Draft surveillance codes prompt call for statutory protection of privilege

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25 March 2015


Computer data: anti-terror plans clash with LPP rights

Safeguards proposed by the government to protect legal professional privilege (LPP) from sweeping state surveillance powers are inadequate and lawyers’ communications should be explicitly protected by legislation, the Law Society has urged.

Responding to a Home Office consultation on two draft codes of practice pursuant to section 71 of the Regulation of Investigatory Powers Act 2000 – which ended last week – Chancery Lane complained that the proposed codes provided little improvement on what it characterised as the “officials making aware and ministers taking care” approach of the current codes. It argued legislative protection for LPP should replace them.

The two draft codes, covering Equipment interference and Interception of communications, both have sections devoted to LPP. They acknowledge that surveillance likely to result in the interception of, or interference with equipment – such as computers – deliberately targeting or accidentally harvesting, legally privileged information is “particularly sensitive”.

For this reason, extra safeguards are proposed in the draft codes. They include reports by officials as to LPP content to the Secretary of State and the Interception of Communications Commissioner. But similar safeguards exist in the current codes of practice.

The society said that in relation to LPP, “it is not clear that the draft codes add anything substantial” to the existing approach. It highlighted a recent report by Parliament’s intelligence and security committee (ISC), Privacy and Security: A modern and transparent legal framework, which urged the government to “use this consultation period as an opportunity to strengthen the safeguards for privileged information further”.

The society argued that LPP is “a bedrock” and a “non-negotiable part of our justice system”. Further, the “chilling effect” of potential surveillance of lawyer-client communications “is corrosive of the entire legal process”.

It went on to outline LPP’s “key place in protecting the rule of law”, supporting rights in article 6 (right to a free trial) and article 8 (right to respect for private and family life) guaranteed by the European Convention on Human Rights.

The society backed a call by the ISC for a new Intelligence Services Bill that would consolidate existing legislation on intrusion by intelligence agencies and argued that this and other surveillance powers should have statutory protection for LPP “embedded in revised legislation”.

It added: “It may also be necessary to introduce technical safeguards – for example, ‘bin’ lists that automatically exclude certain communications, including legally privileged communications – from mass surveillance.”

Law Society president Andrew Caplen said Chancery Lane had long argued “for statutory guarantees recognising the importance of client-lawyer confidentiality”.

He went on: “Now even [the ISC] has called for reform and we agree. [LPP] is a fundamental common law right that underpins basic human rights including the right to a fair trial. The next government should move quickly to protect it.”

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