My Lords, I begin by referring to my interest as an unpaid consultant to the solicitors’ firm of which I was for many years the senior partner, but also with an admission of what Members may consider is for me an unusual degree of diffidence. I have to admit to being far from a master of information technology, or indeed any other sort of technology, and therefore that I find the language of the Bill somewhat difficult. As has been stressed on all sides of the debate, here and elsewhere, there is widespread acceptance of the maxim that the first duty of government is the protection of the safety of the citizen; it is also accepted that the second duty of government is the preservation of the citizen’s freedom and privacy. Of course the issue before us is the degree to which these duties can best be reconciled.
It was encouraging that, as we have heard and as the JCHR report affirms, debates in the Commons saw changes being made to the Bill and commitments given to table further amendments as the Bill progresses through this House. The concern of Members of all parties to strike the right balance between the claims of security, privacy and liberty was welcome. We await sight of those amendments at as early a date as possible, and I hope that, unlike our experience with the Housing and Planning Bill of unblessed memory, we will be given the opportunity to consider in draft any proposed regulations before the Bill leaves this House. I especially welcome, as others have done, the Government’s acceptance that there must be a significant role for the judicial commissioner.
The two main areas which I wish to address are those of legal professional privilege—or as I would prefer to put it, client confidentiality, since it is not the legal professional who benefits as such from the alleged privilege—and freedom of the press, including the protection of journalistic sources, both of which featured in the list of matters identified by the Opposition in the Commons as requiring significant attention.
In relation to client confidentiality, as we heard from the noble Lords, Lord Lester and Lord Pannick, many Members have received the joint briefing from the three UK law societies, the Bars of England, Scotland and Northern Ireland, the Institute of Legal Executives, Justice and Liberty. Seven areas of concern are identified. These range from a bar on the targeted and bulk powers, as defined by the Bill, unless a judicial commissioner is satisfied that communications have been made in furtherance of crime, to protection for material when someone outside the UK communicates with a UK lawyer, the protection of data relating to privileged communications, and the extension of safeguards to the Regulation of Investigatory Powers Act, or RIPA as it is known.
The Joint Committee on Human Rights endorses the calls for change in this area, setting out proposed amendments to Clauses 25 and 100. Can the Minister indicate whether, and when, the Government will bring forward amendments to deal with these issues and indeed what view they generally take of the recent report of the Joint Committee on Human Rights?
In relation to press freedom and the protection of journalistic sources, the NUJ points to the potential impact on both journalists and their sources, in the latter case pointing out the risk to journalists who are in war zones or are engaged in investigating organised crime. While it makes a strong case, which I and others support, it would be enhanced if the conduct of the press itself had been above reproach, as the long-running saga that led to Leveson amply demonstrated. Nevertheless, the NUJ is surely right to aver:
“To have meaningful and effective protections for press freedom, the bill needs to be amended to offer a shield clause for journalists and this should apply across all of the powers that are specified in the bill”.
I recognise that it would be helpful to have a definition of a journalist. Would it, for example, include someone who undertook journalistic work while holding down another, full-time, job—for example, the previous Mayor of London?
The News Media Association joins the National Union of Journalists in calling for enhanced protection, as indeed does the Joint Committee in its proposed amendments to Clause 68, which would extend to journalistic sources the same protection as is currently applied to search and seizure under the Police and Criminal Evidence Act 1984. The committee, at paragraph 7.8, points out that,
“the applicant for authorisation is not required to give notice of the application to the media”— an extraordinary departure from due process—while, under the Bill as it stands, the judicial commissioner need find only that there are “reasonable”, albeit in the circumstances untested, grounds,
“for considering that the requirements in the Act are satisfied in relation to the authorisation”.
To what extent are the Government prepared to move on these issues?
Different issues are raised in a briefing received at the weekend—I anticipate that other noble Lords will also have received it—from an organisation called techUK, which raises issues that in its view are likely to cause problems in relation to the storage of data and the costs to the industry, the latter not likely to be resolved by the stated intention that the Government will make an appropriate contribution that must “never be nil”—a remarkable turn of phrase which perhaps the noble and learned Lord can explain after he has been briefed on its meaning. I suspect that neither he nor I quite understand how that phrase managed to get its way into the Government’s response. However, more importantly, the organisation raises further questions about conflicting legal obligations, including EU regulations. The latter of course may not last for long for this country, but this is surely an area in which co-operation between jurisdictions needs to be preserved whatever happens following the referendum.
Finally and importantly, techUK asserts that the Bill threatens to undermine trust in the UK’s digital economy, with its 1.5 million jobs and 15% of GDP. To what extent, therefore, will the Government, including the Treasury and BIS, engage with the industry and indeed with the EU on these issues, and will they consider bringing forward amendments in these areas?