Afghan Interpreters: Security Clearance

Lord Pannick Excerpts

Monday 17th June 2019 Lords Chamber

[Earl Howe]

Yes, it may, and the noble Lord is right that that is certainly a risk if it is perceived that the UK is treating anyone unfairly. We are very conscious of that. At the same time, it is not fair on the individual who applies to work—in these cases, for NATO in Afghanistan—to overlook their personal security, that of their families and the measures that would be needed to protect both the individual and their families in those circumstances.

[Lord Pannick (CB)]

My Lords, the noble Earl has said on three occasions now that security clearance is a matter of assessing not just the individual’s loyalty but their personal safety and that of their family. Can he explain how the individual’s personal safety is at greater risk now than when they were in Afghanistan?

[Earl Howe]

My Lords, the threshold for MoD security clearance is as it is because of the intensity of operations and previous security incidents that have occurred in theatre. The protection of our personnel is the highest priority. We are talking not always just about immediate protection from armed force but protection from the risk of coercion and exploitation.

Counter-Terrorism and Border Security Bill

Lord Pannick Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 31st October 2018 Lords Chamber

[Lord Paddick]

I am very grateful to the noble Lord, Lord Kennedy of Southwark, for his support, and for the comments of the Minister. I welcome the fact that the Government will look carefully at Amendment 38. On Amendment 36, I ask that the Government also look at whether, when somebody hires a car, the contract says effectively that the person does not have the right to use that vehicle for an illegal purpose; that could be a gap in the legislation as drafted. I hope that the Minister will appreciate that we are trying to be helpful and supportive in suggesting these amendments.

[Lord Pannick (CB)]

I suggest to the noble Lord that the provision in the Bill is concerned with “a right to use”, which must mean any right to use. It is not confined to a right to use the vehicle for the terrorism purpose that we are concerned about. Therefore, it is not necessary to pursue an amendment here, given that there is a notification requirement if there is any right to use the vehicle; clearly the person has a right to use the vehicle.

[Lord Paddick]

I am very grateful to the noble Lord. I am not sure whether the point I am about to make is contrary to what he has just said but our concern is that that there could be a line in the contract, when somebody hires a car, that says, “You are not entitled to use this car—you have no right to use this car—if you intend to use it for an illegal purpose”. In other words, the contract between the renter and the company will be null and void, and therefore someone has no right to use this vehicle if they intend to use it for an illegal purpose. I am not sure whether words to that effect are part of a vehicle hire contract but it perhaps at least needs to be looked at before we come back to this issue. However, for the moment, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Paddick]

My Lords, I support the amendments in this group. I have added my name to Amendments 39 and 41 but, for some inexplicable reason, not to Amendment 40. I assure the House that that is a mistake. All I will say is that I am sure that the Minister has listened carefully to the noble Lords, Lord Anderson of Ipswich and Lord Carlile of Berriew.

[Lord Pannick]

My Lords, perhaps I may add my name to the long list of noble Lords concerned about the width of the provision in the Bill. I too hope that the Minister will say to the Committee that she and the Government will take this matter away, think about it and come back to it on Report.

[Lord Rosser]

My name and that of my noble friend Lord Kennedy of Southwark are attached to these three amendments. All that needs to be said has already been said and I just wish to indicate my support for the views that have been expressed. I hope that the Government will either accept these amendments or, alternatively, accept the spirit of what has been said, go away and come back with their own proposals on Report.

Investigatory Powers Bill

Lord Pannick Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 2nd November 2016 Lords Chamber

[Lord Paddick (LD)]

My Lords, I support whole- heartedly what the noble Baroness, Lady Hollins, and the noble Lord, Lord Lipsey, have said, and will address the comments of the Minister. He talked about a 10-week public consultation on Section 40 of the Crime and Courts Act 2013 together with Leveson 2 showing government commitment to the issues. My understanding is that Cabinet Office guidelines on consultation say that it should be for a minimum of 12 weeks and should not be over a holiday period, which this only 10-week consultation is. I wonder whether that calls into question the Government’s commitment.

The noble Earl talked about the context of the Bill and its long passage. If the Government are concerned about the sunset clause, which the Bill addresses, why, if the House passes the amendment this afternoon, is no further consideration to be given to it until 15 November—when it could be further considered either this evening or tomorrow, as my noble and learned friend pointed out?

The noble Earl also said that the Bill is not the place to consider this issue. The Public Bill Office clearly disagrees with the Government because, yet again, it has allowed this amendment to the Bill to be considered.

Yes, we must ensure a free press, but that does not mean a press able to do whatever it wants. We need a press that is also accountable, and that is what the amendment is about.

[Lord Pannick (CB)]

My Lords, I cannot support the amendments of the noble Baroness, Lady Hollins. I declare an interest: I have given advice to a number of newspapers on press regulation issues.

There are different views on the wisdom or otherwise of Section 40 and of Leveson part 2, but the merits or dangers of press regulation should not be allowed to determine the issue before the House today. It is very simple. There are two reasons. First, the Bill is vital to national security. This House has spent hours in Committee and on Report improving the Bill’s contents in a non-partisan spirit. Whatever views noble Lords may have on Section 40 and on the failure yet to implement it, that is no justification for the passage of this important Bill to be held hostage by those who wish to further the cause of Section 40. I say to the noble Lord, Lord Paddick, that this is not about whether the amendments are within scope—plainly they are—the point is whether it is justified to hold up a Bill of this nature, a Bill about security, to advance a point of view on press regulation.

The second reason why I cannot support the amendments of the noble Baroness, Lady Hollins, is because whether or not to implement Section 40 is now the subject of a 10-week consultation. I simply cannot understand the objections to the Government having a 10-week consultation. The noble Lord, Lord Paddick, says that it should be 12 weeks; perhaps it should and perhaps it should not, but that is not a substantial point. The noble Baroness, Lady Hollins, and those who agree with her can argue their case about Section 40 and Leveson during the consultation. It is quite indefensible to hold up this vital Bill when the issue about which the noble Baroness is concerned—perhaps rightly—is the subject of active consultation.

[Lord Rooker (Lab)]

My Lords, yesterday, I watched the Secretary of State when she delivered the Statement—the first time I have seen her at the Dispatch Box. I did not see the debate later, but I watched the Statement and all the questions on it. I got the impression that she was really threatening the press about Section 40. The noble Baroness, Lady Hollins, referred to this in another context. I was struck by the number of Conservative Members of Parliament who I would say are people of substance—they were there when I was there; they have been there a long time—who basically threatened IPSO. They made the point that there has to be a different, cheap system of adjudication before going to court. That is what I felt they were pushing for. They will not vote for that today or tomorrow; they will wait for the end of the consultation. I have supported both the noble Baroness and Leveson on more than one occasion, but I think that we should stick to the main issue today, which is Royal Assent for this Bill. I personally do not intend to vote to stop Royal Assent.

Investigatory Powers Bill

Lord Pannick Excerpts

Wednesday 13th July 2016 Lords Chamber

Moved by

[Lord Pannick]

46: Clause 27, page 21, line 6, after “items” insert “presumptively”

[Lord Pannick (CB)]

My Lords, the amendments in this group are in my name and those of the noble Lord, Lord Lester of Herne Hill, and the noble and learned Lord, Lord Mackay of Clashfern. Most but not all of them are also in the name of the noble Baroness, Lady Hayter of Kentish Town. All the amendments concern legal professional privilege—LPP. I hope they do not make the noble Baroness, Lady Jones, or anyone outside the House more suspicious of lawyers. They are probing amendments and designed to encourage the Government to think further on this important subject. They have the support of the Bar Council, the Law Society and various other public interest groups.

I had a very helpful meeting with the noble and learned Lord, Lord Keen, and I understand—I hope that he will be able to confirm this when he replies—that the Government recognise that the Bill needs improvement in this area and that they intend to bring forward amendments on Report. I summarise what I understand to be recognised on all sides. First, I understand the Government and everybody else to accept that LPP—the right of the client to seek and obtain legal advice in confidence—is fundamental to the rule of law. Secondly, everybody recognises that LPP does not apply to the extent that the client is using the discussion with the lawyer as a means to advance a criminal purpose. On Second Reading, I gave the example of the client seeking advice on the best place to hide the loot so the police will not find it; or there is the example mentioned to me by the noble Lord, Lord Carlile of Berriew—what if the client asks the lawyer to pass on a message to a third party which, unknown to the lawyer, tips off that third party? This is the iniquity exception—LPP does not apply. Thirdly, I think we all recognise that the authorities should be able to listen in to the discussions between clients and lawyers if there is good reason to suspect that the iniquity exception applies. Any such access should be under control by the judicial commissioner, and there should be a strict test: are there exceptional and compelling reasons to authorise such access? I do not think any of that is in dispute, but the Minister will say if it is.

Much more difficult—and this is the thrust of these probing amendments—is the question of whether the authorities should be able to listen in to clients’ discussions with lawyers when there is no reason to think that the iniquity exception applies but the authorities have a reason to think that the perfectly proper discussions may reveal some fact which enables the authorities to prevent a terrorist outrage, or identify a person who has previously committed such an atrocity. For example, the client may say to the lawyer during the confidential discussions that on a particular date, at a particular time, the client was at a particular place, which may tip off the authorities and help them to identify a terrorist cell; or the client tells the lawyer, during perfectly proper discussions, that he is innocent of the serious charge because the person who did it was X, and he names X. The authorities may be alerted therefore to X, and follow this up.

These amendments are designed primarily to question whether the authorities should be allowed to listen in to perfectly proper legal confidential discussions where there is no reason to suspect iniquity but—exceptionally, it is said—the authorities may have a reason to want to listen in because they will learn something vital. The Committee would be very much assisted if the Minister could confirm whether I have correctly identified the issue of principle that we will need to resolve on Report.

The Committee would also be very greatly assisted if the Minister could give the Committee some factual information relevant to whether the authorities should have these contentious powers. In particular, can the Minister say whether the authorities can point to any occasions in the past—of course, I am not asking for details of what the occasions were, but whether there were occasions in principle—when the authorities have listened in, as they have the powers to at the moment under the Regulation of Investigatory Powers Act, to perfectly proper legal advice and because of that obtained information which enabled or assisted them to prevent a terrorist outrage or identify a culprit, or other helpful information of that sort? Can the Minister say whether the authorities can point to any occasions in the past where they believed that if only they had listened in to perfectly proper legal advice they would or might have learned something of value in this respect?

I ask for that sort of information because I suspect, although I do not know, that we are being asked to approve an investigatory power over legally privileged discussions which is of purely theoretical value to the authorities—theoretical in the sense that it is exceptionally unlikely that it will ever be used or be of any value. Yet the existence of such a power in the Bill will do enormous damage to the rule of law, because if there is such a power then no lawyer will be able to assure a client that legal advice is confidential. The lawyer would have to say to the client, “It’s possible that the authorities are listening in even though these are perfectly proper confidential legal discussions”. The concern then is that the clients will not speak frankly to their lawyers and proper legal advice cannot be given. Those are real detriments. I look forward to hearing the Minister’s response on these points. I beg to move.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, the Government recognise the importance of legal professional privilege—the client’s privilege—in the context of the rule of law. This is perhaps one of the most important issues that we will consider in the context of the Bill.

The noble Lord, Lord Pannick, outlined the operation of legal professional privilege and explained what is sometimes termed the iniquity exception. He went on to identify what he considered to be the issue of principle that we are concerned with in the context of the amendment and invited me to indicate whether I agreed with his outline of privilege—the iniquity exception—and the principle with which we are concerned. I am happy to concur and accept his clear exposition of the position in that regard. So I shall not elaborate on what is legal professional privilege or the iniquity exception, except to this extent. What is termed the iniquity exception arises where the client is using the conversation with the lawyer in furtherance of a criminal purpose, whether or not the lawyer is a witting party to that. If the lawyer is unwittingly used as a tool or a conduit, the iniquity exception would apply in those circumstances as well; with that, we have no difficulty.

However, there are further circumstances in which the iniquity exception would not necessarily obtain, and when a very important piece of intelligence might become available if the communication was considered by the relevant authorities. I go back to a scenario that I shared with number of noble Lords when we discussed this in recent days. An agency may have intelligence to suggest that an individual is about to carry out a terrorist attack. It knows that he is in contact or about to be in contact with a legal adviser, and it has reason to believe that that contact with the legal adviser might reveal information that could assist in averting the terrorist attack. The example is where the client might refer to his whereabouts. He might say, “I’m in Paris”, or “I’m going to be in Paris tomorrow”, or “I’m in London”, or “I’m going to be in London tomorrow”. It is that piece of intelligence in the course of the privileged communication that is critical. I know that some commentators—and, indeed, the Bar Council—have suggested that that would fall within the iniquity exception; it does not. Indeed, if we try to stretch the iniquity exception, we damage the concept of legal professional privilege, so we must be very careful about how we approach this.

So there is that exceptional situation—and it must be exceptional before any warrant could be contemplated—in which intelligence gleaned from such a conversation would be of critical importance. I stress the word “intelligence” because on occasion it is very easy to refer to this as evidence. Such intelligence would never be admissible in a court of law, so let us be careful about that. We are talking about intelligence as such, not evidence.

The noble Lord, Lord Pannick, suggested that this would be such an unusual event that to approve the power would be to approve a power of purely theoretical value. With great respect to the noble Lord, the fact that something is highly unusual or highly exceptional does not render the power theoretical. The power may not have been employed in the past and it may not be employed in the foreseeable future; that does not render the power theoretical. The occasion may arise, in the face of a terrible terrorist threat, in which such intelligence can be made available to the appropriate agencies. If we bring down a guillotine, LPP will be denied to them. So the power is not theoretical.

The noble Lord, Lord Carlile, made the very good point: we are really dealing here with the question of balance. Should we intrude upon what we see as legal professional privilege—that fundamentally important concept—for the sake of a highly exceptional case in which such intelligence could be critical? There is an element of balance there.

[Lord Pannick]

My Lords—

[Lord Keen of Elie]

If I might continue for a moment, reference was made to the potentially chilling effect—I am not sure about the chilling effect of burning down a house to roast a pig—that this would have on lawyer-client relationships. Indeed, the noble Lord, Lord Pannick, spoke of the enormous damage to the rule of law, with no lawyer able to say that his legal advice was confidential. With great respect, this power has been available to the relevant agencies since 2000. The safeguards that we wish to place in the Bill have been contained in codes of conduct since 2003. Can the noble Lord, Lord Pannick, give me a concrete example of enormous damage to the rule of law since 2000 because of that existing power? Can he give me a concrete example of a lawyer saying to his client, “I can’t give you confidential legal advice because of this exceptional power”, which has existed now for 16 years? I am not aware of any such examples, I have to confess. The noble Lord wanted to intervene, so I shall give way at this point.

[Lord Pannick]

I take the noble and learned Lord’s point that “theoretical” is perhaps the wrong word to use and that “speculative” may be more appropriate. I wonder whether he could answer the question I posed earlier. Given that these powers have been available since 2000, can he tell the Committee whether the authorities have ever used them or whether we are talking in abstract terms about something that may have been required in the past? If it has not been used in the past 16 years, it is speculative.

[Baroness Hamwee]

My Lords, before the Minister responds to that, it seems that he would be in a better position to answer the question than the noble Lord, Lord Pannick, because I cannot see how he could give an example without someone having breached client confidentiality along the way.

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[Lord Mackay of Clashfern]

One possible approach would be to consider what is meant by legal professional privilege. It is a privilege of the account that the client gives to the solicitor of the facts on which the client wishes to be advised, and the advice that the solicitor gives in return to that application. A statement of where, for example, the client is at that particular time is not part of either of those. Therefore, that is not, strictly speaking, covered by legal professional privilege at all. This is a way of looking at this matter that is slightly differently from trying to make conditions on legal professional privilege.

[Lord Pannick]

I thank all noble Lords who have contributed to this debate, particularly those who have provided anecdotes as to their previous experience. I also thank the noble and learned Lord, Lord Keen, because I think the whole Committee recognises that he and the Government are striving to find the right answers to what are undoubtedly very difficult problems. There is a balance between maintaining legal professional privilege and ensuring the security of this country.

I start from the same place as the Minister: legal professional privilege is absolutely fundamental to the rule of law; there is no dispute about that. It seems to me, therefore, that there has to be a compelling justification for allowing intrusion by the authorities into matters that are genuinely covered—not iniquity—by legal professional privilege. The Minister has been very frank: in the past 16 years, there has been no experience of the ability to intrude into genuine legal discussions being of any value to the security forces. I therefore wonder whether it is necessary to have such a power. Its existence, particularly if we were to enshrine it in this Bill, would have—it does have—a damaging effect on clients’ confidence that they are speaking to their lawyers in genuine confidence.

The example the Minister gives—it is a real example, at least in principle—is that the authorities may learn the location of the client, which may tip them off and enable them to prevent a terrorist outrage. It seems to me that that is not part of the privileged material but incidental to it. An acceptable way forward may be that the authorities would have to show and satisfy the judicial commissioner—and maybe the Secretary of State as well—that there is compelling and exceptional evidence of a real threat to life, such that they should be able to listen in so as to obtain this incidental material, and that the authorities would be obliged immediately to dispose of, not retain, any information that is not incidental to legal advice but is the actual legal advice. I remain doubtful but I will wait to see what the Government bring forward at Report stage. No doubt we will return to the subject—we will have to discuss it again—but this has been a helpful debate. I am grateful to noble Lords and I beg leave to withdraw the amendment.

Amendment 46 withdrawn.

Investigatory Powers Bill

Lord Pannick Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Paddick]

My Lords, my noble friend Lady Hamwee and I have Amendments 32 to 36 in this group. These amendments seek to probe the Government’s position and how far they might be prepared to go in adopting, for example, the recommendations that David Anderson made in his report about removing the Secretary of State from the issuing of targeted interception and examination warrants and replacing the Secretary of State, as the person who decides on these warrants, with a judicial commissioner. The volume of warrants that the Home Secretary, for example, has to sign amounts to as many as 10 a day. We are relieved that she does not now have the additional burden of having to run for leader of the Conservative Party, but one can imagine that to give proper consideration to 10 warrants a day is a significant undertaking, in addition to her other responsibilities.

In non-contentious cases, where there is no political aspect, such as law enforcement warrants, where one is dealing with serious crime—with drug dealers, for example—it is difficult to understand why one would need the Secretary of State to consider these issues. We obviously accept that there may be cases where there is political sensitivity, even in the case of serious crime, and it may be that the Bill can be amended to allow either for the judicial commissioner or even the applicant for the warrant to refer the matter to the Secretary of State in those cases. I also accept that in cases of national security—in cases where the security services, for example, are seeking a warrant, particularly where they may be looking at interception of foreign communications, even foreign diplomatic communications—there is a definite need for the Secretary of State’s involvement. However, as I say, the thrust of this group of amendments is to explore why the Government insist on the Secretary of State being involved in 75% of the warrants that, for example, the Home Secretary signs when those warrants appear to be non-contentious and not politically sensitive but simply to do with law enforcement and serious crime. I beg to move.

[Lord Pannick (CB)]

I support what the noble Lord, Lord Paddick, has said, and I too would be grateful for an explanation of why it is necessary or appropriate for the Secretary of State to be involved in the issuing of warrants in relation to non-contentious matters. My understanding—and I should be grateful if the Minister can deal with this—is that the Bill will impose those responsibilities on the Secretary of State in relation to basic policing functions, even though, under existing law, the Secretary of State has no role in the issuing of warrants in such circumstances.

[Lord Strasburger]

My Lords, I spent a lot of time sitting on the Joint Committee, and since then, searching in vain for a cogent reason why the Secretary of State needs to sign off warrants that have no national security or diplomatic import. Why should the Minister spend her valuable time examining and authorising warrants about everyday criminals? We are told that two-thirds or three-quarters—I do not know which; I have heard both figures—of warrants have nothing to do with national security or diplomacy.

The Secretary of State has no role in authorising property search warrants, which arguably are more intrusive, and involve invasion of a person’s home and discovery of information about a far wider range of subjects than a person’s communications. The only reason ever offered is that the Secretary of State is subject to scrutiny by Parliament, whereas a judicial commissioner is not.

When they gave evidence to the Joint Committee I asked two former Ministers who were responsible for authorising warrants how many times they had been held to account by Parliament. Both the noble Lord, Lord Blunkett, former Home Secretary, and Owen Paterson, former Northern Ireland Secretary, said that it had never happened. That was just as well because it is a criminal offence under RIPA for the existence or details of a warrant to be publicly disclosed. Clause 54 of the Bill continues that ban, with a penalty of up to five years in prison. Therefore, the whole notion of parliamentary accountability for Ministers who authorise warrants is a complete myth. It has never happened and the Bill prohibits it.

I expect that the Government will refer to the potential to be held to account by the ISC, but that does not fit the Bill and is not visible to the public. As far as I know—and as far as the noble Lord, Lord Blunkett, knew when he gave evidence—there are no examples of the ISC holding Ministers to account. I should be interested if the Minister can give some examples of when that has happened. I, too, wait with interest to hear the Government’s response to the amendment.

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[Earl Howe]

It is really quite difficult for me to answer the noble Lord’s question on the “Five Eyes”: it has to be a question for the other members of that group. The approach we have taken is consonant with our general wish, as a country, to hold Ministers to account for important decisions taken about national security and privacy, rather than to consign those decisions to the court. Nevertheless, we believe there is a role for a judicial commissioner to approve what Ministers do. That double lock is the formula which most people in the other place were comfortable with. That is probably all I can say on that score. I hope that the noble Lord will reflect on the case of Lee Rigby, which is a good example of how a Minister was directly accountable to Parliament, albeit in secret session but nevertheless fully accountable to a committee of Parliament. I am sure there are other examples where that has occurred.

[Lord Pannick]

Before the Minister sits down, could I test his patience? Will he write to me on the question that I raised, which is whether or not the Bill will expand the scope of the authorisation powers of the Secretary of State to new areas or whether it simply continues the existing scope of those powers? If the Bill does confer an authorisation power on the Secretary of State in relation to a wider scope, could he please explain why?

[Earl Howe]

I should be happy to write to the noble Lord on that point.

--- Later in debate ---

In view of the very significant impact that would flow from these amendments, I invite the noble Lord to withdraw Amendment 37.

[Lord Pannick]

Can the Minister give the Committee a practical example of where it would be necessary and proportionate—the test that he emphasises—to exercise these powers where there is not, to quote the amendment,

“a reasonable suspicion that a serious criminal offence has been or is likely to be committed”?

[Lord Keen of Elie]

I think the noble Lord helpfully makes my point for me. As I said at the outset, we are dealing with apples and oranges. We achieve the same objective by different routes, but I am obliged.

[Lord Pannick]

I am sorry to prolong this but I am not agreeing with the noble and learned Lord, I am asking for a practical example of why the Government are not prepared to accept a “reasonable suspicion” test.

[Lord Keen of Elie]

For example, in the case of a missing person there may be no reasonable suspicion but it may still be necessary and proportionate to grant a warrant in those circumstances. I hope that that is concrete enough.

--- Later in debate ---

[Earl Howe]

My Lords, in moving Amendment 38, I will speak also to Amendments 117, 118, 120, 155, 157, 162, 163, 165, 166, 203, 220 and 223. I recognise that the Opposition and the Scottish National Party raised concerns about trade union protections in the Public Bill Committee in the other place. I know that it has been suggested that investigatory powers may have been used in the past to interfere with legitimate trade union activity.

Allow me to repeat what was said in the Commons. The agencies have never been interested in investigating legitimate trade union activity. The Security Service Act 1989 and the Intelligence Services Act 1994 limit the activities of the agencies. Both Acts make it explicit that the agencies cannot act to further the interests of any political party. It goes without saying that all the agencies take these duties very seriously.

The Government therefore agreed an opposition amendment on Report in the Commons to what is now Clause 20 of the Bill, making explicit that legitimate trade union activity would never be sufficient grounds of itself for an interception warrant application to be considered necessary.

These amendments read across protections from that amendment to all the relevant provisions in the Bill. It would still permit public authorities to apply for a warrant or authorisation, or issue new or varied data retention notices under Part 4, relating to members or officials of a trade union considered to be a legitimate intelligence target, but it makes explicit that legitimate trade union activity would never be sufficient grounds, of itself, for a warrant, authorisation or notice to be considered necessary. Accordingly, I beg to move.

[Lord Pannick]

The noble Earl recognises in his amendment that legitimate trade union activities would not of themselves be sufficient to establish the necessity of a warrant. I wonder whether the Government’s position is that they also recognise that legitimate trade union activities could not be relevant to the issue of a warrant, because the amendment does not go that far. If the Government do not recognise that, can they give a practical example of where legitimate trade union activities—I emphasise legitimate—could even be relevant to the issue of a warrant?

[Earl Howe]

I cannot do so and I am not sure that it is necessary for me to do so, because if, as I have explained, legitimate trade union activity is never sufficient grounds of itself for a warrant, the question of relevance does not arise.

Investigatory Powers Bill

Lord Pannick Excerpts

Monday 27th June 2016 Lords Chamber

[Lord Pannick (CB)]

My Lords, I welcome the Bill. The authorities need up-to-date powers to obtain information to address the real dangers that we all face from terrorism and serious crime. The existing law has simply not kept pace with technological developments. The Government, with the support of the Labour Opposition, have included provisions to protect personal privacy against unnecessary intrusion and to ensure judicial control of access to personal information. The adequacy of these safeguards will need to be carefully considered by your Lordships.

One matter that will require particularly careful consideration in Committee and on Report is the protection of legal professional privilege—LPP—which is the right of clients to maintain the confidentiality of what they tell their lawyers in private. This subject was mentioned by the noble Lord, Lord Rosser, and I will concentrate on it in today’s debate. In 2002, the noble and learned Lord, Lord Hoffman, explained for your Lordships’ Appellate Committee that LPP is,

“a fundamental human right long established in the common law”.

The reason for that is that, unless a client knows that the solicitor and counsel will not disclose what they have been told in confidence, the client will simply not be prepared to speak honestly and openly when seeking legal advice. LPP is, therefore, fundamental to the rule of law.

It is important to emphasise that these rights belong to and benefit the client; they are not privileges for lawyers. There is a so-called iniquity exception to LPP. As Peter Carter QC for the Bar Council told the Joint Committee of both Houses on the Bill, LPP does not apply if, for example, the client seeks advice from a lawyer,

“on where the best place is to stash his stolen loot”.

Clauses 27, 106, 143 and 179 provide some piecemeal protection for LPP in some contexts. Schedule 7 requires the Secretary of State to issue a code of practice which addresses LPP. These matters were discussed in the other place and, on Report on 6 June, the Solicitor-General, Robert Buckland, said that the Government would be working with the Bar Council and the Law Society to consider introducing, in your Lordships’ House, amendments which would,

“recognise the overwhelming public importance of the preservation of legal professional privilege”.—[Official Report, Commons, 6/6/16; col. 950.]

I suggest that the way forward is as follows. First, as recommended by the Joint Committee, in paragraph 537 of its report,

“provision for the protection of Legal Professional Privilege (LPP) in relation to all categories of acquisition and interference addressed in the Bill should be included on the face of the Bill and not solely in a code of practice”.

The Joint Committee rightly accepted the evidence from Colin Passmore of Simmons & Simmons for the Law Society on this point.

Secondly, the Bill must require prior judicial authorisation for the targeting of discussions with a lawyer or if the authorities have reason to believe that they will be intruding on legal advice. Of course, if there is extreme urgency, judicial authorisation needs to be obtained as soon as possible after the event.

Thirdly, the test that the authorities need to meet to satisfy a judge to give authorisation where there is an intrusion in relation to LPP must be a high one. The test should be exceptional and compelling circumstances: that is the criterion set out in Clauses 27 and 106 and it was discussed by the Joint Committee, and those circumstances should indicate a probable cause for believing that the iniquity exception applies. I say probable cause because the authorities cannot know whether the iniquity exception applies unless and until they listen in and examine the results.

My fourth principle for the way forward is that after the authorities have obtained privileged information by listening in or otherwise intruding on legal discussions, they should be prohibited from retaining the fruits of it unless they obtain judicial authorisation that it is within the scope of the iniquity exception.

Much more difficult is that my understanding is that the Government also want to allow the authorities to listen in to legal advice and to use privileged information where there is no reason to think that the iniquity exception applies—that is, that these are perfectly proper legal discussions, with the lawyer giving advice to the client, but there is reason to believe that the surveillance may provide or has provided information of vital importance to preventing serious crime or tracking dangerous people. This is much more problematic. The difficulty is that to allow the authorities access to genuinely privileged information would inevitably mean that clients could no longer be guaranteed confidentiality by their lawyers. This would inevitably deter clients from speaking frankly to their lawyers and therefore undermine the rule of law. Given the fundamental importance of LPP, the Government will need to present a very strong case indeed in Committee and on Report if they seek to persuade noble Lords that such powers are necessary.

Immigration Bill

Lord Pannick Excerpts

Tuesday 26th April 2016 Lords Chamber

[Lord Alton of Liverpool]

My Lords, although I support my noble friend’s amendment, others have spoken to it and I do not wish to be repetitious. I supported the noble Baroness, Lady Lister, on Report: I was a signatory to her amendment then and I am very happy to support her again today, as I hope the House will.

I simply ask whether the noble and learned Lord, when he replies to the points the noble Baroness has set out, will say what his response is to the call by the Royal College of Midwives today for a review of the whole process, as the noble Baroness said. I remind the House of what Stephen Shaw found in his Review into the Welfare in Detention of Vulnerable Persons. He said that,

“detention has an incontrovertibly deleterious effect on the health of pregnant women and their unborn children”.

The Royal College of Midwives states:

“Even if a pregnancy is completely healthy and uncomplicated; the dignity and care that should be afforded all pregnant women is compromised by detention”.

I agree with what the noble Baroness, Lady Hamwee, said. My noble friend Lord Hylton and I visited Yarl’s Wood during the Bill’s passage. We raised the question of pregnant women and, although I personally believe that conditions at Yarl’s Wood have been very significantly improved, it cannot be right to keep pregnant women in any detention centre, and there must be alternatives to that. That is why it is so important to support the noble Baroness’s amendment today.

[Lord Pannick (CB)]

My Lords, I find this much more difficult than some noble Lords. Motion C1 in the name of the noble Lord, Lord Ramsbotham, would limit immigration detention to 28 days, save in exceptional circumstances. I cannot support that.

Immigration detention is confined to cases where there is a realistic possibility of removing the person concerned from this country within a reasonable time. The fact is that that often takes more than 28 days, because of the need to liaise with the country to which the person is being removed and because, very often, the individual concerned does not co-operate with the process.

Furthermore, the law requires that immigration tribunals refuse bail only in circumstances where there is a risk of the person absconding or some other substantive reason for keeping them in detention, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said a few moments ago. It is true, as the noble Lord, Lord Ramsbotham, pointed out, that many of the persons detained have mental problems and many of them do not speak English, but it is also true that many expert bodies provide much-needed advice and assistance—and properly so—to those who are detained. I cannot support a 28-day absolute limit, saving in exceptional circumstances, because the circumstances that I have outlined are far from exceptional; they are quite standard.

Motion C2 in the name of the noble Baroness, Lady Hamwee, would require a bail hearing every 56 days. This is more difficult. I think the Government’s position, approved in the other place yesterday, of a bail hearing every six months, is adequate. The reason is that it is a default provision. It is additional to the right of the individual, advised by all those expert groups, to apply for bail at any time, and to argue at any time that there is now no reasonable possibility of being removed, or that there is no good reason—for example, a fear of absconding—for detention.

I also mention Motions D1 and D2. Motion D1, in the name of the noble Baroness, Lady Lister, would prevent the detention of a pregnant woman, save in the most exceptional circumstances. The problem with that is that it would prevent the detention for removal of a woman who arrives at Heathrow Airport with no basis for entry and who can, if she is detained, be removed from this country, and rightly so, within a short period—for example if she is not making an asylum claim. That is not “the most exceptional circumstances”; it is a fairly standard case. Motion D1 would also, as I understand it, prevent in any circumstances the detention of a pregnant woman who is the subject of a deportation order but who refuses to go voluntarily, who can be removed within a very short period. I cannot support that.

Motion D2, in the name of the noble Baroness, Lady Hamwee, is again more difficult, but I am satisfied on balance that government Motion D is a very substantial change which will protect pregnant women, made in response to the amendment approved by this House.

We ought to bear in mind that what the Government have agreed under subsection (2) of the new provision is that a pregnant woman may not be detained under a relevant deportation power for more than 72 hours or for more than seven days where, and only where, such detention is authorised personally by a Minister of the Crown. The Minister in the other place, Mr James Brokenshire, has responded to the concerns expressed by this House and I am persuaded by the noble and learned Lord, Lord Keen, that this amendment, which was approved in the other place, should be approved.

[Lord Rosser]

While it is welcome that the Government now acknowledge that long-term detention without judicial oversight is unacceptable in relation to considering bail, the amendment moved by the noble Lord, Lord Ramsbotham, relates to required judicial oversight of whether a person should continue to be detained at all beyond 28 days, related to whether the exceptional circumstances of the case require extended detention.

We have a commitment to end indefinite detention in the immigration system. The independent Shaw review into the welfare of vulnerable persons in detention also called for action to end excessive detention. This amendment provides for a presumptive limit on immigration detention of 28 days and requires the Secretary of State to gain judicial approval for any extension beyond that period, which would be permitted only if exceptional circumstances had been shown. I certainly do not wish to reiterate all the arguments that have been made, and I take on board the points made in earlier interventions about keeping it brief, so I shall just say that we shall be voting for the amendment moved by the noble Lord, Lord Ramsbotham.

On Motion D1, as the Minister said, last week the Government announced plans to introduce a 72-hour limit on the detention of pregnant women, extendable to one week with ministerial approval, and a government amendment to provide for this was agreed in the Commons yesterday. That amendment was not in line with the findings of the Government’s independent review by Stephen Shaw into the welfare in detention of vulnerable persons, which found that the presumptive exclusion of pregnant women from detention should be replaced with absolute exclusion. Shaw concluded that immigration detention poses clear health risks to pregnant women and their unborn children and that it is being used more widely than in the “exceptional circumstances” outlined in Home Office guidance.

The amendment moved by my noble friend in the light of the Government’s resistance to an absolute ban has the support of various interested groups on the basis that it is the best that might currently be achievable. However, an absolute ban on the detention of pregnant women remains our objective, and we will seek to deliver it at the first available opportunity, a stance that has the full backing and support of my noble friend Lady Lister of Burtersett.