Investigatory Powers Bill — House of Lords, 2016-10-11
Topic: Law and Crime
Sally Rachel Hamwee (Liberal Democrats, Centre to centre-left): My Lords, I was wondering whether the noble and learned Lord, Lord Mackay of Clashfern, wanted to speak to his amendment before I came in with my rather more disparate ones. First, I thank the Government very much for the significant amendments which the noble and learned Lord has just introduced. The House will understand that, being members of the legal profession, the noble Lord, Lord Pannick, and my noble friend Lord Lester of Herne Hill were not leaving it there but were going to try to pin everything down. I have already given the apologies of my noble friend Lord Lester, and I need to give those of the noble Lord, Lord Pannick, because of the religious holiday starting just about now. I also thank Tom Hickman of counsel, who drafted the amendments to which I will speak, instructed by the Law Society of England and Wales. As all the dramatis personae seem to come from the same chambers, I did suggest they might have got together over a cup of tea, but that did not happen Amendment 27 is an amendment to the amendment expanding the meaning of "exceptional and compelling circumstances". The government amendment provides that the public interest in obtaining the information must outweigh the public interest in the confidentiality of it. We are of course talking about items subject to legal privilege, and the amendment would provide that it should "clearly" outweigh that second interest. I do not want to get into an argument here, but I suppose a current example would be whether 52 to 48 is a clear difference in the balance of concerns. Where a balance is being struck, it might well be one which is teetering, or where one consideration outweighs the other but barely, so is it not right to say that one public interest in this situation should "clearly" outweigh the other for the provisions to operate The next amendments also relate to the use of the intercepted material where the circumstances override privilege. The Bill specifies only such circumstances where a warrant is sought with the express purpose of obtaining legally privileged material or where this is the likely result of the interception. It seems to the Law Society that the principle should apply with equal force when privileged material is obtained as an unintended by-product of interception—for example, in circumstances where a warrant is sought to intercept the telephone of a suspected serious criminal who is not known to have contact with a lawyer but who, after the warrant is obtained, instructs a lawyer and speaks with him or her on his telephone The Bill as drafted provides that whenever material is retained, the Investigatory Powers Commissioner must be notified, but the Bill should make it clear that the commissioner should allow use of the material only in exceptional and compelling circumstances, and have express power to direct that the material not be further used, or that it should be destroyed. The amendments to the new clause after Clause 52 and those to the amendments to Clause 144 would address this Finally, there are proposals for protection in the Bill for privileged material in the context of communications data. The Government have accepted the principle of such protection but have proposed that it be addressed by the code. The amendment in question seeks to put the provisions into the Bill and not leave the matter to a code, which of course has a different status. It may be a more flexible document, but this issue is so important that a clause closely analogous to that requiring independent authorisation for information which could disclose a journalist’s source, which is in the Bill, should be provided to protect confidential access to legal advice I know that the noble and learned Lord has spent a good deal of time considering the detail of these amendments as well as the structure the Government now have, and I am grateful to him for the meeting he held with various legal luminaries and me yesterday. I hope he can accept some or all of these amendments, or help the House with a way forward in capturing in the Bill the points made by them, if not precisely in this form.