Protection of Freedoms Bill

My Lords, I will endeavour to respond as comprehensively as I can to the issues raised in this short debate. I appreciate the concerns raised by the Bar Council but your Lordships will understand that no one can regard themselves as beyond the law or immune from investigation or prosecution. Nevertheless, RIPA recognises the special relationship between a lawyer and client, and puts in place special protections for any covert obtaining of material subject to legal and professional privilege. RIPA already limits obtaining legally privileged material to intelligence and law enforcement agencies investigating serious crime or acting in the interests of national security. In each case, whether it is interception or surveillance, internal authorisation is by senior official—for instance, the director-general of the Security Service or a chief constable. In addition, and crucially, this is then subject to external independent approval, either by the Secretary of State or a surveillance commissioner, before any covert action can be taken. The RIPA codes of practice, which have statutory force, provide further safeguards. The interception code makes it clear that where communications which include legally privileged communications have been intercepted and retained, or where the subject of the interception is to be a lawyer, the matter should be reported to the Interception of Communications Commissioner during his inspections and the material be made available to him, if requested. In addition to safeguards governing the handling and retention of intercept material as provided for in Section 15 of the Act, caseworkers who examine intercepted communications should be alert to any intercept material which may be subject to legal privilege. Where there is doubt as to whether the communications are subject to legal privilege, advice should be sought from a legal adviser within the intercepting agency. Similar advice should also be sought where there is doubt over whether communications are not subject to legal privilege due to the ““in furtherance of a criminal purpose”” exception. The covert surveillance and covert human intelligence source codes make it clear that such independent external approvals will be granted only where there are exceptional and compelling circumstances that make the authorisation necessary—for instance, where there is a threat to life or limb or to national security. My noble friend Lady Hamwee and the noble Lord, Lord Rosser, have already made reference to the McE case. In 2009, the former Judicial Committee of your Lordships’ House ruled in that case that RIPA could be used to authorise the covert surveillance of legally privileged consultations but that this needed to be subject to an enhanced approval process. The enhanced RIPA safeguards were tested in the case of RA v Chief Constable of the Police Service of Northern Ireland where the High Court of Northern Ireland ruled that the RIPA regime was lawful and provided sufficient safeguards against abuse. To be clear, those new safeguards have been tested in a court of law and were found to be robust. In reference to the comments made by the noble and learned Lord, Lord Scott, about the amendment put forward by my noble friend Lady Hamwee, I will of course leave my noble friend to respond to him. Given these existing stringent limitations and safeguards on public authorities obtaining legally privileged material under RIPA, and the fact they have been tested in court, as I have said, and have been found to be robust, I would suggest to my noble friend that this amendment is unnecessary and I invite her to withdraw it.