A question of privilege

You can’t have failed to have missed it, but the long-awaited and much-revised reincarnation of the post-Snowden ‘Snooper’s Charter’, now formally known as the Investigatory Powers Bill, has finally been published.

In another busy week for the home secretary, Teresa May seems to have been working up to the deadline, making last-minute changes and pre-empting criticism ahead of the Bill’s publication.

Aside from the headline-grabbing obligations on internet providers to record and store the browsing histories of all users for a year, and questions around the encryption of data, it is the failure to adequately address professional legal privilege that has caught the attention of the Law Society.

Despite the evidence provided to the review committee over a year ago, protections for privilege seem to have been bypassed by the Bill. In its recent position paper, co-authored with the Bar Council, the Law Society called for explicit statutory protection for lawyer-client communications.

There is some good news, however. The Bill sees the introduction of what May refers to as the ‘double lock’, meaning that before a warrant requesting more detailed information (including specific web-pages) is issued by a minister, it must be first approved by a judge.

Such a judicial safeguard must not be abused. Already there has been some suggestion from campaign group Liberty that this could become a simple ‘rubber stamping’ exercise, with judicial veto being by-passed in urgent cases.

With scrutiny of the Bill set to continue until spring 2016, the Law Society has more work to do to ensure the profession’s voice is heard. It will be vying with many other interested parties, however. Civil liberties groups and, most likely, internet and telephone providers themselves are likely to be leading the challenge.

More pressing for the home secretary is a timely Freedom of Information Act request, presented on website ‘What Do They Know’, requesting the detail of, among other things, her personal email and browsing history for the past month. No doubt there will be plenty for the tabloid press to feed on in the coming weeks.

For reasons obvious from the above, somewhat hidden in the news was national pro bono week. While the legal aid debate continues to rage on, in and out of parliamentary politics, the annual celebration and promotion of lawyers working for free was as important and essential as ever, with some reassurance offered to the profession by the attorney general, Jeremy Wright QC.

There is an established history of the AG championing pro bono work on behalf of the profession. Speaking at the launch event, he bluntly addressed a ‘common misconception’ by stating that ‘pro bono is an adjunct to, not a substitute for legal aid funding’. I, like much of the profession, hope this is a belief shared with his cabinet ally, the Lord Chancellor.

Pro bono work remains an essential element of securing access to justice for individuals and businesses in need. It also provides invaluable experience for aspiring and junior lawyers and a learning mechanism for more senior and supervising solicitors. It is and should always be part of what we do. We should celebrate this and, whatever obstacles may be thrown in our path, continue to share our skills and services for no other reason than it being the right thing to do.

Kevin Poulter is SJ's editor at large and a legal director at Bircham Dyson Bell @kevinpoulter