Investigatory Powers Bill — House of Lords, 2016-07-13
Topic: Law and Crime
David Pannick (Crossbench, Unknown): 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.