Protection of Freedoms Bill

My Lords, this amendment was suggested to me and drafted by the Bar Council. Although it looks long and a bit daunting, I hope the Committee will understand that the point which it addresses concerns a simple point of principle, and the practice of that principle. The principle is the need to protect legal professional privilege. The Bar Council is seriously concerned that RIPA violates legal professional privilege by permitting authorities secretly to obtain information about privileged communications, in particular private meetings and other communications between a lawyer and a client. I was pleased to be asked to table this amendment as I feel very strongly that a lawyer and his client should be able to speak freely, and that the lawyer should be able to take instructions without fear of them being listened to. The right of someone in custody to a private consultation with a lawyer is expressly protected by the Police and Criminal Evidence Act 1984. The importance of an accused person being able to confer with his lawyer in private has also been emphasised in numerous cases under the ECHR. Indeed, it has been said that it is a fundamental condition on which the administration of justice rests. The need for reform of RIPA was revealed by a case in 2009, In Re McE, when the House of Lords held that Part II of RIPA permits the covert surveillance of meetings between defendants and their lawyers. Noble Lords will be aware of recent high-profile cases involving CHIS—covert human intelligence sources— that have emphasised the need for privilege to be protected expressly; for example, the case of the undercover police officers, PC Mark Kennedy and DC Jim Boyling, infiltrating protest groups pursuant to RIPA authorisations. The Government’s partial response to In Re McE was to make two orders and two codes of practice under powers contained in the Act, one relating to directed surveillance and the other to covert human intelligence sources, which altered the authorisation procedures, but these do not address the fundamental problem. We have already referred to the complexity of RIPA. The new clause has been carefully drafted—I am happy to say not by me—to ensure that covert powers of investigation cannot be used to target legally privileged information, while at the same time ensuring that privilege is not abused for a criminal purpose and that the regime caters for a position where it turns out that the privileged material has been acquired accidentally. The provisions would prevent the targeting of legally privileged material. The draft clause uses the code of conduct as a vehicle for guidance on minimising the risk of accidentally obtaining privileged material. What I understand is called in the trade the ““iniquity exception”” has been reduced in scope. The Police Act 1997 takes matters out of privilege if the item or communication is, "““in the possession of a person who is not entitled to possession of them””" or is held or made, "““with the intention of furthering a criminal purpose””." The Bar Council points out that the first of these exceptions would be counterproductive but it has reduced the scope rather than simply taking out the exception, which would perpetuate the problem that it is seeking to deal with. The wording in subsection (6) of the draft clause defining what cannot be targeted by a CHIS is borrowed directly from one of the 2010 orders made following the case to which I referred. The provision about surveillance is based on evidence from solicitors that legal consultation involving protests or other multiple-defendant situations often take place in private premises—noble Lords will remember that one of the recent examples was of protesters at a power station whose group had been infiltrated by a police officer—and this amendment covers premises in so far as they are used for legal consultations. The other of the 2010 orders to which I have referred makes specific provision for targeting any place in use for legal consultations—in other words, it limits the premises and therefore limits the scope of the order. The definition of legal consultations that has been used is, however, very similar to that used in the order that is already in force. It is a long amendment but, as I say, at the heart of it is a simple but very important proposition. I beg to move.