Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Lord Mackay of Clashfern

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.