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Legal privilege is under threat by new UK surveillance legislation

Many prosecutions have been 'wrecked' by public authorities eavesdropping on private conversations, say The Law Society and The Bar Council

22 October 2015

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By Manju Manglani, Editor (@ManjuManglani)

Legal professional privilege should receive statutory protection in the UK's forthcoming Investigatory Powers Bill.

That's the view of The Law Society of England & Wales and The Bar Council, which have today issued a position paper on the impact of government surveillance on lawyer-client confidentiality.

They believe a balance must be struck between privacy and security in the use of investigatory powers.

"Intelligence agencies must not be allowed to spy on communications between clients and their lawyers," said Alistair MacDonald QC, chair of The Bar Council.

"We have seen too many examples of prosecutions wrecked because it was found that a public authority had eavesdropped on a conversation that should have remained private."

He continued: "No argument at all has been made as to why privilege should be revoked and we must make sure that legislators do not sleep-walk into approving a bill that would corrupt the administration of justice."

Protecting metadata as legally-privileged information

The current legal framework for the exercise of investigatory powers is "not fit for purpose", The Law Society and Bar Council have said.

"Documents released before the Investigatory Powers Tribunal earlier this year illustrated the inadequacy of the existing legislation," commented Jonathan Smithers, president of the Law Society.

The legal professional bodies have said the new law should expressly protect legal professional privilege from public authorities seeking to use investigatory powers, including the acquisition of metadata.

In late September, a Law Society panel warned that legal privilege is being put at risk by unregulated access to metadata.

Metadata provides contextual information on each person's activities, including who they spoke to, when they spoke and what they did next. It enables public authorities to obtain valuable insights into lawyer-client communications.

"Bulk interception of communications or retention of communications data is questionable in a democratic society, but if such powers are approved by parliament, there should be special provisions to protect privileged communications between lawyers and their clients," The Law Society and Bar Council said in a statement today.

"Protecting legally-privileged communications would not pose any risk to legitimate investigations because legal professional privilege does not apply where the lawyer-client relationship is being abused for a criminal purpose," they said.

They would like the new law to include a system of prior judicial authorisation for all covert information-gathering by public authorities.




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