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Legal professional privilege and the investigatory powers bill

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Tim Hill provides an overview of the potential implications of the Investigatory Powers Bill on legal professional privilege 

The Investigatory Powers Bill is a substantial revision and modernisation of our current investigatory powers legislation: the Regulation of Investigatory Powers Act 2000 (RIPA).

RIPA has been badly in need of revision for some time. David Anderson QC, the independent reviewer of terrorist legislation, in his report on the review of investigatory powers, pointed out that:

‘RIPA, obscure since its inception, has been patched up so many times as to make it incomprehensible to all but a tiny band of initiates. A multitude of alternative powers, some of them without statutory safeguards, confuse the picture further. This state of affairs is undemocratic, unnecessary and – in the long run – intolerable.’

RIPA allows the security and intelligence services and the police to intercept legally privileged communications, where it is necessary:

  • in the interests of national security
  • for the purpose of preventing or detecting serious crime
  • for the purpose of safeguarding the economic wellbeing of the UK.

LPP and RIPA

RIPA is actually silent on legal professional privilege (LPP), though there is guidance in codes of practice, but the House of Lords in the case of McE and Prison Service of Northern Ireland in 2009 decided that properly authorised surveillance under RIPA involving legally privileged material was lawful.

Because of the way the act was drafted, they reluctantly held that it must have been parliament’s intention that privileged material could be targeted. However, they noted that the occasions on which this happened must be ‘wholly exceptional’ if the chilling factor that LPP was intended to prevent – namely the fear that confidential legal advice was being listened into - was not to arise.

LPP and the draft Investigatory Powers Bill

When the draft Investigatory Powers Bill was introduced for pre-legislative scrutiny in November 2015, it too was silent on the matter of LPP. The Law Society’s evidence to the joint committee looking at the bill emphasised the importance of LPP and argued for protection of privileged communications on the face of the bill.

The joint committee accepted that there should be such protection and called on the government to work with the Law Society and others to ensure its adequacy.

In the event, when the bill itself was introduced to Parliament on 1 March it contained a provision on its face that LPP material could only be targeted for interception in exceptional and compelling circumstances. On the one hand, we welcomed the attempt to protect legal privilege on the face of the bill; on the other, the fact that parliament would be invited to pass legislation that would explicitly allow privileged material to be targeted was deeply disappointing and worrying. In this sense, the Investigatory Powers bill goes further than RIPA by making explicit inroads into LPP.

The Law Society’s position

In our evidence to the Commons Public Bill Committee we argued strongly that privileged communications between a lawyer and their client – and not, of course, communications in which privilege does not arise because they further a criminal purpose – should never be targeted.

This position is in line with the position of the Joint Committee on Human Rights (JCHR). The committee recommended in a recent report that the power to target confidential communications between lawyers and clients be removed from the bill because it was unnecessary in light of the iniquity exception.

Alongside the Bar Council, we have been arguing that a number of other gaps in protection for legally privileged material need to be plugged.

Protection is needed:

  • where LPP material is not targeted but is nevertheless acquired as a by-product of an interception
  • for communications between clients outside the UK and lawyers in the UK
  • where warrants are modified and LPP material is likely to be captured
  • for legally privileged communications data (i.e data about the who, where, when etc of a communication).

We have also been arguing that records should be kept of the occasions on which judicial commissioners decide that material is not privileged.
The bill received its second reading in the House of Lords on 27 June. Lord Pannick QC tabled amendments to the bill on behalf of the Law Society, the Bar Council, justice and liberty to prevent the authorities from listening in to privileged discussions unless there is reason to believe that the iniquity exception applies.

Looking ahead

The bill has been in committee since mid-July. Lords from across the political spectrum have called for stronger protection of LPP and spoken in favour of our proposed amendments. We will not know until Report Stage in the autumn whether or not the House accepts our arguments. We hope the government, too, will be sympathetic and will draw on the ideas we have put forward in formulating its own amendments to protect the fundamental right of a client to speak to a lawyer in confidence. It can only strengthen this important legislation if they do so.

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