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Lord Browne-Wilkinson: My Lords, the House now has a moderate number of people to consider amendments which, if they had come alone and were not succeeding what we had earlier this evening, would each have been regarded as of the highest importance.

I have had a chance to analyse a little the inter-relationship between what happened earlier this evening and what we have before us now. These amendments remain of very great importance because whether you have an approving judge, an approving commissioner or an approving chief constable, he has to

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approve the action within the parameters laid down by the Act. I am a lawyer but I am not going to bang on any more about legal privilege.

Your Lordships earlier heard that the doctors are enormously concerned about their confidences. You may not have heard it in the House but you will have read it in the press indirectly that the press is concerned about the confidential sources that it enjoys. Nobody has mentioned it so far but there is also the matter of priests and confessions. All such confidential relationships are covered by these amendments.

The purpose behind this is not to prevent the police taking real evidence where a privilege is being abused; if you can show an abuse of a privilege, you can move. What is not right is that all these confidential relationships--lawyer and client, doctor and patient, and all the rest--should be exposed to bugging without proof of suspected abuse. Poor, miserable amendment No. 40, which has so far evaded consideration, actually deals with the giving in evidence of privileged material against the accused--something which to a lawyer would be a very remarkable thing.

I am speaking to go on the record more than anything else, in the hope that the Government will consider this position. When the Police and Criminal Evidence Act was passed in 1984, enormous care was taken to try to adjust the balance between privilege on the one hand and the interests of the administration and enforcement of justice on the other. Very careful safeguards were put in for all these confidential relationships. The purpose of these amendments is to ensure that those carefully worked-out safeguards are preserved and the information obtained not in documentary form, which is what we have had up until now, but in oral form, transcribed and recorded so as to be available in the way that previously documents had been available.

I am here in this empty House simply to stay for amendments which are regarded as residuary but which are very important. I cannot help feeling that, if the Government applied their mind to this again, they would see that, true as it is that there must be the power to bug people who are abusing their position of confidence--that, as I understand it, this preserves--what ought not happen is that these positions of confidence should be more available to modern systems of artificial surveillance than they have been previously under the 1984 Act.

I hope that this will not be regarded as a little bit of flibbertigibbet. We are talking about confidential relationships which have been valued in our society and in our law.

8.45 p.m.

Lord Hutchinson of Lullington: My Lords, once again the whole House owes a tremendous debt of gratitude to the noble and learned Lord, Lord Browne-Wilkinson, whom I was glad to hear emphasising the vital importance of the debate that we are having in this House which is so sparsely attended. Unlike him, I shall bang on for a moment or two about the matter of legal privilege. I want to be perfectly clear about what I am banging on about so that we all know where we start.

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It is clear that the position of the Government is that it will not be unlawful under this Bill to secretly bug or break into barristers' chambers or lawyers' chambers or to bug police or prison cells when conferences are taking place with accused persons or with persons who are suspected of having committed offences. Secondly, there cannot be any exemptions to this. Thirdly--to get it out of the way--we are not dealing with iniquity; everybody agrees that if a lawyer is suspected of being involved in any form of criminal offence that is a totally different matter and is not what we are dealing with in this debate. Fourthly, in talking about legal privilege it is perfectly clear that this is not a privilege for the lawyer, that it brings no advantage to the lawyer, that it has nothing to do with a lawyer's privilege. It is the privilege of the citizen who goes to consult a lawyer. It is his privilege, it is not the lawyer's privilege. I hope that that is the basis on which we are discussing this matter. The Minister has said that the protection--although there can be no exemptions--will be the judge at trial. He will decide if the evidence has been obtained illegally or unfairly, and that is the ultimate protection. Lastly, the Minister says it is difficult to visualise it ever being necessary to allow authorisation of intrusion into a lawyer's chambers.

Let me spell out some of the circumstances in which intrusion is likely to be of substantial value in the detection of serious crime from the point of view of the police. In a conference with a barrister or solicitor the suspect, the member of the public, is very likely to mention his associates, very likely to mention his colleagues. From the police point of view, they would be his co-conspirators. He is very likely to mention where he banks his money. From the police point of view, that would be the proceeds of crime. He is likely to mention where his holiday home is. From the police point of view, that is where he will disappear to and get out of the jurisdiction. He is likely to mention whether he suspects that the police suspect him for some reason or another. That is enormously important from the police point of view. And, of course, he might mention what his defence would be if the police were to suggest that he had done anything unlawful.

If a chief constable is faced with one of his members of the force saying, "So and so is seeing his lawyer in the Temple on Tuesday. I think we will find that essential matters will be discussed during that conference"--and all those matters that I have mentioned would be essential matters--how could any chief constable say that that did not fall within the terms of the clause as being of substantial value in the detection of serious crime?

In those circumstances I would say a word about the constitutional position. When the noble Lord, Lord Hacking, says that the legal profession should be singled out, I can entirely part company with him because the legal position of privilege is entirely different from the privilege covering so many other positions between the citizen and, say, the priest or whoever else. It is a constitutional position. Without a written constitution, all that stands between the all powerful state on the one hand and the liberty of the individual on the other is an independent judiciary and an independent Bar, or, as it

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now will be, an independent group of advocates, ready to uphold the common law without fear or favour. The advocate is part of this constitutional complex. What many laymen do not appreciate is that a lawyer has an overriding duty to the court which is over and above his duty to his client. By that we mean that he has an overriding duty to the proper administration of justice.

It is not sycophancy which causes the advocate to call the judge "my Lord". It is not fear that causes the advocate to treat the judge with good manners and with respect, whatever the shortcomings of the judge's personal behaviour may be. The reason for this is that the judge represents the law and justice in the court. Legal privilege is the citizen's guarantee that he can, when he goes to see his lawyer, speak the whole truth to his adviser in perfect confidence and so receive advice which is honest and untrammelled in return. To allow state intrusion into this process, exercised in secrecy at the behest of one organ of the state--the police--for the benefit of the state, is to undermine a cornerstone of our democratic constitution.

The commissioner's position is nothing to the point because, as has arisen in the previous debate, if the whole process is secret and unknown, there cannot be a complaint to the commissioner and therefore the commissioner has no position. If it is not secret, and it is discovered and a complaint is made, then it is difficult to see, if the chief constable acts in good faith within Clause 91--if he honestly thinks that the intrusion is likely to be of substantial value--how the commissioner can possibly say that the chief constable's conduct has been in any way unlawful or improper.

Lord Browne-Wilkinson: My Lords, we may be at cross-purposes. If the government amendments requiring all authorisations to be submitted to the commissioner for consideration and review are passed, the point about secrecy is gone. The commissioner will be looking at each authorisation whether or not the person bugged complains or knows about it. The government amendment is a major shift which requires investigation of each authorisation.

Lord Hutchinson of Lullington: My Lords, I am most grateful to the noble and learned Lord because I had not myself gone into the exact effect of this afternoon's vote on this clause. However, my second point remains valid as to the approach the commissioner can take if the police officer has acted within the words of the statute.

Surely the overwhelming issue concerns the passing of a law that says that it is not illegal to bug a lawyer's chambers. That to me, as a lawyer, is so extraordinary, remarkable and unbelievable that I could not believe it when I saw it on the face of the Bill. To me the important matter here is that if there is such a law on the statute book it not only deprives the citizen of his privilege but it goes to the very basis of our constitution.

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