Fighting the insidious 'Snoopers' Charter'
In its current form, the Investigatory Powers Bill will mark the death knell of legal professional privilege, write Joseph Morgan and Molly Cox
The disclosure of policy documents from MI5, MI6, and GCHQ has revealed the terrifying extent to which the government has been hoovering up legally privileged material for over a decade. However, instead of applying the brakes, the Investigatory Powers Bill, otherwise dubbed the 'Snoopers' Charter', seeks to entrench these practices into a new statutory framework that risks a fundamental tenet of the rule of law - legal professional privilege (LPP). The threat posed by the Investigatory Powers Bill (IP Bill) in its current form must be fiercely resisted.
LPP ensures that communications between lawyer and client remain confidential. To guard against abuse, legal privilege does not apply to lawyer-client communications made for the purpose of committing a crime or fraud (known as the 'iniquity exception').
Privilege is of paramount importance to our justice system. Without it we risk a chilling effect on justice: a client who fears state snooping may withhold vital information from his lawyer, potentially frustrating a just outcome. Furthermore, in legal challenges against the government there is always a risk that privileged information held by the state will result in government agencies gaining an unfair advantage in litigation.
The protection of privileged material was guaranteed in every statute granting the state powers of surveillance until the Regulation and Investigatory Powers Act 2000 (RIPA), which had no reference to LPP. Initially assumed to be an oversight, the House of Lords ruled instead this must be interpreted as enabling the security services to listen into privileged communications in 'exceptional circumstances'.
This set in motion the undermining of LPP, which has had a qualified status ever since. Clamours from the legal profession to re-assert privilege have fallen on deaf ears. The reason why might now be clear, following a string of revelations on the scale of the government's bulk data collection practices.
The first confession came in the Belhadj case, in which lawyers argued that the state had spied on confidential legal communications. In response, the government made the startling admission that its regime for handling the communications between lawyers and clients was unlawful.
In March 2015 the next fragment of information was revealed by the Intelligence and Security Committee, which found the government had been collecting 'hundreds to millions of records' in the form of bulk personal datasets (BPDs). BPDs are vaguely defined by the government as 'large databases containing personal information about a wide range of people'. Databases that appear to fit the description include Oyster card data, the NHS prescription database, and the electoral roll. Over a year later we learnt these datasets contain legally privileged communications.
Then, last November, it was revealed by Theresa May, the then home secretary, that the government had been bulk collecting 'communications data' from telecoms companies since 2001. In other words, the 'who', 'what', 'where', and 'when', rather than the content, of communications. As explained by the Bar Council and the Law Society, legal privilege may apply to communications data, which can reveal 'not only the existence of the lawyer-client relationship but also the substance of the advice sought and given (for example, the identity of an expert witness who has been cc-ed into an email)'.
In the latest piece of the puzzle, as part of Privacy International's legal challenge this year against UK intelligence agencies, a series of internal policies were disclosed. These policies confirmed not only that the BPDs collected by the agencies may contain LPP material, but that such material could be accessed by intelligence staff and shared outside the agencies.
The IP Bill will codify these practices and shape state surveillance for the next generation. Initially legal privilege was not even mentioned in the Bill and only dealt with in the accompanying codes of practice, however, lobbying by the profession has forced the government to make amendments, inserting a number of detailed provisions that regulate when LPP material can be accessed.
Despite recent progress, in its current form the Bill falls short of what is required to preserve LPP. It allows for privileged material to be targeted by the security services subject to a 'public interest' test, which is both broad and unnecessary in light of the iniquity exception. It allows for the continuation of bulk data collection practices in the form of 'bulk interception warrants', whereby vast amounts of privileged material will be amassed in databases.
The Bill requires an express provision that fully protects LPP material, in the same way it has been protected for hundreds of years. This can only be achieved by removing the power to target privileged communications altogether and excluding legally privileged material from bulk collection practices. The Law Society and Bar Council suggest that telecoms providers should not be forced to retain the communications data of legal professionals unless there is evidence that the iniquity exception applies.
As things stand, the IP Bill threatens the administration of justice for a future generation and undermines the balance of power between the citizen and state. The government would be up in arms if there was a risk we could read their legally privileged communications. The legal community must fight this insidious piece of legislation before it is too late.
Joseph Morgan and Molly Cox are paralegals in Bindmans' human rights and police actions departments @BindmansLLP