Investigatory Powers Bill

Lord Pannick Excerpts

Wednesday 13th July 2016 Lords Chamber

Moved by

[Lord Pannick]

46: Clause 27, page 21, line 6, after “items” insert “presumptively”

[Lord Pannick (CB)]

My Lords, the amendments in this group are in my name and those of the noble Lord, Lord Lester of Herne Hill, and the noble and learned Lord, Lord Mackay of Clashfern. Most but not all of them are also in the name of the noble Baroness, Lady Hayter of Kentish Town. All the amendments concern legal professional privilege—LPP. I hope they do not make the noble Baroness, Lady Jones, or anyone outside the House more suspicious of lawyers. They are probing amendments and designed to encourage the Government to think further on this important subject. They have the support of the Bar Council, the Law Society and various other public interest groups.

I had a very helpful meeting with the noble and learned Lord, Lord Keen, and I understand—I hope that he will be able to confirm this when he replies—that the Government recognise that the Bill needs improvement in this area and that they intend to bring forward amendments on Report. I summarise what I understand to be recognised on all sides. First, I understand the Government and everybody else to accept that LPP—the right of the client to seek and obtain legal advice in confidence—is fundamental to the rule of law. Secondly, everybody recognises that LPP does not apply to the extent that the client is using the discussion with the lawyer as a means to advance a criminal purpose. On Second Reading, I gave the example of the client seeking advice on the best place to hide the loot so the police will not find it; or there is the example mentioned to me by the noble Lord, Lord Carlile of Berriew—what if the client asks the lawyer to pass on a message to a third party which, unknown to the lawyer, tips off that third party? This is the iniquity exception—LPP does not apply. Thirdly, I think we all recognise that the authorities should be able to listen in to the discussions between clients and lawyers if there is good reason to suspect that the iniquity exception applies. Any such access should be under control by the judicial commissioner, and there should be a strict test: are there exceptional and compelling reasons to authorise such access? I do not think any of that is in dispute, but the Minister will say if it is.

Much more difficult—and this is the thrust of these probing amendments—is the question of whether the authorities should be able to listen in to clients’ discussions with lawyers when there is no reason to think that the iniquity exception applies but the authorities have a reason to think that the perfectly proper discussions may reveal some fact which enables the authorities to prevent a terrorist outrage, or identify a person who has previously committed such an atrocity. For example, the client may say to the lawyer during the confidential discussions that on a particular date, at a particular time, the client was at a particular place, which may tip off the authorities and help them to identify a terrorist cell; or the client tells the lawyer, during perfectly proper discussions, that he is innocent of the serious charge because the person who did it was X, and he names X. The authorities may be alerted therefore to X, and follow this up.

These amendments are designed primarily to question whether the authorities should be allowed to listen in to perfectly proper legal confidential discussions where there is no reason to suspect iniquity but—exceptionally, it is said—the authorities may have a reason to want to listen in because they will learn something vital. The Committee would be very much assisted if the Minister could confirm whether I have correctly identified the issue of principle that we will need to resolve on Report.

The Committee would also be very greatly assisted if the Minister could give the Committee some factual information relevant to whether the authorities should have these contentious powers. In particular, can the Minister say whether the authorities can point to any occasions in the past—of course, I am not asking for details of what the occasions were, but whether there were occasions in principle—when the authorities have listened in, as they have the powers to at the moment under the Regulation of Investigatory Powers Act, to perfectly proper legal advice and because of that obtained information which enabled or assisted them to prevent a terrorist outrage or identify a culprit, or other helpful information of that sort? Can the Minister say whether the authorities can point to any occasions in the past where they believed that if only they had listened in to perfectly proper legal advice they would or might have learned something of value in this respect?

I ask for that sort of information because I suspect, although I do not know, that we are being asked to approve an investigatory power over legally privileged discussions which is of purely theoretical value to the authorities—theoretical in the sense that it is exceptionally unlikely that it will ever be used or be of any value. Yet the existence of such a power in the Bill will do enormous damage to the rule of law, because if there is such a power then no lawyer will be able to assure a client that legal advice is confidential. The lawyer would have to say to the client, “It’s possible that the authorities are listening in even though these are perfectly proper confidential legal discussions”. The concern then is that the clients will not speak frankly to their lawyers and proper legal advice cannot be given. Those are real detriments. I look forward to hearing the Minister’s response on these points. I beg to move.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, the Government recognise the importance of legal professional privilege—the client’s privilege—in the context of the rule of law. This is perhaps one of the most important issues that we will consider in the context of the Bill.

The noble Lord, Lord Pannick, outlined the operation of legal professional privilege and explained what is sometimes termed the iniquity exception. He went on to identify what he considered to be the issue of principle that we are concerned with in the context of the amendment and invited me to indicate whether I agreed with his outline of privilege—the iniquity exception—and the principle with which we are concerned. I am happy to concur and accept his clear exposition of the position in that regard. So I shall not elaborate on what is legal professional privilege or the iniquity exception, except to this extent. What is termed the iniquity exception arises where the client is using the conversation with the lawyer in furtherance of a criminal purpose, whether or not the lawyer is a witting party to that. If the lawyer is unwittingly used as a tool or a conduit, the iniquity exception would apply in those circumstances as well; with that, we have no difficulty.

However, there are further circumstances in which the iniquity exception would not necessarily obtain, and when a very important piece of intelligence might become available if the communication was considered by the relevant authorities. I go back to a scenario that I shared with number of noble Lords when we discussed this in recent days. An agency may have intelligence to suggest that an individual is about to carry out a terrorist attack. It knows that he is in contact or about to be in contact with a legal adviser, and it has reason to believe that that contact with the legal adviser might reveal information that could assist in averting the terrorist attack. The example is where the client might refer to his whereabouts. He might say, “I’m in Paris”, or “I’m going to be in Paris tomorrow”, or “I’m in London”, or “I’m going to be in London tomorrow”. It is that piece of intelligence in the course of the privileged communication that is critical. I know that some commentators—and, indeed, the Bar Council—have suggested that that would fall within the iniquity exception; it does not. Indeed, if we try to stretch the iniquity exception, we damage the concept of legal professional privilege, so we must be very careful about how we approach this.

So there is that exceptional situation—and it must be exceptional before any warrant could be contemplated—in which intelligence gleaned from such a conversation would be of critical importance. I stress the word “intelligence” because on occasion it is very easy to refer to this as evidence. Such intelligence would never be admissible in a court of law, so let us be careful about that. We are talking about intelligence as such, not evidence.

The noble Lord, Lord Pannick, suggested that this would be such an unusual event that to approve the power would be to approve a power of purely theoretical value. With great respect to the noble Lord, the fact that something is highly unusual or highly exceptional does not render the power theoretical. The power may not have been employed in the past and it may not be employed in the foreseeable future; that does not render the power theoretical. The occasion may arise, in the face of a terrible terrorist threat, in which such intelligence can be made available to the appropriate agencies. If we bring down a guillotine, LPP will be denied to them. So the power is not theoretical.

The noble Lord, Lord Carlile, made the very good point: we are really dealing here with the question of balance. Should we intrude upon what we see as legal professional privilege—that fundamentally important concept—for the sake of a highly exceptional case in which such intelligence could be critical? There is an element of balance there.

[Lord Pannick]

My Lords—

[Lord Keen of Elie]

If I might continue for a moment, reference was made to the potentially chilling effect—I am not sure about the chilling effect of burning down a house to roast a pig—that this would have on lawyer-client relationships. Indeed, the noble Lord, Lord Pannick, spoke of the enormous damage to the rule of law, with no lawyer able to say that his legal advice was confidential. With great respect, this power has been available to the relevant agencies since 2000. The safeguards that we wish to place in the Bill have been contained in codes of conduct since 2003. Can the noble Lord, Lord Pannick, give me a concrete example of enormous damage to the rule of law since 2000 because of that existing power? Can he give me a concrete example of a lawyer saying to his client, “I can’t give you confidential legal advice because of this exceptional power”, which has existed now for 16 years? I am not aware of any such examples, I have to confess. The noble Lord wanted to intervene, so I shall give way at this point.

[Lord Pannick]

I take the noble and learned Lord’s point that “theoretical” is perhaps the wrong word to use and that “speculative” may be more appropriate. I wonder whether he could answer the question I posed earlier. Given that these powers have been available since 2000, can he tell the Committee whether the authorities have ever used them or whether we are talking in abstract terms about something that may have been required in the past? If it has not been used in the past 16 years, it is speculative.

[Baroness Hamwee]

My Lords, before the Minister responds to that, it seems that he would be in a better position to answer the question than the noble Lord, Lord Pannick, because I cannot see how he could give an example without someone having breached client confidentiality along the way.

--- Later in debate ---

[Lord Mackay of Clashfern]

One possible approach would be to consider what is meant by legal professional privilege. It is a privilege of the account that the client gives to the solicitor of the facts on which the client wishes to be advised, and the advice that the solicitor gives in return to that application. A statement of where, for example, the client is at that particular time is not part of either of those. Therefore, that is not, strictly speaking, covered by legal professional privilege at all. This is a way of looking at this matter that is slightly differently from trying to make conditions on legal professional privilege.

[Lord Pannick]

I thank all noble Lords who have contributed to this debate, particularly those who have provided anecdotes as to their previous experience. I also thank the noble and learned Lord, Lord Keen, because I think the whole Committee recognises that he and the Government are striving to find the right answers to what are undoubtedly very difficult problems. There is a balance between maintaining legal professional privilege and ensuring the security of this country.

I start from the same place as the Minister: legal professional privilege is absolutely fundamental to the rule of law; there is no dispute about that. It seems to me, therefore, that there has to be a compelling justification for allowing intrusion by the authorities into matters that are genuinely covered—not iniquity—by legal professional privilege. The Minister has been very frank: in the past 16 years, there has been no experience of the ability to intrude into genuine legal discussions being of any value to the security forces. I therefore wonder whether it is necessary to have such a power. Its existence, particularly if we were to enshrine it in this Bill, would have—it does have—a damaging effect on clients’ confidence that they are speaking to their lawyers in genuine confidence.

The example the Minister gives—it is a real example, at least in principle—is that the authorities may learn the location of the client, which may tip them off and enable them to prevent a terrorist outrage. It seems to me that that is not part of the privileged material but incidental to it. An acceptable way forward may be that the authorities would have to show and satisfy the judicial commissioner—and maybe the Secretary of State as well—that there is compelling and exceptional evidence of a real threat to life, such that they should be able to listen in so as to obtain this incidental material, and that the authorities would be obliged immediately to dispose of, not retain, any information that is not incidental to legal advice but is the actual legal advice. I remain doubtful but I will wait to see what the Government bring forward at Report stage. No doubt we will return to the subject—we will have to discuss it again—but this has been a helpful debate. I am grateful to noble Lords and I beg leave to withdraw the amendment.

Amendment 46 withdrawn.