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Lord Thomas of Gresford: The noble Lord must know that legal professional privilege does not cover iniquity. There is no legal professional privilege if a conspiracy exists between the lawyer and the client. What we are talking about is the ordinary situation where perfectly proper legal advice has been given, on many occasions advice to a client to plead guilty having regard to the instructions which he has given. Is this all to be subject to bugging?
Lord Mackay of Drumadoon: The answer to that question posed by the noble Lord is no, because in my submission it would be impossible to bring that within the provisions of Clause 89(3)(a), which talks about the prevention or detection of a serious crime. If the crime has been committed and the accused is in custody, it is difficult to see how bugging would achieve either of these objectives.
Lord Ackner: Before the noble and learned Lord sits down, I wonder if he can help me as to how he envisages the functions of the trial judge. Is the trial judge to carry out a sort of balancing exercise, the interest of the client in non-disclosure being balanced against the public interest in seeing that justice is done?
Lord Mackay of Drumadoon: As a humble Scots lawyer, I would enter with a measure of trepidation into
the question of how judges in England should apply the provisions of Section 78 of the Police and Criminal Evidence Act of 1984. What it provides, as will be well known to many Members of your Lordships' Committee, is a means of dealing with the admission of evidence which would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. That, put in statutory form, is similar to the test in Scotland and I have no doubt whatsoever that judges faced with this new legislation will apply the existing principles to any new provisions that Parliament has enacted. Fairness of the proceedings has always involved, as I have understood it, fairness to the accused or the defendant on the one hand, and fairness to the prosecutor and the public for whom he presents a case on the other. I have little doubt that the judges will be able to cope with that, as no doubt they would have had no difficulty in coping with Section 78 when it was first enacted.
Lord Ackner: Can my noble and learned friend indicate how one assesses fairness to the accused where you are contemplating disclosing documents which are the subject of legal professional privilege?
Lord Mackay of Drumadoon: At this stage we are dealing with intrusive surveillance and the question of admitting evidence, as I understand it, which has been listened to by some means that has involved bugging of one sort or another. As the code will make clear and as indeed is implicit in Clause 89(3)(b) of the Bill, if one were dealing with documents they would fall to be dealt with by search warrants, which would come under the 1984 Act. I think that the practical example posed by my noble and learned friend is one which would be solved by another route.
As I think was made clear by my noble friend Lady Blatch during the Second Reading, a draft code relating to intrusive surveillance has been lodged in the Library and I may make mention of it later on in speaking to the amendments which follow. At this stage I am certainly prepared to give a quite unequivocal undertaking that, it being only a draft code, practical problems such as that raised by my noble and learned friend will be looked at to see whether any addition or amendment to the code would be appropriate. Perhaps at this stage, to forestall any further questions that may arise, I could draw the attention of your Lordships to Amendment No. 137 on the Marshalled List, which makes it clear that this part of the Bill will not come into force until a day falling upon the day on which the code of practice issued under Section 92 of the Act comes into operation.
Lord Lester of Herne Hill: Before the noble and learned Lord sits down, I wonder whether he would be kind enough to clarify one point that is still perplexing me. In answer to the question put by the noble and learned Lord, Lord Browne-Wilkinson, the noble and learned Lord indicated that were intrusive electronic surveillance to take place, for example, in a barrister's chambers, that would be lawful under the Bill as it stands, though, as he said, it would be an abuse.
What I do not understand is what remedy the victim of a breach of personal privacy or the abuse of electronic surveillance would have. Am I right in thinking that the code, in whatever form, is not to be a code that gives rise to an effective legal remedy? I think that is made clear. If that is correct, does the Bill contain any right to an effective remedy for damages or any other remedy for the victim of abusive, intrusive electronic surveillance, breaching legal professional privilege in the way that has been indicated?
9.15 p.m.
Lord Mackay of Drumadoon: The short answer is no, in so far as one is dealing with rights to damages, and so on. The individual has a remedy in that his rights at his trial will be protected. Whether he has suffered any breach of his rights under the European convention and whether any remedy lies there is not for this House to determine in any capacity; it is a matter for the European Court. The Government are satisfied that the Bill as drafted meets their obligations under the convention. Were somebody to challenge that view at a later date, any such proceedings would be defended.
Lord McIntosh of Haringey: The noble and learned Lord the Lord Advocate is a fair-minded and rational man, but he is in an impossible position. It does not do any good for him to say that he is a humble Scots lawyer. He represents the Government; he expresses the collective views of the Government; he has no let-out in that respect. I am the only non-lawyer taking part in this debate and I do not seek to make any excuses on those grounds.
Lord Mackay of Drumadoon: I appear here on behalf of the Government. I do not offer the fact that I am a Scots lawyer as an excuse. However, I defer to other Members of the Committee, particularly the noble and learned Lords on the Cross-Bench, in their knowledge of English law. Were I not to do so, I do not think I would be described as a fair-minded man in the way the noble Lord kindly mentioned a moment ago.
Lord McIntosh of Haringey: I accept that. We are not concerned with personalities or background; we are concerned with arguments. That is the only thing we are concerned with today.
The noble and learned Lord the Lord Advocate has sought to justify a position in which, as he admits, it will be legal under this Bill--and this is a new statutory power--to bug any premises, to tap any conversation, provided that a chief officer of police has given permission for it. He described the provisions in the drafting of this part of the Bill as deliberate. It is indeed deliberate. Let us look at Clause 89(1):
- "No entry on or interference with property or with wireless telegraphy shall be unlawful if it is authorised under this section".
The double negative is clearly deliberate. It is designed to make the possibilities of telephone tapping and wire bugging as wide as possible by ensuring that the only illegality arises in circumstances that are spelt out in detail in this part of the Bill. That is a deliberate way of ensuring that the fail-safe position for legislation is that
telephone tapping and bugging are legal under every conceivable circumstance except those circumstances which are specifically provided for in this Bill. I suggest that that is fundamentally opposed to the constitutional principles of this country.Even in his practical examples the noble and learned Lord the Lord Advocate finds himself in contradiction with his own arguments. He described, quite rightly, the extent to which serious and organised crime is conducted by people he described as businessmen, people who do not dirty their own hands with the details, who do not carry the guns, who do not transport the drugs, who do not consult their lawyers. Those people leave it to their henchmen to deal with lawyers because it is their henchmen who are likely to come before the courts. Those businessmen will not be affected by this amendment; they will not be talking in barristers' chambers, solicitors' offices or prison cells. They are exempt because of their own separation from the dirty end of the crimes that they inspire.
The noble and learned Lord the Lord Advocate said that the principle of legal professional privilege was "an important principle to be borne in mind". The only possible construction one can put on that phrase is that it is an important principle to be borne in mind and then discarded, because the noble Lord the Lord Advocate has discarded it. He has specifically admitted that it is legally possible under this part of the Bill as drafted for bugging to take place, if authorised by a chief officer of police, in barristers' chambers, solicitors' rooms or prison cells. He described it as inconceivable that it would actually happen, but I suggest to the Committee that it is our responsibility to see that the law says that it should not happen.
It is not up to us to depend on the goodwill of anybody after the legislation has been passed. Because the contradictions of his arguments are so severe he went so far as to argue at the end that, if these amendments were carried, the whole fight against crime--again I quote him--would be "virtually if not completely useless". Ministers do not go over the top in that way unless there is something profoundly wrong with their arguments.
The noble and learned Lord the Lord Advocate knows perfectly well, and he has been reminded of it by distinguished lawyers in the course of the debate, that the professional privilege of the crooked lawyers about whom he spoke is not protected because of the doctrine of iniquity. He knows that perfectly well. Yet he chose to put before the Committee the argument about crooked lawyers misusing the system.
There are two parts to Amendment No. 72. I admit that the first part is capable of improvement, in the sense that it talks about telephone tapping and does not sufficiently say that the telephone tapping which should be unlawful is telephone tapping in conditions of legal privilege; in other words, in a solicitor's office, a cell or barrister's chambers. Furthermore, it does not sufficiently recognise the only valid point which could be raised against the amendment; namely, that inadvertent tapping of the other side--the client's side--
of a legally privileged conversation would be difficult to avoid. To that extent the first part of my amendment is defective.
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