Bar Council warns over “double lock” safeguards in Draft Investigatory Powers Bill
Responding to todays publications of the Draft Investigatory Powers Bill, Alistair MacDonald QC, Chairman of the Bar, said:
The "double lock" requirement of needing both judicial and senior ministerial authorisation for the most intrusive investigatory powers is not as secure as it is made out to be. Government ministers will be able to authorise the interception of people’s conversations and messages in “urgent cases” - defined as up to five days without authorisation – where judicial approval is not possible. It is likely that a high volume of requests to snoop on people's conversations will have an element of urgency about them. Excluding judicial authorisation under any circumstance immediately removes the element of independent oversight. As all lawyers know, there is a duty judge available through the Royal Courts of Justice 24 hours a day. There is no reason why such provision could not be made available in cases where investigatory powers are being sought.
Existing surveillance laws, and this week’s draft Bill, do not do enough to protect the most confidential of communications, namely those between a client and their lawyer. This is because measures to protect legal privilege (LPP) will not be placed in primary legislation. Instead, the proposal is that they will appear in separate codes of practice to be published next year. It has been recognised for centuries that this privilege, which is that of the client and not the lawyer, is a cornerstone of the ability to have a fair trial.
If the client, in sensitive cases knows or suspects that his or her conversations with their lawyer are being overheard by agents of the state, they simply will not be able to be frank with their legal advisors and miscarriages of justice may occur. We know from experience that these codes are little more than guidelines, and we need more than that to protect the important right to consult a lawyer in private. In the absence of any effective measures to make unlawful the targeting of communications between client and lawyer by public authorities, there is no meaningful protection for LPP.
Once the security services or other state agencies have access to sensitive material, what they do with it needs to be subject to legal scrutiny. Past experience indicates that such information may be shared with states who pay scant regard to the rule of law and may use that information in ways, which deny the rights these powers purport to protect.
