Government must not sleepwalk into approving Investigatory Powers Bill

The UK's intelligence agencies must not be allowed to spy on communications between clients and their lawyers, the government has been warned.

The Bar Council and the Law Society have called for legal professional privilege to receive statutory protection when parliament debates a major new piece of surveillance legislation, the forthcoming Investigatory Powers Bill.

Lawyers consider the current legal framework for the exercise of investigatory powers not fit for purpose and the new law should expressly protect professional privilege from the activities of public authorities seeking to use investigatory powers.

President of the Law Society Jonathan Smithers said: 'The absence of explicit protection for legal professional privilege in earlier surveillance legislation has been of long-standing concern. Documents released before the Investigatory Powers Tribunal earlier this year illustrated the inadequacy of the existing legislation.

'The government now has the opportunity to debate legislation that gives statutory protection to the client-lawyer relationships that a civilised society depends on, while including safeguards against abuse for criminal purposes.'

The professional bodies have issued a position paper on lawyer-client confidentiality in the context of the debate over the balance between privacy and security in the use of investigatory powers.

Within the paper is a proposal that the new law makes clear that deliberate targeting and use of legally privileged information is unlawful. In addition, there should be a system of prior judicial authorisation for all covert information gathering by a public authority

Alistair MacDonald QC, chairman of the Bar commented: 'Intelligence agencies must not be allowed to spy on communications between clients and their lawyers. When you are defending yourself against the state or find yourself in a dispute against a public authority, it would be grossly unfair for them to listen in on conversations with your lawyer.'

MacDonald explained the profession had seen 'too many examples of prosecutions wrecked' due to public authority eavesdropping on private conversations.

'This is not special pleading for lawyers; the privilege is that of the client,' he added. 'Legal professional privilege has existed for centuries to enable clients to have a fair trial. We will be studying the Draft Investigatory Powers Bill closely in the hope that it provides sufficient protection for privileged communications and the associated meta-data, which reveals information such as who sent it, when, where, and from which device.

'No argument at all has been made as to why privilege should be revoked and we must make sure that legislators do not sleepwalk into approving a bill that would corrupt the administration of justice.'

John van der Luit-Drummond is deputy editor for Solicitors Journal
john.vanderluit@solicitorsjournal.co.uk | @JvdLD