Investigatory Powers Bill

Lord Lester of Herne Hill Excerpts

Wednesday 13th July 2016 Lords Chamber

[Lord Rooker (Lab)]

My Lords, listening to the debate as a non-lawyer, I get the impression it is being argued that the legal contribution is supposed to be equal to the ministerial contribution. I reject that utterly. It is the Minister’s job to take the decision. That is where the accountability is at the end of the day—back to Parliament. They are not equal partners in this. The introduction of a judicial role to provide oversight or to ask, “Did you really mean that?” or, “Are you sure you’ve got this quite right?” is not the same as giving equal partnership in the making of decisions; that is not what is intended. Yet the whole thrust of what I have been listening to today is about making them equal. I hope the Government will firmly reject that.

[Lord Lester of Herne Hill (LD)]

My Lords, I had not intended to speak until I had listened to the debate, especially what was said by the noble Lord, Lord Tebbit. During the 50-odd years that I have been at the Bar, one the great developments has been that of public law. When I began at the Bar, there was virtually no judicial interference in or control of ministerial decisions. One of the great developments brought about by judges and judges alone has been the notion that, although Ministers take decisions, they must do so in accordance with the rule of law. Judges are extremely careful to make sure that they do not decide the merits of cases that should be decided by Ministers, but they also say that, although Ministers take decisions, they must do so in accordance with the principles of legal certainty, reasonableness and proportionality. Over the years, a partnership has developed between the judicial branch of government and Ministers and Parliament. I agree with my noble friend Lord Carlile that the principles of judicial review are sufficiently flexible and practical to provide adequate safeguards against abuse. I do not believe that judges in any way usurp the functions of the Executive, nor do I believe that they should. I know of no case in which our judges have done so. For those reasons, I hope I have reassured at least the noble Lord, Lord Tebbit, that there is no undue usurpation of the role of Governments or Ministers, nor is any intended.

[Lord Murphy of Torfaen (Lab)]

The whole purpose of this legislation, whether we agree with it or not, is that there should be a double lock. When I was signing warrants for intercept, it was left to me entirely as Secretary of State. There was no involvement of the judiciary or anybody else, other than the security services providing you with a great deal of information on why you should take a particular decision. The principle behind the Bill is that a judge should look at and review the decision of the Secretary of State. The argument both in the Joint Committee and in the other place has been about whether the judge should take into account necessity and proportionality—which would have been taken into account by the Secretary of State in taking the decision in the first place—in the same way as the Secretary of State, or whether they should look at it simply through the eyes of a judge.

One of the most interesting sessions of the Joint Committee was in the Committee Room upstairs where we interviewed a judge from New Zealand—it was 5.10 am when the judge very happily came to address the committee. That is obviously a very different sort of country. With a couple of million people, they obviously do not have the same number of warrants to deal with as we do in this country. It seemed, however, from what the New Zealand judge was saying, that there was a happy relationship between him and the appropriate government Minister in New Zealand, in that when they looked at a warrant, they did so with the same eyes.

The noble Lord, Lord Carlile, is saying that if you take into account modern judicial review principles, you also take into account proportionality and necessity. But that has to be made clear. I understand that the Government made some changes in the other place with regard to this matter, but the precise role of the judge needs to be made clear. Does he or she look at a warrant simply as a judge or as a human being, and is it in the same way as the Secretary of State does?

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[Lord Keen of Elie]

The noble Lord is, I believe, entirely correct. The sequence will be that the Secretary of State will approve the warrant, the matter will be brought to the attention of the Prime Minister, who will then address it, and only after that will it go to the judicial commissioner, who will then apply his review process to the determination that has been made.

[Lord Lester of Herne Hill]

My Lords, I wonder whether, just for the sake of completeness, I could get an assurance about this. On the first day in Committee the noble Earl, Lord Howe, with his customary courtesy, moderation and generosity, said that the Government would think again about Clause 2 and what I had said about its compatibility with the convention. I fully understand the Government’s reasons for the amendments now in this group, but they are of course parasitic on what is now in Clause 2, so I very much hope that Clause 2 will be improved before the Bill goes much further.

[Lord Keen of Elie]

I note the noble Lord’s observations. I cannot elaborate on the observations made by the noble Earl in response to his question, nor can I necessarily meet the manner in which he responded to him.

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[Lord Carlile of Berriew (LD)]

My Lords, I support the noble Lord, Lord Pannick, in these amendments. I agree with him entirely that LPP is a very important right that is key to the application of the rule of law.

It seems to me that there are two iniquities that form a legitimate target for the interception of communications between lawyers and their clients. The first is where the lawyer is committing a criminal act, which already removes LPP in any event; it does not need any additional provision to declare that.

The second more difficult iniquity, which was adverted to by the noble Lord, is where the lawyer is the innocent instrument of a criminal act. I know that your Lordships’ House does not like anecdotes, particularly not from Members who are lawyers, but may I be permitted a very brief one, which was referred to by the noble Lord, to whom I told it in the car park a couple of nights ago? I defended a man who was arrested, properly, for stealing quite a large amount of explosive from a quarry store somewhere near Blaenau Ffestiniog in north Wales. He had quite an experienced solicitor from Dolgellau who later spent many years as a distinguished Member of another place. He was the duty solicitor who went to see the suspect in the police station—this was before computers. The suspect wrote out a message, which looked perfectly innocent, and asked him to pass it to the suspect’s girlfriend. The solicitor went back to his office, telephoned the girlfriend and passed on the message.

At 2 am the following morning the Metropolitan Police arrived at the suspect’s flat in the East End of London to raid it and take away all evidential material that they could find. There was not much. The carpets, rugs and wall hangings had been removed, as had every cup, saucer, knife and fork. The place had been deep cleaned, complete with disinfectant, and there was no evidence to be found. It is a good example, and a real one, of the way in which a solicitor acting innocently was an instrument of iniquity. It was valuable to the defendant because there was an issue about why he was stealing explosives, and really he could say what he wished when it came to his guilty plea for stealing the explosives because there was no contrary evidence. So it is obvious that, within clear limits, that iniquity should be dealt with.

I turn to the contentious powers, the third category dealt with by the noble Lord, Lord Pannick. I say to your Lordships, particularly to the Minister, that this raises difficult ethical issues for lawyers. Lawyers are entitled to know the answers to these ethical problems if the interception of communications between lawyers and their clients is to be permitted when the first two categories do not apply. I happen to have an office that overlooks a convenient garden square, which has a number of comfortable benches in it—a very attractive place to have a consultation with one’s client on a sunny summer morning or afternoon. However, will I be acting properly as a lawyer if I say to my client, “I think we should go out and have our consultation on the bench out there. There’s a risk that what we discuss while sitting in this very pleasant office will be intercepted, since they can do that and we have no idea whether or not they’re going to, so let’s take the safe course and go and sit on the park bench”? Is that an ethical approach from a lawyer or not? We are entitled to know how the profession should conduct itself.

I would go further than that ethical dilemma. What we are talking about is a balancing exercise. There may be a very small number of cases in which the answer to the question from the noble Lord, Lord Pannick, would be, “Yes, we did obtain some material which was of some use in a case or two over the years”, but, on balance, that will arise extremely rarely. Listening to communications between lawyers and their clients—a thankless task, almost by definition—is most unlikely on many occasions to reveal evidence useful to the authorities. Of course, they have many other ways of obtaining evidence.

I urge the Government to be extremely cautious about this. I urge them to listen not only to the considered views of the noble Lord, but to the carefully prepared and briefed views of the various organisations which have been referred to, including the Bar Council and the Law Society, and not to introduce a third type of non-existent iniquity just for the sake of convenience on the odd occasion that might arise.

[Lord Lester of Herne Hill]

My Lords, I can be remarkably brief—for a barrister. The answer to the question from the noble Lord, Lord Pannick, was given by Mr Justice Felix Frankfurter in a famous phrase in a case many years ago where he said that one should not burn the house down to roast the pig. As the Bill stands, this is exactly the problem. Taking a power of this breadth risks burning the house down to roast the pig.

I do not have the ethical problem referred to by the noble Lord, Lord Carlile of Berriew. Of course he should go and sit in the park in order to prevent the Orwellian nightmare of being snooped upon. That is perfectly ethical, but it would be outrageous if we, as members of the legal profession in Scotland, Northern Ireland, Wales or England, had to take that kind of precaution because of the hypothetical chilling effect of thinking that we were under surveillance.

I do not think it is necessary to take this power and I look forward to listening to the hypothetical or real examples that might be given to seek to justify where we now are. I thoroughly support this Bill, so I hope that the Government will give way on this because at the moment they are in an unattractive position.

[Viscount Hailsham]

My Lords, I want to address Amendment 48 in a few words. I find myself uncomfortably caught between the issues raised by the Bill as drafted and Amendment 48. I agree very much with the criticism of the Bill that has been articulated by the three noble Lords who have already spoken. The test in the Bill as drafted is subjective, very wide and likely to have some of the undesirable consequences identified by the noble Lords. I also think that the amendment is, curiously, too narrow. As I interpret it, it requires compelling evidence of a criminal purpose.

A long time ago, when I was in the Home Office, I had responsibility for one of the prevention of terrorism Bills which was going through the House of Commons. One of the issues we had to consider in Committee was very similar to the point made by the noble Lord, Lord Carlile. What happens when a lawyer receives, through the legal process of discovery, information which is capable of supporting terrorism? We decided as a matter of principle that that information would not be disclosed to the defending lawyer because of the risk of transmission to the client, who might use it for the purposes of terrorism.

I am therefore concerned that while the Bill as drafted is too broad, the amendment is too narrow. It does not capture the situation when an innocent communicator can communicate to a client, who may be a terrorist, information which that person can use for an act of terrorism. I am glad to hear that this is a probing amendment, which has been accurately advanced, and that the Government are minded to be responsive to the anxieties expressed. I hope that the Minister will keep in mind my own anxiety, that while Amendment 48 has a great deal of merit, it is too narrow, while the Bill as drafted is too broad.

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[Lord Keen of Elie]

Let me say this: the matter is not speculative and it is not theoretical, as the noble Lord concedes. I am not aware of any example of this having happened in the past 16 years, but that does not render it speculative. The point is that the example that can be given—the example I gave—is one that could arise in the future. The question then is whether the agencies should have a means to secure that vital intelligence or face a complete brick wall. In this context, we would simply say this. In response to the point made by the noble Lord, Lord Pannick, over the past 16 years, there is no evidence of damage to the rule of law and no evidence of any intrusion on the ability of lawyers to say that their legal advice is confidential because it is appreciated that this is a wholly exceptional power.

[Lord Lester of Herne Hill]

If we assume that the Committee is with the Minister in saying that a wholly exceptional power that has never been used should now be given new parliamentary authority in this Bill, the next question to ask is: what about the intervention of the noble and learned Lord, Lord Brown of Eaton-under-Heywood? He said that there need to be adequate safeguards against abuse and suggested that the adequate safeguard would be that the judicial commissioner should look at the merits of the matter. Perhaps I may remind the noble and learned Lord of a case in the mid-1970s, Klass and others v Federal Republic of Germany, when the Strasbourg court said of surveillance powers that there must be adequate safeguards against abuse. It would help me to know what the adequate safeguards against abuse really would amount to.

[Lord Keen of Elie]

I am obliged to the noble Lord and I am coming to the point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I am not entirely unfamiliar with the case of Klass, and I thank the noble Lord for drawing it to our attention. We recognise that if this exceptional power is to be maintained in the Bill as it is in existing legislation, and if the safeguards in the existing code are to be improved, we must address that very clearly. That is why I have had ongoing discussions with the Bar Councils, the Scottish Bar and the Law Societies to try to achieve some consensus on this point. I therefore welcome the amendment because we are still considering the issue and we recognise the need to ensure that such an exceptional power is properly safeguarded. As to the actual means, we have not come to a final conclusion, but I note the suggestion of the noble and learned Lord, Lord Brown, and I am conscious that that might be one approach. However, I cannot commit us to any single approach at this time. I underline expressly that this power would only ever be employed in exceptional circumstances.

I rather think we are circling the same point. Of course the Government recognise the concerns that people have with regard to legal professional privilege. We understand the critical nature of that privilege and that any intrusion on it calls into question its effectiveness in the context of the rule of law. I go back to the point made by the noble Lord, Lord Carlile, that a balance must be struck here, but if there is a balance, there has to be something on each side. The question now is what we can put in place on our side.