to old age or otherwise. I am not trying to introduce something new; I am saying that it is possible for the impairment to be not just limited to old age. I hope that I am making myself clear; it does get rather complicated. However, in simple terms, I think that the noble Baroness is right.
Baroness Hamwee
“Work-related requirements6A Regulations may provide that a claimant who—
(a) has a right to reside in the United Kingdom under the EU Treaties, and(b) would otherwise fall within section 19, 20 or 21,is to be treated as not falling within that section.”
Baroness Hamwee
My Lords, Amendment 15 deals with membership of the National DNA Database Strategy Board. In Committee, I moved an amendment requiring rules about the composition of the board to be included as part of the governance arrangements. The Minister reassured me that the Government's rules would include full membership of the board. She said that an independent element in the form of representation from the Information Commissioner's Office and the National DNA Database Ethics Group would be included. She also said that she would be happy to receive suggestions to strengthen the independent element. This is such a suggestion.
My point in that debate and now is that an independent element need not be, and possibly should not be, a member of the board in a representative capacity. Noble Lords will all have experience of boards to which independent members bring exactly that: independence. They come as individuals with not only independence but judgment, experience of the wider world and so on. If they are representatives of other organisations, they have a rather different role to play. My reason for moving the amendment again is not just to respond to the invitation issued in Committee but to ask the Government to bear this in mind and not exclude the desirability of having true independence involved in the governance of the board. I beg to move.
Baroness Stowell of Beeston
My Lords, I am grateful to my noble friend for her explanation in moving her amendment. The first thing I will make clear to her is that we are not averse to including on the National DNA Database Strategy Board someone who is wholly independent in the sense that they have no direct or indirect interest in this field and, as such, can exercise a role akin to that of a non-executive director, as my noble friend explained and illustrated. All I can do at this time is restate what I said in Committee: namely, as she acknowledged, that the governance rules that must be published under the new Section 63AB(6) of PACE will include the full membership of the board, and that membership will continue to include an independent element in the form of representation from the Information Commissioner's Office, the National DNA Database Ethics Group and the Forensic Science Regulator. We do not consider it necessary to specify the membership of the board in the Bill or at this time to specify what my right honourable friend the Home Secretary might include in the governance when it is decided and published, but I am sure that in reviewing the membership of the board she will consider the points that have been made by my noble friend. I think she will want to ensure that we are not so specific in those governance rules that they prevent us changing any of the independent elements of the membership of that board in future, when different organisations might be associated with DNA.
I hope that my explanations have given my noble friend the assurance she needs that we understand the importance of an independent element in the board and that we want to retain flexibility for the future in the make-up of the board. However, we will certainly take into account the points she has made.
Baroness Hamwee
My Lords, I thank the Minister for that reply. I do not require the detail now; that would not be sensible. My point is to ensure that the door is not closed to prospective independent members who are not representative of or members of related and connected organisations. The Minister said that the Government are not averse to that, and I am glad that the door will be open and that the point is, I hope, taken. I beg leave to withdraw the amendment.
Lord Henley
My Lords, I shall speak also to the other amendments in my name in this group; that is, Amendments 19, 22, 25, 26, 27, 28 and 29. We will also consider in this group Amendments 20, 21 and 23, in the name of my noble friend Lady Hamwee, and Amendment 24 in the name of the noble Baroness, Lady Royall. I shall respond to those as I come to the end of my remarks, but, at this stage, I shall speak just to my own amendments.
We consider a child’s biometric information to be highly personal and sensitive and, as such, it should be protected. It is right that schools and colleges should be required to obtain the written consent of a child’s parents if they wish to take and process this information.
We listened carefully to the concerns raised in Committee about these provisions. In particular, my noble friend Lord Lucas and the noble Lord, Lord Rosser, argued that the requirement to obtain the written consent of both parents would place too great a bureaucratic burden on schools and could have the effect of dissuading schools and colleges from using biometric recognition systems.
The Government are persuaded that we should remove the “dual consent” requirement and instead provide for a system whereby all parents, and any other individual with parental responsibility for a child, must be informed in writing that the school or college intends to take and process the child’s biometric information and that they have a right to object. As long as no one objects in writing, the written consent of only one parent will be required. This change strikes the right balance between ensuring that the views of both parents continue to be taken into account, with their right to object preserved, and ensuring that the administrative burden on schools and colleges is not too great.
The Government’s amendments also make the consent requirements in the Bill more consistent with all other forms of consent that schools and colleges are required to obtain, therefore alleviating any additional bureaucratic burden. The main difference in this instance is the express provision to notify all parents and the stipulation that, if any parent objects, the processing of their child’s biometric information cannot take place. I beg to move.
Baroness Hamwee
My Lords, my Amendments 20 and 21 are to the Minister’s Amendment 19, which, as he explained, deals with notification to parents. My amendments would include the child in the notification.
Noble Lords will be aware of provisions of the European Convention on Human Rights and the UN Convention on the Rights of the Child, both of which are relevant here. Without being technical about it, it seems to me a matter of common sense and principle that a child whose data these are should be part of this whole process. I doubt that I need spend long seeking to persuade your Lordships of that—well, I hope not; if I get a look from in front of me, perhaps I should.
The UN Committee on the Rights of the Child has made it clear that:
“The realization of the right of the child to express her or his views requires that the child be informed about the matters, options and possible decisions to be taken and their consequences by those who are responsible for hearing the child, and by the child’s parents or guardian”.
Amendment 23 follows an amendment that I had in Grand Committee relating to the provision of information. Noble Lords at that stage regarded what I was proposing as too burdensome, in that it was read as an annual requirement. I had not intended that the provision of information should be anything as burdensome as was understood, so I have brought back a simpler amendment, which would provide that the authority in question should ensure that information is provided to each parent and child on their rights, in language capable of being readily understood by them.
I am not proposing here regular pieces of paper in difficult language—I remember the noble Baroness, Lady Farrington, saying that in her experience, as both a mother and a grandmother, such pieces of paper tend to end up in the washing machine. I am simply saying that it needs to be recognised that information should be readily available, perhaps on the school’s website, along with other information. However, the provision of information in accessible language is an important principle. I understand that there has been some research that indicated that most children using biometric systems in schools had not considered how long their fingerprints would be held for. They were generally not concerned, which the researchers took as a serious matter. I am not entirely surprised that children may not think beyond what is immediately in front of them. However, it points up the need, not to shove it down children’s throats, but to make the information very easily accessible.
The Information Commissioner has made it clear that schools collecting data need to be aware that children are data subjects and that,
“it is they who should in the first instance be informed and consulted about the use of their personal data”.
Lord Lucas
My Lords, I am very grateful to the Minister for his amendments. I think they answer the matters that I raised as well as I could have possibly hoped.
Baroness Hamwee
Baroness Hamwee
Our procedures do not allow me to come back on a debate on Report, so I move this amendment to the Minister’s amendment to make a point and ask a question. He said that the Government trusted that schools would notify parents and children of the provision in an age-appropriate manner. My problem is that Amendment 19 refers to notifying only the parent. We have got to this point as a result of our focusing on consent. My question is whether guidance will extend—I think he has more or less said this—to notification to the child in the way that I suggest through this amendment. Of course, that will not deal with the consent but, given the later provisions of Clause 26, am I right in assuming that what I am seeking will in effect apply, because Clause 26 will not be workable otherwise? I would be happy with a yes to both those points. I beg to move.
Baroness Hamwee
“(2A) Subsection (2) shall not apply to an authorisation granted in contemplation of any surveillance undertaken in pursuance of Part 3 of the Environmental Protection Act 1990 or the Noise Act 1996 in respect of noise.”
Baroness Hamwee
Amendment 33 amends the provision dealing with the need for judicial approval in cases of directed surveillance and covert human intelligence sources in the work undertaken by environmental health officers dealing with noise. I moved this amendment in Grand Committee. I know that the Minister is sympathetic to people who suffer from noise disturbance, so I am trying it again, not just for that, but in order to pursue a couple of points. I should declare that I am a vice-president, one of many, of the Chartered Institute of Environmental Health.
In responding to the amendment in Grand Committee, the Minister referred to meetings between the institute and Defra and to work on revising the RIPA code of practice, but if surveillance is unlawful, which is what concerns the institute, the code cannot make it lawful. I am rather cantering through the points covered in that debate. I accept that most of what environmental health officers do in investigating and dealing with noise nuisance does not amount to covert surveillance requiring authorisation. The Minister said that the code would make it clear that,
“authorisation under RIPA is unlikely”—
I stress that word—
“to be necessary”.—[Official Report, 15/12/11; col. GC 357.]
Uncertainty over this is not helpful. The Minister referred to the right to privacy, but I do not believe that this is a matter of privacy—privacy is keeping a matter private after the fact—but is about obtaining information. She said that if noise—for instance, of an argument—is so loud that it can be heard outside a property, there can be no realistic expectation of privacy. However, as I understand it, private information is defined by RIPA according to its content, not its audibility. Indeed, individuals can have a right to privacy in respect of activity even in a public place.
If the local authority is to serve an abatement notice warning that monitoring may be carried out, it has been suggested that it cannot be covert, but whether surveillance is covert is a matter of fact in each instance. The Minister said that the code makes clear that authorisation is not required, but in fact the code states that a perpetrator is not normally to be regarded as having forfeited a right to privacy and that authorisation may not be necessary.
Coming back to those three words, “unlikely”, “normally” and “may”, can the Minister give me any further assurances? I beg to move.
Baroness Hamwee
My Lords, I thank my noble friend for having clearly spent quite some time on this since we spoke earlier this afternoon.
As my noble friend will know, a code cannot trump legislation but greater clarity may be of assistance. Certainly, I was with her much more this time on her response than previously. It may not satisfy the institute entirely but if the code can be made clearer and reduce hesitancy on the part of environmental health officers in using the powers that they have, that would certainly be a good thing. I beg leave to withdraw the amendment.
Baroness Hamwee
“Matters subject to legal privilegeInvestigatory powers: legal privilege
(1) In section 5 of the Regulation of Investigatory Powers Act 2000 (interception with a warrant), after subsection (6) insert—
“(7) But an interception warrant does not authorise conduct undertaken for the purpose of doing anything in relation to—
(a) a communication, insofar as the communication consists of matters subject to legal privilege;(b) communications data, insofar as the data relate to the communication of matters subject to legal privilege.(8) In subsection (7), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.
(9) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an interception warrant or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.
(10) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to an interception warrant resulting in accidental acquisition of a communication, or communications data, falling within subsection (7);(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.”(2) In section 22 of that Act (obtaining and disclosing communications data), after subsection (9) insert—
“(10) An authorisation or notice under this section does not authorise or require anything to be done for the purpose of obtaining or disclosing communications data relating to the communication of matters subject to legal privilege.
(11) In subsection (10), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include a communication made with the intention of furthering a criminal purpose.
(12) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether, in any case, a communication is made with the intention of furthering a criminal purpose.
(13) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of accidentally obtaining or disclosing communications data falling within subsection (10) in the course of anything done under this section;(b) the steps to be taken if it appears that anything done under this section has accidentally resulted in such data being obtained or disclosed.” (3) In section 27 of that Act (authorised surveillance and human intelligence sources), after subsection (4) insert—
“(5) An authorisation under section 28 or 32 does not authorise surveillance for the purpose of obtaining information about—
(a) anything taking place on so much of any premises as is in use for the purpose of legal consultations, or(b) matters subject to legal privilege.(6) An authorisation under section 29 does not authorise any activities involving conduct of a covert human intelligence source, or the use of such a source, for the purpose of—
(a) obtaining matters subject to legal privilege,(b) providing access to any matters subject to legal privilege to another person, or(c) disclosing matters subject to legal privilege.(7) In subsection (5), “legal consultation” means—
(a) a consultation between a professional legal adviser and his client or any person representing his client, or(b) a consultation between a professional legal adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purpose of such proceedings,except in so far as the consultation consists of anything done with the intention of furthering a criminal purpose.(8) In subsections (5) or (6), “matters subject to legal privilege” means matters to which section 98(2), (3) or (4) of the Police Act 1997 applies, but does not include anything done with the intention of furthering a criminal purpose.
(9) For the purposes of this section the Secretary of State may by regulations make provision for the determination (on an application for an authorisation or otherwise) of the question whether anything referred to in subsection (7) or (8) is done with the intention of furthering a criminal purpose.
(10) A code of practice issued under section 71 may in particular contain provision about—
(a) the steps to be taken to minimise the risk of conduct undertaken in reliance on this Part accidentally resulting in information of a kind mentioned in subsection (5) being obtained or in any of the things mentioned in subsection (6)(a), (b) or (c) being done;(b) the steps to be taken if it appears that such conduct has accidentally resulted in such information being obtained or such things being done.”
Baroness Hamwee
My Lords, I beg to move Amendment 34, which has been prepared by the Bar Council. Any noble Lord who looked at the Marshalled List would have been surprised that anyone without parliamentary counsel experience could have come up with this, and indeed it was a former parliamentary counsel who drafted it. I take this opportunity to thank the noble Lord, Lord Henley, for the meeting he had with representatives of the Bar Council a few days ago.
The amendment is underlaid by the common-law right of a client and his lawyer—or indeed a lawyer and his client; it works both ways—to communicate privately. I do not think I need to emphasise the importance of this, nor can I overemphasise it. It is a fundamental human right and a major building block of our administration of justice. If a client feels that his communication might be disclosed and used against him, he will edit what he tells his lawyer, and his lawyer will inevitably be handicapped by that.
There is a statutory protection against the use of legally privileged communications when a client is in custody, but in 2009 in the case of Re McE, this House, when it was still sitting as a court, held, although not unanimously—the noble and learned Lord, Lord Phillips of Worth Matravers, dissented—that Part II of RIPA permits the covert surveillance of meetings between defendants and lawyers. This ruling applies to other covert investigation techniques: the interception of communications, the acquisition of communications data and the use of covert human intelligence sources. There is therefore a problem where instructions are taken outside a police station, such as a group of people at an environmental protest, or indeed when one meets any group of people, or any individual, outside particular premises. The ruling also applies outside criminal law when an individual brings a civil action against the state, and to think that the state itself could be listening into and using what he tells a lawyer reminds us of regimes that are very far from the model of what we wish to be in this country.
Following McE, orders were made that altered the authorisation provisions and revisions were made to the codes of practice, but in the view of the Bar Council these provide insufficient safeguards. The codes of practice provide for the violation of legal professional privilege only in “exceptional and compelling circumstances”, but the test contains no special protection for privileged material. For directed surveillance, such circumstances are said to arise only in cases where there is a threat to national security or to “life or limb”. The phrase “threat to life or limb” is not clear; it could extend to quite minor offences where physical injury has arisen from a lack of reasonable care or a breach of a duty that gives rise to strict liability.
The real difficulty is that these changes do not address the fundamental point that covert investigatory powers should not be used to target privileged communications. The orders, in any event, do not apply to the interception of communications and the acquisition of communications data. This amendment would protect legal professional privilege except where it is abused for criminal purposes.
The noble Baroness said in Grand Committee that no one could regard themselves as being beyond the law or immune from investigation or prosecution. I do not challenge that. Indeed, I share that view. Therefore the inequity exception, as it is known in the trade, is included, which provides that privilege does not attach to information that is held or to communications that were made in the furtherance of a criminal purpose. The proposed new clause would simply bring RIPA into line with other legislation. When RIPA was introduced, the issue of privilege was not debated at all, and the courts have been left to construe statutes. This is not a case of the courts having any basis other than an assumption of the construction, “Parliament must have intended”. I do not think that Parliament addressed its mind to it.
I have two further points. First, the noble Baroness mentioned the requirement of codes of practice that cases of legally privileged communications which are intercepted or retained, or are the subject of interception, should be reported to the Interception of Communications Commissioner. I take that point but it is after the event and does not meet the basic concern.
Secondly, the noble and learned Lord, Lord Scott of Foscote, queried whether the way in which the provision was drafted would give a wide power to the Secretary of State to pre-empt how the courts might deal with a criminal purpose. He pointed to the words “or otherwise”. The matter is most likely to arise on an application for authorisation but it could arise later in an investigation where the fruits of a covert operation tend to include lawyer-client communication, which would not attract the iniquity exception.
The Bar Council and I believe that the addition of the words:
“For the purposes of this section”,
in two places would confine regulations which are proposed to provide for determinations only for the purposes of the relevant section of RIPA and not be as extensive as the noble and learned Lord feared. I am grateful to him for pointing out the need for a little tweaking.
This is an issue of really important principle, which I appreciate I am bringing to the House late in the evening. Perhaps the exit of a number of noble Lords indicates that we are not going to go on to what they were staying for. I have no doubt made myself a bit unpopular therefore by this but nevertheless it is an important point of privilege.
Lord Henley
My Lords, my noble friend is absolutely right to say that this is a very important matter. It is sad that we should be debating this so late and that it will be the last amendment of the day. I was going to congratulate her on her drafting abilities but, as she admitted, that was the work of others. I was grateful to see that it was a former parliamentary counsel who managed that.
Having said that, I appreciate that this is an area on which my noble friend and the Bar Council have strong views and I think that there is some agreement between us on the importance of these issues. I am therefore very grateful that my noble friend brought representatives of the Bar Council to a meeting with me, my officials and my noble friend Lady Stowell last week to discuss this matter further.
We all believe that the principle of legal privilege is important and that the ability of a person to seek legal advice in confidence is a key part of our justice system. We also all agree that the privilege must not be abused by lawyers who might themselves participate in or assist with criminal activity. When such communications are taking place it should be possible to target them for surveillance.
This amendment would not allow us to go any further than this and we do not agree that there are absolutely no other circumstances where privileged material can be targeted. We believe that there are some occasions, which would be exceptional in nature, where our intelligence and law enforcement agencies may need to target these communications in order to counter a serious threat or to protect a person from serious harm. An example would be where a person goes on a shooting rampage, taking members of the public or perhaps their family, hostage. Our law enforcement agencies may have intelligence to suggest that it is likely that the person will visit their lawyer and seek advice or refuge. In that situation, it is clearly vital that information can be obtained about the whereabouts of those taken hostage.
Alternatively, we could take the case of a terrorist planning an attack who may consult his lawyer at the lawyer’s office, where there might be an undercover officer in place, before that attack takes place. The surveillance commissioner may reasonably consider that the undercover officer will obtain information which could be used to avert the attack.
Baroness Hamwee
My Lords, I shall certainly do so. What the Minister has explained to the House is of enormous significance. Given the time, I shall confine myself to just one remark. He gave an assurance that there is a distinction between using information to counter a threat and using it as evidence for prosecutions, with the former being permissible and the latter not. I wonder whether in practice it is entirely easy to disentangle the two. The Minister has given me material to think about, as he will to others who are much more expert than I am on the technicalities. I beg leave to withdraw the amendment.