Investigatory Powers Bill — House of Lords, 2016-10-11
Topic: Law and Crime
Alexander Carlile (Liberal Democrats, Centre to centre-left): 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.