Investigatory Powers Bill - Second Reading (Continued)

Part of the debate – in the House of Lords at 6:10 pm on 27th June 2016.

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Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat 6:10 pm, 27th June 2016

I, too, like the noble Lord, Lord West of Spithead, and others, welcome this Bill as a significant step towards providing a much-needed clear and transparent basis for the investigatory powers used by the security and intelligence services and law enforcement authorities. I also welcome the safeguards that it contains, some of which need to be strengthened. We must await the expert assistance of David Anderson’s report on the key issue of bulk powers. David Anderson is about the last person left in this country that I really trust on some of these issues.

I am grateful for briefing from the Law Societies of all four corners of the UK, the Bar Council of England and Wales, the Chartered Institute of Legal Executives and the NGOs, Liberty and Justice. I shall talk mainly about legal professional privilege, an issue raised some years ago by my noble friend Lady Hamwee.

It is essential that there is a powerful independent body able to ensure that the vital powers of the state and its agents are not misused. David Anderson QC, the wise and manifestly independent reviewer of terrorism, wrote in his report, A Question of Trust:

“Trust in powerful institutions depends not only on those institutions behaving themselves (though that is an essential prerequisite), but on there being mechanisms to verify that they have done so. Such mechanisms are particularly challenging to achieve in the national security field, where potential conflicts between state power and civil liberties are acute, suspicion rife and yet information tightly rationed”.

The Government’s simplification of the oversight system in the Investigatory Powers Commission is welcome. The commission should have the resources needed to improve transparency, efficiency and public trust in the vital work of the security and intelligence services. The commission needs to be properly funded and have the services of an amicus on difficult warrant applications. It is in the interests of public trust and confidence that the judicial commissioners are appointed by the Prime Minister on the recommendation of an independent appointments committee established by the Commissioner for Public Appointments. I hope that the Minister, who, I am delighted to mention, is a member of my chambers, as is the noble Lord, Lord Pannick—it is a curious, triangular situation—will be able to reply positively to these suggestions.

I turn to legal professional privilege, which has been spoken about powerfully by the noble Lords, Lord Rosser, Lord Pannick and Lord Paddick. It is a constitutional right inherent in the rule of law, which protects the individual’s right to consult a legal adviser in absolute confidence, knowing there is no risk that information will become known to a third party without the client’s clear authority. It is the right to speak safely with a lawyer, and it has been protected by our common law—and I dare say in Scotland, too—since at least the 16th century.

The mere prospect of surveillance creates the risk of a chilling effect on openness of communications with a lawyer. The accuracy of legal advice is an immediate and obvious casualty, but so is the rule of law. Without being able to discuss candidly, defending lawyers might not know about important defences open to a client. Courts may adjudicate cases on a misleading or incomplete basis. When people cannot speak safely with their lawyers, it is not only individual privacy that is affected but the administration of justice as a whole.

There is a danger of miscarriages of justice for individuals in litigation with the state. The Government may respond that there will be no unfair advantage when they monitor individuals’ meetings with lawyers, because they can maintain a Chinese wall between spies and prosecutors. But that was not the finding of the Court of Appeal in 2011, when it struck down the convictions of 20 environmental protestors whose conversations with a lawyer had been monitored by an undercover police officer, Mark Kennedy. Nor was it the finding of the Investigatory Powers Tribunal in April last year, when it ordered GCHQ to destroy illegally intercepted communications between a Libyan rendition victim, Abdel Belhaj, and his lawyer. In mishandling those data, GCHQ rightly admitted that it had broken its own rules and had broken the law.

Prohibiting the targeting of legally privileged communications does not impair the ability to bring dishonest lawyers to justice. Legal privilege attaches only to communications between lawyer and client genuinely aimed at obtaining legal advice. If the consultation is a cover for a conversation whose true aim is to further a criminal purpose, it is not protected. The Bill should forbid deliberately targeting legally privileged communications.

This may be an unnecessary academic, technical point, but I still think it worth mentioning. Reference has been made to an iniquity exception, but it is more accurately described as a constraint on the scope of the privilege. For example, Section 10(2) of the Police and Criminal Evidence Act 1984 states:

“Items held with the intention of furthering a criminal purpose are not items subject to legal privilege”.

That, I think, is the correct approach.

When compelling evidence suggests that the privilege is being abused, a judicial commissioner should be required to authorise covert information-gathering. There should be no grant or modification of a warrant likely to capture privileged communication unless there is prior judicial approval. This protection is written into the Bill in respect of journalists’ sources—see Clause 73. Legal professional privilege needs equal protection. There is also a need for safeguards to ensure that any legally privileged communications intercepted accidentally or incidentally are immediately destroyed.

Like the Joint Committee on Human Rights, I recognise the value of thematic warrants, but the Bill’s provisions concerning the possible subject matter of targeted interception and targeted equipment interference warrants are too broadly drafted. As the JCHR recommends—and I agree with it—the Bill should be amended to circumscribe the possible subject matter of warrants in the way recommended by the Independent Reviewer of Terrorism Legislation. That will ensure that the description in the warrant is sufficiently specific to enable the person unknown, but who is the subject of it, to be identified and to prevent the possibility of large numbers of people being potentially within the scope of a vaguely worded warrant. One is reminded, for those who are interested in history, of the kind of Entick v Carrington problems that were raised in the 18th century.

The JCHR has said that,

“the power to make major modifications to warrants for targeted interception, without judicial approval, is so wide as to give rise to real concern that the requirement of judicial authorisation can be circumvented, thereby undermining that important safeguard against arbitrariness”.

I agree with the JCHR that major modifications to warrants should require approval by a judicial commissioner.

The independent reviewer has said that he knows of no other country in which the Secretary of State holds responsibility for authorising police warrants; judicial authorisation is sufficient. The Home Secretary signs some 1,600 warrants each year, not including national security warrants. If the requirement of her direct approval for police warrants were removed from the Bill, she would have 70% fewer warrants to approve, giving her more time to focus on vital national security interests. That makes good sense.

As I said at the outset, I welcome the Bill and hope that it will be significantly improved, as suggested by my noble friend Lord Paddick and others in the debate. I look forward to the Minister’s response.