Lawyers team up with journalists over RIPA proposals

The Law Society and the Bar Council have formed a coalition with the British Association of Social Workers (BASW) and the National Union of Journalists (NUJ) to question government proposals for police surveillance powers.

The diverse group of bodies have come together to create the Professionals for Information Privacy Coalition to express a shared concern to the current proposals contained in the draft code of practice for Regulation of Investigatory Powers Act (RIPA).

RIPA has been used to access journalists' communications without a warrant, such as The Sun's political editor, Tom Newton-Dunn, who had his phone records accessed by police in relation to the recent 'Plebgate' investigation.

A joint statement issued by the alliance said that privacy and trust are crucially important its respective professions and that it needs to be assured certain data will always remain confidential in all but 'exceptional and extreme circumstances'.

'Insufficient regard for professional confidentiality undermines the public's trust in our individual members, organisations and our public institutions. We are united in our belief that the current system needs to be changed. We have seen a growing number of instances where data and surveillance powers have been seriously and repeatedly overused. This has included police using secret methods to expose journalistic sources and to monitor journalists' activities and it has also been revealed that the intelligence agencies have been spying on conversations between lawyers and their clients,' said the statement.

The Guardian newspaper has also reported that emails from journalists at some of the world's largest media institutions, such as the BBC, Reuters, the New York Times and the Washington Post were saved by GCHQ and shared on the agency's intranet.

'Rushed legislation'

The coalition says that existing data and surveillance rules are complex and confusing as a result of badly drafted pieces of legislation. This has led to 'too many laws [being] rushed through parliament' with the most recent being the Data Retention and Investigatory Powers Act 2014 (DRIPA).

That controversial piece of legislation, brought in the wake of a decision of the European Court of Justice in April 2014, requires internet and phone companies to store the communications data generated by phone calls, email, texts and internet use for 12 months and make it accessible to police and security services.

The bodies believe that such rushed laws undermine parliamentary scrutiny and democratic debate.

'We have come together to call for the existing problems to be addressed in the various reviews still underway. Our organisations agree that access to professional data should be protected in law and should be subject to independent, judicial oversight. Using codes of practice - such as the draft code under RIPA - undermines the rule of law.'

Chairman of the Bar Council, Alistair MacDonald QC, said: "As a caring society, we cannot simply leave surveillance issues to senior officers of the police and the security services acting purportedly under mere codes of practice. What is surely needed more than ever before is a rigorous statutory framework under which surveillance is authorised and conducted.

"Communications between lawyers and their clients should remain confidential. If the state eavesdrops on privileged communications to gather intelligence, clients will feel unable to speak openly with their lawyers. In many cases, the effect will be that such cases cannot properly be put and a just result will not be achieved."

Andrew Caplen, president of the Law Society, added: "Legal advice oils the wheels of commerce and helps to protect the innocent in complex rule-based societies. The rule of law and the administration of justice are undermined if individuals cannot place absolute trust in their legal advisers."

The NUJ's general secretary, Michelle Stanistreet, also commented: "This coalition clearly demonstrates the strength of feeling amongst media and legal professionals and our overwhelming determination to see this law changed.

"It is clear that there has been sustained and deliberate surveillance of journalists, compromising confidential sources in unprecedented levels. The proposals contained in the existing RIPA code of practice simply do not offer the protection to journalists and to sources, and are in fact dangerously inadequate."

She continued: "New legislation is urgently needed - it is vital that judicial oversight is introduced to force police officers and other snoopers to apply to judges in a transparent process before surveillance powers against media and legal professionals can be considered. We hope the government will now listen to the wide breadth of professional opinion calling for reform of this dangerous law."

'Fresh legislation'

Speaking exclusively to SJ, Dominic Grieve QC said that due to changes in technology he was "perfectly persuaded that the current RIPA structure is inadequate for reflecting what the current technology is really about" and that he supported fresh legislation.

"I also take the view that unless this legislation looks at the reality of modern communications then we run the serious risk of ending up with the situation in which there will be large forms of communication which cannot, if necessary, be accessed in order to prevent serious crime and terrorism," commented Grieve.

When asked whether he was concerned that the UK's intelligence services had been routinely intercepting legally privileged communications between lawyers and their clients, Grieve added: "I think any individual examples of things that should not normally happen are clearly matters that should give people pause for thought, and also to look at why it happened and what should be done. You need really to look at what [were] the commissions - what was said. I would be a bit wary about extrapolating from that there is some systemic problem in the way the agencies are going about their work."

John van der Luit-Drummond is legal reporter for Solicitors Journal