Investigatory powers and client confidentiality - where the Bill has gone wrong
Members of Parliament will today have the opportunity to debate the Investigatory Powers Bill in the House for the first time. The Bar Council explains where the Bill has gone wrong and looks forward to working with members on all sides of the House at committee stage to put in place proper protections for the right of citizens to consult with their lawyer in confidence.
Chantal-Aimée Doerries QC, Chairman of the Bar, said: “We will be following the second reading of the Investigatory Powers Bill very closely, particularly for debate on the surveillance of communications between lawyers and clients.
“This aspect of the Bill raises important issues about the rule of law. It is vital that the Bill is given proper parliamentary scrutiny to ensure that it does not give rise to unforeseen and unintended consequences. These could undermine efforts to safeguard our national security and threaten the rights and freedoms of individuals which we cherish.”
Peter Carter QC, Chairman of the Bar Council Surveillance and Privacy Working Group, said:
“The Government claims that the Bill contains ‘protection for lawyers’. We do not seek protection for lawyers; we seek the preservation of protection from government intrusion for clients, human and corporate. Disappointingly the Bill instead creates a legislative framework that places surveillance of legally privileged communications entirely within the law which undermines the fundamental constitutional rights of the client.
“As drafted, the Investigatory Powers Bill ignores the clear distinction between privileged and non-privileged communications and gives authorities the power to intercept sensitive, highly confidential communications that have nothing to do with criminality, national security or threats to individuals.
“The police and intelligence services need powers and authority to keep us safe, and it is right that Parliament should legislate to produce a clear and robust legal framework within which those powers may be exercised, but such efforts will be undermined if the law fails to recognise the citizen’s fundamental right to consult with a legal representative in confidence.
“The Bar Council looks forward to working constructively with MPs from all sides of the House at the committee stage to amend the Bill in a way which allows the security and intelligence services access to the information they need and protects the rights of the client.”
Legal Professional Privilege
Legal privilege is in fact the privilege of the client. It is not special pleading on the part of lawyers. If confidential lawyer-client communications find their way to the opposing party, particularly where, such as in criminal proceedings, that party is a branch of the state, there is an obvious risk of a miscarriage of justice.
The fact that a person suspects that communications with his or her legal adviser may find their way to the opposing party, or may be subject to surveillance by intelligence agencies, means that they may then be inclined to tell only part of the truth. This has a “chilling effect” on free and frank lawyer-client communication. Thus the protection of legal privilege is a cornerstone of the rule of law.
Where a client is communicating information to their lawyer which relates to an ongoing criminal purpose, such as an imminent and serious threat to life, of serious injury, or to national security, those communications are not privileged and intelligence agencies should be authorised to intercept and use the information they contain.
There will also be times when intelligence agencies need to intercept communications to determine if they are privileged, and the Bar Council will support amendments that allow such a process, based on compelling evidence, to take place.
