Counter-Terrorism and Border Security Bill

Lord Pannick Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 14th November 2018 Lords Chamber

[Lord Pannick (CB)]

My Lords, I too am concerned about the subject, and I agree with the comments that have been made. The right to confidential legal advice is fundamental to the rule of law. The right to consult a solicitor is simply pointless if it is not to take place in private—a client will not speak freely in those circumstances. Therefore, any restrictions must be necessary and proportionate. I agree with the noble Lord, Lord Marks, that it is vital to look for more proportionate means of addressing the Government’s legitimate concerns. I also agree with him that a way forward is to adopt the approach that the client ought to be able to speak freely to any solicitor unless there are reasonable grounds to believe that that solicitor will not act in accordance with his or her professional obligations. Regrettably, there have been cases of such solicitors, although they have been very few, and it seems to me entirely disproportionate to prevent access to confidential legal advice because of the misbehaviour of a few rogue solicitors. We can deal with rogue solicitors in other ways.

--- Later in debate ---

[Lord Pannick]

I share the concern about the breadth of the definition of “hostile act” as covering acts which threaten “national security” or,

“the economic well-being of the United Kingdom”.

These concepts are vague to the point of absurdity. No doubt some people would say that the Prime Minister’s Brexit deal threatens the economic well-being of the United Kingdom. I would not share that view, but some people might. Because of the vagueness of these concepts, they would inevitably confer extensive discretionary powers, which are inimical to the rule of law. Because they are so vague, they would inevitably also inhibit perfectly lawful activities.

[Lord Paddick]

My Lords, I do not want to add to the comments that I made in the debate on whether Clause 21 and Schedule 3 should stand part of the Bill, which echoed the comments of other noble, and noble and learned, Lords.

As the noble Lord, Lord Anderson of Ipswich, has said, regulations that we recently considered that were made under the Investigatory Powers Act radically redefined “serious crime” to mean offences which carry a minimum sentence of 12 months’ imprisonment but also all offences involving communication or the invasion of privacy. The Government are quite capable of redefining—and in fact have redefined—serious crime to fit more precisely the powers referred to in different pieces of legislation, even regulations made under a piece of legislation in which the definition of serious crime is different. So I do not agree with the noble Baroness, Lady Manningham-Buller, who mentioned earlier that it would not capture Official Secrets Act offences, because the Government, as has been suggested, can change, have changed and could change the definition of serious crime in relation to Schedule 3 powers.