| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Baroness Miller of Hendon: My Lords, I beg to move that the House do now adjourn during pleasure until 8.25 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.11 to 8.25 p.m.]
Police Bill [H.L.]
Consideration of amendments on Report resumed on Clause 91.
Lord McIntosh of Haringey moved Amendment No. 27:
The noble Lord said: My Lords, I rise to move Amendment No. 27 and there are probably some consequential amendments. I shall speak also to Amendments Nos. 28 and 40. These amendments are concerned with the extremely important issues of legal professional privilege and of privilege for other forms of communication which in the past have been protected by Section 10 of the Police and Criminal Evidence Act 1984. I refer to communications involving journalists, doctors, and comparable people.
This matter was mentioned on a number of occasions in the lengthy debate on Amendment No. 24. That was very worthwhile because it is evident that there is very considerable concern about the risk, in particular to legal professional privilege, of what the Government are proposing. I confess that I have not had time to do a textual analysis enabling me to say what will be the effect, if any, of the amendments which have been carried on legal professional privilege and on Section 8 of the Police and Criminal Evidence Act. I rather suspect that they will not affect it.
At the Committee Stage I moved amendments which gained some support around the Chamber but which I had to withdraw because they were defective in the sense that they would have prohibited communication between, for example, a lawyer and his client even if that communication had originated in the client's home rather than on the lawyer's premises. We had to think very carefully about how to achieve legal professional privilege.
The conclusion to which we came was that we should recognise the fear which Government Ministers expressed about the abuse of legal professional privilege. We discussed in Committee the whole issue of iniquity where one has, not to put too fine a point on it, a crooked lawyer who is seeking to break the law or evade the penalties of the law in the way that he communicates with his client. We thought that we ought to take account of that possibility in our amendments.
Amendment No. 27 relates to legal professional privilege and Amendment No. 28 to the others. We provide that the authorising officer or, having had great foresight, any other person, who is required to approve action under this clause--that, of course, now means one of the commissioners--has to be satisfied that it is likely that an abuse of legal privilege will be occurring at the place which is the subject of the application. We go on to define "subject to legal privilege".
I believe that the amendment meets the objections which the Government raised to the way in which we approached legal professional privilege in the past. I believe that it deals with the problem which was raised of abuse of legal professional privilege. It is an absolutely essential safeguard for the way in which law is conducted in this country. I recall that the noble Lord, Lord Thomas of Gresford, spoke movingly about his work in countries where, although they purport to conform to the British legal system, a lawyer cannot be sure when talking to his client that he is not being bugged and improper use is not being made of what he is saying. It is essential that we should keep that kind of banana republic law out of this country. I believe that these amendments do so. I beg to move.
Lord Hacking: My Lords, in moving this amendment, the noble Lord, Lord McIntosh, said that he had not had time to assess the effect of the two amendments that your Lordships approved but that he rather suspected--I think I correctly quote his words--that legal privilege would not be affected.
I try to bring him some comfort in opposing his amendment by saying that there is a double protection now supplied. First, there is the commissioner. The intrusion into a lawyer's office is a matter which the commissioner, under the amendment successfully moved by the noble Lord's party, will take into account. I am not sure that both protections will remain in the Bill after it has been through your Lordships' House but certainly as it stands at the moment there is the second protection of the judge under the amendment successfully moved by the Liberal Party. Therefore I approach this amendment now with some care.
I do so because there are all manner of persons in privileged positions who receive confidential information from those to whom they speak. For example, there are doctors. We heard in the intervention earlier in the debate about the position of doctors. There are clinical psychologists. There are all manner of people working in social services, and there are priests.
As a lawyer, I am uncomfortable that the legal profession--which performs a very important function in society in looking after clients--should be singled out when there are so many others who receive confidential information in privileged circumstances.
Lord McIntosh of Haringey: My Lords, I am grateful to the noble Lord for giving way. I said that Amendment No. 28 covers the other examples that he has given. It embraces those communications covered by Section 10 of the Police and Criminal Evidence Act 1984. I did not spell out in detail what is covered, although I referred to doctor's surgeries and to journalists. Amendment No. 28, which is a comparable amendment to Amendment No. 27, specifically covers the other kinds of confidential communication to which the noble Lord referred.
Lord Hacking: My Lords, I apologise to the noble Lord. I may be at fault because I was not in the House when he rose to move the amendment. Perhaps I missed some of his earlier words. I should like to look at them in Hansard and consider the matter again.
My immediate response is still the same; namely, that the amendment singles out special protection for the consultation between the legal profession and members of the public. On that ground and that ground alone, I remain uncomfortable with it.
Lord Thomas of Gresford: My Lords, the noble Lord, Lord Hacking, will know that legal professional privilege is a very specific type of privilege in any event. It has to be contrasted with the confidentiality that exists between the doctor and patient, the psychotherapist and patient, the priest and penitent and so on. It is a relationship recognised by the courts and has, up to now, been recognised because it is thought that such a degree of privilege between client and lawyer is in the public interest. Why is it in the public interest? It is because it is essential that the client should have confidence in his legal adviser at the point where he faces criminal charges. That is a confidence which must be maintained.
At times, listening to the debates on the Police Bill, it has seemed to me that there has been far too much mention of crooked lawyers who conspire with their clients to defeat justice. That may perhaps be a popular press point of view but it is very far removed from the truth. As I said in Committee, it must be appreciated that lawyers are concerned to advise clients in the clients' best interests. That does not necessarily mean to get them off. If a person has committed a criminal offence, it may be, if it is a very serious criminal offence, that the aim of the lawyer is to get him a life
It is essential that the lawyer can talk to his client and obtain, if he can, the truth from his client. The successful lawyer is the lawyer who gains the trust and confidence of his client so that he will tell him the truth. With that truth, if it is the truth, the lawyer can achieve an aim. It may be to get a not guilty verdict, a period of years or a life sentence--whatever that aim may happen to be.
What is iniquitous in this Bill as it is framed on the question of legal professional privilege is that it interferes in the very delicate balance that exists in an adversarial system. For better or worse, the feature of the criminal justice system of this country--in which noble Lords have many times expressed confidence--is that it is an adversarial system whereby one side puts forward its case, the other side does the same, and an impartial judge and perhaps a jury or finder of fact stands between the two and comes to a conclusion.
What happens when bugging is permitted? I have been involved in bugging cases. What would happen with bugging of lawyers' offices is that one side would obtain inside information of what his adversary was doing--the discussions he was having with his clients, the advice that he was giving, and the aims or goals they were seeking to achieve. That is putting into the hands of one side, and obviously into the hands of the police and prosecution, a weapon which, under our adversarial system as it has grown up, that side should not have.
That is why we agree with the amendment now put forward to confine the possibility of bugging lawyers' offices or any place where a communication subject to legal privilege is taking place to a situation where it is likely that an abuse of legal privilege will be occurring. That does not happen very frequently. It does not mean that a lawyer is giving advice to his client in a proper manner or receiving his confidence in a proper manner. It means that a lawyer has stepped over the boundary and become a criminal himself. That is where the abuse of legal privilege will arise. It is only in that extreme situation and in very rare cases--in my own experience over 30 years I can think of only two or three cases where a lawyer became involved in the criminality of his clients--that the bugging of a lawyer's offices should be allowed. In any other situation, the confidence and trust of the client in his adviser must be maintained. That is the foundation and basis of our system.
Page 33, line 37, at end insert--
("( ) Where the action taken would involve an entry on or interference with property or with wireless telegraphy at--
(a) the place of business of a professional legal adviser; or
(b) another place in or at which communication subject to legal privilege is taking place between a professional legal adviser and his client,
the authorising officer and, if applicable, any other person who is required to approve action under this section must (in addition to the other requirements of this section) be satisfied that it is likely that an abuse of legal privilege will be occurring at the place which is the subject of the application, and, in this section, the term "subject to legal privilege" has the same meaning as that given to it in section 10 of the Police and Criminal Evidence Act 1984.").
8.30 p.m.
Next Section
Back to Table of Contents
Lords Hansard Home Page