Draft surveillance bill lacks protection for legal privilege - joint committee report

Government plans to boost surveillance powers have been knocked back by an all-party joint committee of MPs and Peers yesterday over fears that they would allow too much state surveillance of conversations between clients and their lawyers.

The joint committee said that provisions to prevent the state from intercepting legally privileged communications should be included on the face of the Draft Investigatory Powers Bill, rather than, as the Home Office had suggested, in codes of practice which do not have the same legal force.

Those who break codes of practice are not liable to civil or criminal proceedings. The Joint Committee also pointed out that codes of practice cannot be amended, so they are not subject to the same level of parliamentary scrutiny as the Bill itself.

Peter Carter QC, who gave evidence to the Joint Committee on behalf of the Bar Council said:

“The Joint Committee is absolutely right to recommend that protections for legal privilege must be included in the text of the Bill. Codes of practice have enabled the state to disregard the well-recognised right to legal privilege on too many occasions. The security services have been forced to acknowledge breaches of legal privilege in a number of embarrassing legal hearings despite their efforts to prevent disclosure of what has amounted to a disregard of our citizens’ rights; rights which the state itself invokes on its own behalf.

“Nobody should listen in to privileged communications between clients and their lawyers, least of all the state. Legal privilege provides the basis for a fair trial. That is why it has endured as a fundamental constitutional right for hundreds of years.

“When clients believe that communications with their lawyers are subject to surveillance, they often hold back from telling them the whole truth. It is then not possible properly to advise a client, and that limits the extent to which they, and other parties to the proceedings, can receive a fair trial.

“The only situation in which private communications between lawyer and client should be capable of being spied on is when they are made in furtherance of a criminal purpose; this is known as the iniquity exception.

“Lawyer client communications should of course be subject to surveillance where they are being used inappropriately, and where intercepting them will give the security services vital information to keep us safe from harm.

“We are delighted that the Joint Committee has agreed with the Bar Council in calling for a rigorous scheme of law by which any such surveillance is regulated, including proper judicial oversight.

“We look forward to working with the Home Office and others to incorporate the committee’s recommendations in to the text of the Bill and to ensure that any new surveillance laws protect both our security and our fundamental rights and values.”