Investigatory Powers Bill

Lord Carlile of Berriew Excerpts

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

[Lord Paddick]

My Lords, I am saying that the American model provides significant safeguards, in that somebody represents the side of privacy and civil liberties in the argument; it is not simply a case of the security agencies’ side being put, as perhaps some might see in this country.

Unlike the previous amendment, this amendment does not seek to replace the Independent Reviewer of Terrorism Legislation. On the contrary, noble Lords will see that the independent reviewer must be consulted on the appointment of members of the board. This is complementary to, not a replacement for, the Independent Reviewer of Terrorism Legislation. The current reviewer, Mr David Anderson, has previously argued that the post of independent reviewer is under-resourced and that it does not cover a wide enough range of laws. He said:

“If appropriately staffed and directed by the Independent Reviewer, the proposed new body could sharpen that investigative function and increase its scope”.

I accept that Mr Anderson also has concerns, and no doubt my noble friend Lord Carlile of Berriew, his predecessor, will tell us that he too has concerns. However, it continues to be the view of the Liberal Democrats—

[Lord Carlile of Berriew (LD)]

My noble friend tempts me to rise at this stage because there should be no misunderstandings. Does he accept that David Anderson has made it absolutely clear that he is opposed to this provision?

[Lord Paddick]

My Lords, Mr Anderson has made statements in the past in which he has supported the idea, but I accept that he also has serious concerns about it.

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[Lord Paddick]

I am very grateful to the noble Baroness. Yes, of course I understand that for the security agencies, at every point when they are deciding to apply for warrants or to carry out intrusive activities, civil liberties are at the forefront of their minds within the framework provided to them by the law.

I come back to the point that a form of this privacy and civil liberties board has been agreed by all sides and put into legislation, but the Government have not enacted it. This is a variation on what is already on the statute book, and something that all sides have previously considered and agreed to.

Throughout the debates on the Bill, the Government have maintained that it is world-leading legislation. I believe that it can be regarded as such only if the Privacy and Civil Liberties Board is a part of it. I beg to move.

[Lord Carlile of Berriew]

My Lords, I wonder whether we might first get what might be called “private grief” out of the way—that is, the difference between my view on this matter and that of my party’s Front Bench. If I run the risk of being accused of consistency on this, I am proud of it.

Let us start with the point that my noble friend made about the United States of America. Yes, the United States of America has the body he has described, but how effective is it? I wonder whether my noble friend has examined the Patriot Act and its consequences. It is a set of provisions that allows the American authorities to do what is unimaginable here; for example, at their own whim, to look up the credit card transactions of any citizen throughout the United States for any given period. I do not want to replicate that.

I want also to pick up on a point made very briefly but eloquently by the noble Baroness, Lady Manningham-Buller. This amendment, in my judgment, betrays a lack of confidence in the security services that is completely unjustified. Anyone who has ever looked properly at the way in which the security services have been managed, at least in recent times, or anyone who, like myself, has examined the behaviour of the security services in very difficult circumstances in Northern Ireland in recent times, will know that the management is extremely rigorous and does not need the help of an expensive and ill-conceived quango to ensure that its staff behave properly.

The risks to national security from the sloppy drafting of subsection (5) of the amendment are manifest. There is no provision here for the members of the board to be directly vetted. That means that whoever the members of the board were, they would be entitled under subsection (5)(a) of the amendment to have access to,

“all relevant material (including classified information) held by any government department or agency”.

Presumably it would be their opinion as to what was relevant. Indeed, they would be able to call as witnesses or take statements from,

“personnel of any department and agency”.

That is a provision completely unparalleled in our history.

Furthermore, this proposal usurps the powers of the Intelligence and Security Committee. There is nothing provided by the amendment that the Intelligence and Security Committee cannot at least reasonably do. The amendment clearly envisages that this will be a political board, but outside the control of Parliament, because it says that no more than three members should come from any single political party. It is a sort of freeloading, undisciplined version of the Intelligence and Security Committee, without the control of either the Executive or Parliament.

Also, it looks like a very expensive board, compared, at least, with the Independent Reviewer of Terrorism Legislation. Neither David Anderson, nor I as his predecessor, ever complained about our remuneration as independent reviewer, but it pales into insignificance by at least two noughts on the end compared with this unnecessary board.

Furthermore, such a board would duplicate not just the Intelligence and Security Committee, but all the additional provisions, some contained in welcome government amendments, that have been added to the Bill. I have been watching every detail of the Bill over its very long period of gestation. More information was given when the Bill was first tabled than on any other Bill I have ever known, including more information about the security services than we have ever seen in parliamentary papers. We will now have an independent reviewer, commissioners, judges—a whole panoply of people applying sound management and good judicial principles to the considerations that the board would vaguely look at. It is not even a civil liberties board: it is not what it says on the tin, because civil liberties are not merely connected with investigatory powers.

This proposal is a fudge and it is misleading. I apologise to my noble friends for saying so, but as I have said, I have been completely consistent about this. It is one of the worst proposals I have seen on national security that has ever been proposed to your Lordships’ House. I shall not support it, I hope that others among my noble friends will not support it, and I urge the House to reject it.

[Lord Rooker (Lab)]

My Lords, all I can say in response so far is thank heavens we do not have the coalition Government in power. I support entirely what we have just heard from the noble Lord, the former Independent Reviewer of Terrorism Legislation.

I will choose my words carefully. One of the things that is worth thinking about with legislation like this is that we have the Government today, but we are legislating; we are Parliament. How would the Opposition use this? When I look at my friends in opposition, frankly, I will support the Government to vote this down. I am not prepared to abstain on such a barmy and dangerous amendment, as the noble Lord just said.

I will not go through the amendment. In fact, the noble Lord who moved it did not go through it. He did not explain what it meant by “professional qualifications, achievements” and “public stature” for the appointments. It is preposterous and a nosy parker’s charter into investigatory powers because it does not talk about looking at things; it demands access to all material from an agency and requests information from any agency or government department. There is nothing about the staff of the body. Forget the fact it is envisaged that three out of five members of the board will be of the same political party—it is envisaged to be party political—there is nothing about the security aspects of the staff, let alone the vetting of the people.

It is not, as the amendment says, just about civil liberties. It is in many ways trying to second-guess the powers of the commissioners. It is trying to second-guess the Joint Committee on Human Rights and the parliamentary security committee. We should have nothing to do with it. I hope the noble Lord will think twice if he is thinking about calling a Division on this. They will be laughed out of court.

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[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.