Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010

My Lords, I share the concerns expressed by all three previous speakers. As is the noble and learned Lord, Lord Lloyd of Berwick, I am particularly concerned about the delays that have occurred in dealing with legally privileged material. The position is clear. The McE judgment was delivered by the Appellate Committee of your Lordships' House on 11 March 2009. The Senior Law Lord, now president of the Supreme Court, the noble and learned Lord, Lord Phillips of Worth Matravers, noted that the Secretary of State had not appealed from the judgment of the Divisional Courts, which was dated as long ago as 30 November 2007. It found that the Secretary of State had been acting unlawfully because surveillance on legally privileged material should be classified as intrusive surveillance with strict controls. The noble and learned Lord, Lord Phillips, pointed out that it was highly unsatisfactory that the Secretary of State had taken no steps at all to comply with the judgment of the Divisional Court, even though she had decided not to appeal against it. The noble and learned Lords, Lord Carswell and Lord Neuberger of Abbotsbury, also criticised the fact that the Secretary of State had not complied with the judgment, which she did not challenge, and that after more than a year she was not even in a position to produce a draft regulation embodying the changes necessary to ensure legality in this area. It has now taken another year for the relevant order to be brought before the House. Will the Minister please explain why it has taken so long to rectify the illegality identified by the Divisional Court in November 2007, which was accepted by the Secretary of State to be illegal at the end of 2007? How can the Government justify acting for another two-and-a-quarter years, until now, under a regime which was found to be unlawful and which the Government accepted to be unlawful? The Government’s approach to this matter suggests that they may not recognise the vital need for proper legal controls of the activities of the relevant agencies in this highly sensitive area. Will the Minister reassure the House that nothing in the orders dealing with legally-privileged material purports to affect whether it would be a breach of legal professional privilege, and therefore unlawful, for the state to rely on this legal consultation material in court? In McE, the noble and learned Lord, Lord Carswell, said that the inviolability of the rule against the admission in evidence in court of privileged communications remains—save, of course, where the material exists in furtherance of crime or fraud. Will the Minister reassure the House in relation to that matter?