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Lord Grabiner: My Lords, the noble Lord, Lord Cope, understates his talents. He says that he is not a lawyer. However, I have always viewed the noble Lord as something of a closet lawyer. His legal talents are certainly evident on almost every occasion that he stands at the Dispatch Box.

I do not think that the noble Lord said anything with which essentially I would disagree. The question is whether it is necessary to utilise this amendment in order to deal with the problem. The short point is, in essence, whether legal professional privilege would be implicit as a matter of common law. If the answer is that it would be, it would not be necessary to incorporate an express provision in the Bill to cover the problem. If, on the other hand, that is not the position, I would respectfully agree that it would be necessary to introduce an express clause to that effect.

I must confess that I have not undertaken that research. However, my expectation would be that the common law would step in and that legal professional privilege would be implicit. If such material was sought to be adduced at trial, it would be objected to on precisely that ground, would not be admissible and would be excluded, regardless of the fact that no express provision to deal with it was contained in the statute. However, I suspect that the point should be examined carefully. We must be satisfied that that is the position before reaching a final decision on whether the amendment would be appropriate.

Lord Phillips of Sudbury: My Lords, I concur with what has been said, save that this Bill is such a particular measure and has given rise--and will, I suspect, continue to give rise--to such widespread concern that it may be that, even if a common law entitlement to privilege does obtain, given some of the provisions, such as those contained in Clauses 51 and 52, it would be sensible to write it onto the face of the document.

This measure, perhaps more than most, will be examined closely by foreign firms and foreign lawyers who may not be fully acquainted with the extent and grasp of our common law. I agree with the noble Lord, Lord Grabiner, that this needs to be looked at carefully. However, when the Law Society, the Bar Council and the professional body for Scotland all sing the same tune, there may be something in it. Indeed, a

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whole series of later amendments address broadly the same point. It will be interesting to hear what the Government have to say by way of reassurance here.

Lord Bach: My Lords, in Committee we debated at some length the justification for Clause 16, which keeps intercepted material out of legal proceedings. The noble Lord's amendment appears to bolster the effect of Clause 16 by saying that no intercepted communication is rendered admissible if the original communication would not have been admissible. We agree with the sentiment, but the Government hold the view that this amendment is unnecessary.

First, nothing in Chapter I renders anything admissible in evidence. Except for Clauses 16 and 17, the Bill is not about evidence. Furthermore, Clauses 16 and 17 make interception inadmissible. Thus, anything that would otherwise be admissible remains admissible under the Bill--except intercept product and anything which would otherwise be inadmissible remains inadmissible under the Bill. For example, the Bill does not change the rules about hearsay, corroboration or similar fact evidence. However, I do not think that anyone is suggesting that that fact should be placed on the face of the Bill.

The Bill does not re-write the rules of evidence. If something is inadmissible at common law because it is legally privileged that remains the case for all parts of the Bill. There is a separate question as to whether legally privileged material should be considered at all under any part of the Bill. That is something which we intend to address in the statutory codes of practice. The preliminary drafts, which have been placed on the Home Office website, deal with the subject only tentatively. We welcome comments on what the codes should say.

Our starting point--I believe that this will attract the support of the House--is that proper communications between lawyer and client deserve proper protection from third parties, including the state. In normal circumstances it should be no part of the task of law enforcement to listen to lawyers' communications in order to find out about their clients. That principle must be balanced against other factors, such as the possibility of legal communications being listened to accidentally and that some lawyers may abuse their professional position. We want to get the balance right and to that end look forward to working with the Bar Council, the Law Society of Scotland and others.

It is true that in rare cases, as described particularly in Clause 17(1), intercept material may be adduced in evidence; in other words, it is treated like any other intelligence product. However, that fact does not override the protection given by common law to legally privileged material. If it did so it would require an express provision in the Bill and there is no such provision. The Government are grateful to the noble Lord, Lord Cope, and others who have spoken in this debate. We hope that this response is of comfort both

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to the noble Lord and to those who have been concerned to approach him with regard to this amendment.

Lord Cope of Berkeley: My Lords, the noble Lord, Lord Grabiner, described me as a closet lawyer. I am not quite sure how to take it, but, coming as it does from such a distinguished lawyer, I regard it as an intended compliment. I tried to make clear in moving the amendment that in this particular instance I was merely a mouthpiece for lawyers and altogether a lower form of life, perhaps the noble Lord would believe, than even a closet lawyer.

I pay careful attention to the speeches of both the noble Lord, Lord Grabiner, and the Minister, in particular their observations on the common law. I have the highest, if distant, respect for the common law and never cease to be amazed by it. I am again amazed this evening that the common law can extend to a Bill dealing with such a modern subject as this. Perhaps one should not be surprised by that. The Minister also stated--I paraphrase his response--that nothing in the Bill said that such material would be admissible which, by a series of double negatives, meant that the common law applied.

The noble Lord also made the extremely helpful observation that a good deal of this matter would be addressed in the draft codes of practice and that the Bar Council and others could contribute to that discussion. I believe that that is the right way to carry forward the discussion. The Law Society of England and Wales and the Law Society of Scotland have also raised other questions about legal privilege but not, as far as I am concerned, the particular aspect of it dealt with in this clause. There is a way to discuss this further perhaps in more appropriate fora even than this. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

Clause 20 [Lawful acquisition and disclosure of communications data]:

Lord Lucas moved Amendment No. 25:


    Page 23, line 29, after second ("is") insert ("expressly").

The noble Lord said: My Lords, this amendment just adds the word "expressly". It is really an excuse to draw from the Government some further information on the effects of Clause 21(3) and (4). I am not sure whether initially it would have been obvious to the Minister that that was the purpose of the amendment. I thought that Clause 21(3) was covering a situation where the police would consult BT's telephone directory reverse look-up facilities. But looking at the draft code, that appears to be wrong. At paragraph 9.4 it says that it will only come into effect when the,


    "telecommunications operator is not capable [when] accessing the data by a notice would not be possible [and] when it would be likely to prejudice the investigation".

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I have two sources of puzzlement in this confluence of the code and the Bill. First, I am extremely puzzled as to how an officer will be able to do anything which an ISP cannot. Are we breeding in secret a new breed of electronic policemen? How is it envisaged that such a thing will be possible?

The second aspect I am concerned with is that the confluence of Clauses 20 and 21 would be that if an officer was sent out to collect such-and-such communication data, it would seem to allow him to indulge in any conduct which he felt was reasonable in order to obtain it. He might go to "James Bond" lengths of breaking in and burgling or whatever might amuse him. But he would be exempt from prosecution. His actions would be made legal by the terms of Clause 20. I suspect that I am failing to understand how the code and the Bill work together on this particular aspect. I look to the Minister for enlightenment, but I shall be prepared to accept that it might arrive tomorrow. I beg to move.

Viscount Astor: My Lords, I was most intrigued by my noble friend's introduction of his amendment. As far as I was concerned, at least half of his speech was heavily encrypted. No doubt the Minister will be able to find the key, decrypt it and give an answer.

Lord Bassam of Brighton: My Lords, the amendment was so heavily encrypted that the Minister is entirely puzzled. We had looked very closely at the noble Lord's amendment and decided that the addition of the word "expressly" would have no impact or effect at all. Therefore, the attempt of the noble Lord, Lord Lucas, to probe the confluence of meanings in Clauses 20 and 21 had entirely escaped us.

The noble Lord was generous enough to say that perhaps we could provide him with an answer tomorrow. That is how I would like to leave it. On those terms, I ask him to withdraw his amendment. Perhaps in future he could be a little clearer as to what he wants to probe and where. We shall be more than happy to oblige.


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