Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010

My Lords, on 30 November 2007, the Divisional Court in McE against the Prison Service of Northern Ireland—a case to which the noble and learned Lord referred—held that listening in to privileged conversations between a suspect and his legal advisers, whether in a police station or prison, could not be carried out lawfully under the relevant code in its present form. What was the Secretary of State’s reaction to that decision? She did not appeal. She said that she would consider the matter as one of policy and take steps to remedy the Divisional Court’s concern. However, as the noble and learned Lord, Lord Phillips, pointed out in 2009—appeal case 908, at page 927—that response was unsatisfactory. The Divisional Court did more than express concern at what had happened; it held in the clearest possible terms that the Secretary of State was acting unlawfully. Only now, nearly two and a half years later, are the Government taking steps to remedy the position, so the question arises: did any surveillance of privileged conversations take place in the mean time? If the answer is yes—as one must presume is the case—does it not follow that the Government have been sanctioning a practice that they knew to be illegal? Is that not also a matter of great regret, in addition to the regret that will no doubt be expressed by the noble Baroness, Lady Hamwee, in a few moments? Indeed, in the same case, the noble and learned Lord, Lord Neuberger, described this state of affairs as being more than regrettable, so the question is: what do the Government propose to do about that state of affairs?