Protection of Freedoms Bill

My Lords, my noble friend is absolutely right to say that this is a very important matter. It is sad that we should be debating this so late and that it will be the last amendment of the day. I was going to congratulate her on her drafting abilities but, as she admitted, that was the work of others. I was grateful to see that it was a former parliamentary counsel who managed that. Having said that, I appreciate that this is an area on which my noble friend and the Bar Council have strong views and I think that there is some agreement between us on the importance of these issues. I am therefore very grateful that my noble friend brought representatives of the Bar Council to a meeting with me, my officials and my noble friend Lady Stowell last week to discuss this matter further. We all believe that the principle of legal privilege is important and that the ability of a person to seek legal advice in confidence is a key part of our justice system. We also all agree that the privilege must not be abused by lawyers who might themselves participate in or assist with criminal activity. When such communications are taking place it should be possible to target them for surveillance. This amendment would not allow us to go any further than this and we do not agree that there are absolutely no other circumstances where privileged material can be targeted. We believe that there are some occasions, which would be exceptional in nature, where our intelligence and law enforcement agencies may need to target these communications in order to counter a serious threat or to protect a person from serious harm. An example would be where a person goes on a shooting rampage, taking members of the public or perhaps their family, hostage. Our law enforcement agencies may have intelligence to suggest that it is likely that the person will visit their lawyer and seek advice or refuge. In that situation, it is clearly vital that information can be obtained about the whereabouts of those taken hostage. Alternatively, we could take the case of a terrorist planning an attack who may consult his lawyer at the lawyer’s office, where there might be an undercover officer in place, before that attack takes place. The surveillance commissioner may reasonably consider that the undercover officer will obtain information which could be used to avert the attack. I hasten to add that there is no suggestion that the lawyer is in any way involved in the crime or that the person has any intention of trying to involve his lawyer in it. Indeed, the lawyer may well be advising his client in a perfectly proper way and he may even be content for there to be surveillance of his office to assist with the gathering of that crucial information. The lawyer cannot of course waive the legal professional privilege; only the client can do that. What is needed, and what we have with the current regime and safeguards, is a way for surveillance of that conversation to be properly authorised so that it is in compliance with the European Convention on Human Rights and, importantly, so that the crucial information can be obtained. The examples I have given may seem a bit extreme, but we know that scenarios like this can and do happen. In these circumstances it is vital that, with safeguards in place, we are able to act to protect life. My noble friend referred to the decision in the case of McE made by the former Judicial Committee of your Lordships’ House, which made it clear in 2009 that RIPA could be used to target conversations between a lawyer and his client as long as there were sufficient safeguards in place. As the noble and learned Lord, Lord Hope, noted in his judgment when referring to the passage of RIPA through Parliament: "““Parliament was clearly mindful throughout of core rights and interests and of the requirements of the European Convention on Human Rights against the background of which the statute was to be enacted. Neither article 6 nor article 8 imposes an absolute prohibition on covert surveillance of legal consultations, provided it is authorised by law and is proportionate””." The effect of the judgment is that an enhanced authorisation process has to be followed for the authorisation of surveillance of legally privileged consultations. All authorisations are subject to prior external approval. In the case of intelligence agencies, this will be by the Secretary of State; for law enforcement, this will be by the surveillance commissioner. The statutory code of practice makes it clear that both the approving and authorising officers may authorise the use of surveillance only if they are satisfied that exceptional and compelling circumstances exist which make the authorisation necessary. Such circumstances will arise only in a very restricted range of cases, such as where there is a threat to life or limb or to national security. The use of surveillance must be considered likely to provide the information needed to counter the threat. Importantly, any information obtained as a result of the surveillance can only be used to counter the threat—it cannot be used in criminal investigations or prosecutions. We seem therefore to agree with the need to safeguard as far as possible the principle of legal professional privilege, but disagree about the circumstances where there can be surveillance of such conversations. This is a question of judgement and the Government’s view is that, with the correct application of existing enhanced safeguards, there are very occasionally circumstances where a conversation may properly be subject to legal privilege protection but where surveillance is necessary to save life and limb. The Government obviously have a duty to protect citizens, and I do not believe that the public would readily understand or have sympathy with why the law stood in the way of being able to act to protect people. Before I sit down, I would I would like to take this opportunity to advise the House of a point that will be important for Third Reading. Since we are debating RIPA, we have also been giving further consideration to the amendment tabled in Committee by my noble friend Lord Selsdon which sought to exclude from criminal proceedings, save in exceptional circumstances, any evidence derived from covert surveillance that had not been authorised under RIPA. This is a complex area of the law and it remains to be seen whether further legislation is necessary. Were we to conclude that further primary legislation was appropriate, it is only right that I should flag up the possibility of a Third Reading amendment at this time. Having gone through the more detailed response to the amendment of my noble friend, I hope that she will now feel able to withdraw it.