Discussing surveillance is tricky and emotive. It is not comfortable to think of our private communications being monitored, nor that we lose control over how they are used or interpreted. However, we recognise that intelligence services are often effective in preventing some crimes, and covertly monitoring suspects is part and parcel of their work in ensuring public safety.
The UK Government however doesn’t have a terrific track record in legislating on surveillance issues. With the difficulties of keeping up with the development of technology, past legislation has been perceived as reactive and patchy. The last Act of Parliament on the subject, the Data Retention and Investigative Powers Act 2014 (DRIPA), was agreed behind closed doors by the three main political party leaders after the European Court of Justice ruled that a European Directive allowing security services access to individuals’ telephone and internet records was invalid.
Draft Investigatory Powers Bill
CILEx was very concerned about the manner in which DRIPA came into being – it was not good law-making. However the Draft Investigatory Powers Bill currently under consideration is being debated much more openly and democratically.
The Bill intends to consolidate the complex area of law surrounding the use of investigatory and surveillance powers, and is the first Bill governing the intelligence Agencies to this extent in over 15 years. This is much needed, as a simplified and consistent framework for the use of these powers is necessary to balance the needs for privacy and civil liberties with the need for protection and public safety. It is important that this is discussed out in the open, as the rules under which the State can use these powers must be transparent, without which the public will not have confidence in those who create them, or the agencies that use them.
However an open debate has led to a complex and wide-ranging Bill having, quite understandably, a difficult birth.
Three Parliamentary Committees have each, in their own way, raised serious issues with the Draft Bill, and have all called for significant changes. The Science and Technology Committee said there were still many unanswered questions, the Intelligence and Security Committee said the Government had failed to offer reassurance, and the Joint Committee on the Draft Bill made 86 individual recommendations for changes.
Legal Professional Privilege
Among the list of issues that need addressing is that of confidentiality when a person communicates with their lawyer, so called ‘legal professional privilege’ (LPP).
It is important to remember that LPP is not a protection for lawyers, but for the public. It is their right to communicate with a lawyer in confidence, and not have those communications intercepted. It is not a privilege, but a duty imposed upon lawyers; to keep their communications with their clients confidential. This is essential for the proper administration of justice, with the public holding a fundamental understanding that their communications with their lawyer are confidential.
Instruments of the State and the legal profession have joint responsibility to uphold this public trust. If this is undermined, it could jeopardise the nature and content of these communications, which will impede a lawyer’s ability to properly advise their clients based on all the information.
Unfortunately LPP does not have robust statutory protection currently. The Regulation of Investigatory Powers Act (RIPA) 2000 allowed the police and the security services to request call data from telephone companies without a judge’s approval, and in 2009, the House of Lords ruled, in McE v Prison Service of Northern Ireland and another  UKHL 15, that there was no exemption for lawyers. Meaning that RIPA could be used to obtain legally privileged communications. After that ruling, a series of codes were developed by the Government designed to address the issue of legally privileged information, however these codes are widely regarded as being ineffective.
In the run up to the publication of the Draft Investigatory Powers Bill, three separate reports reviewed the topic of surveillance powers, all considering the subject of LPP.
- Parliament’s Intelligence and Security Committee reported that the communications of lawyers needed heightened, possibly statutory, protection.
- David Anderson QC’s report identified that if the State could monitor privileged communications, there would be no fairness in litigation where the State was a party. As such, LPP was deserving of particular protection.
- The Royal United Services Institute similarly highlighted that those who challenged the State report observed that “privacy is also a pre-requisite for democracy … Those who challenge the state – through journalism or legal advocacy, for example – need to be confident they are not spied upon, otherwise they cannot do their jobs effectively, and such jobs are an acknowledged part of a functioning democracy”.
Our concern, shared by many, is that the Draft Investigatory Powers Bill may potentially miss the opportunity to protect the confidentiality of communications which should be subject to LPP, as the proposed mechanisms would be contained within more codes of practice. We think it will not be sufficient to rely on a code for this protection to be maintained in the long term, as it will have less legal force and be more easily amended. The confidentiality of communications between a client and their lawyer are just too important to be left to easily edited codes, and should be protected on the face of the Bill
The scope of LPP
CILEx particularly shares these concerns because Chartered Legal Executives in most circumstances will fall under the burden of LPP, in the same way as a barrister or solicitor. This was addressed in the case of the UK Supreme Court in R (on the application of Prudential Plc and another (Appellants)) v Special Commissioner of Income Tax and another (Respondents)  UKSC 1. The case centred on whether Legal Advice Privilege should be extended so as to apply to legal advice given by someone other than a member of the legal profession (in this case to accountants advising on tax law).
President of the UK Supreme Court, Lord Neuberger, stated in his judgment that;
“…it is universally believed that LAP only applies to communications in connection with advice given by members of the legal profession, which, in modern English and Welsh terms, includes members of the Bar, the Law Society, and the Chartered Institute of Legal Executives (CILEx) (and, by extension, foreign lawyers). That is plain from a number of sources, which speak with a consistent voice.”
LPP is of course a single integral privilege, whose sub-heads are legal advice privilege and litigation privilege, but the same burden applies. It is important that any laws impacting on the legal profession or justice system recognise the complete range of lawyers providing services to the public to ensure the law is fit for purpose and does not require subsequent time-consuming revisions.
Government can be reassured of course, for LPP is not an absolute right. It does not apply where there is reasonable suspicion that the communication is in furtherance of a criminal purpose, known as the ‘iniquity exception’, as ruled upon in Longmore LJ in Kuwait Airways Corpn v Iraqi Airways Co (No 6) .
This became topic of debate when the Home Secretary appeared before the Joint Committee on the Draft Investigatory Powers Bill in January 2016. She spoke forthrightly of the importance for investigative powers to be available for law enforcement and intelligence agencies where it is necessary and proportionate for them to do so, and that it would not be right to say these powers could never be applied in circumstances involving legal professionals. She said:
“I think we are not actively interfering with legal privilege, but I’m sure everybody would accept that you could not accept a situation where you said that nobody who had any legal qualifications and might be operating in a legal relationship relating to those legal qualifications with an individual, that these powers could never be used in those circumstances. Because sad to say you may very well find that there are circumstances in which people who are legally qualified are potentially providing support to some people who would perhaps be involved in, for example, criminal activity.”
When put to her by Lord Hart that privilege cannot be called upon as a defence by a ‘naughty lawyer,’ she responded; “Sometimes it may be necessary to use these powers to identify if you are a naughty lawyer in the first place.”
The committee ultimately recommended that LPP should receive explicit protection on the face of the Bill, as CILEx, the Law Society, the Faculty of Advocates and the Bar Council recommended. At the time of writing we await the response from the Home Office, but the dividing line is clear; on the one hand those who say you should not use these powers without reasonable suspicion of iniquitous activity, and those who say it is through the use of these powers that we can identify those behaving with iniquity. We eagerly await the response from the Home Office.
David Edwards, President, Chartered Institute of Legal Executives (CILEx)
I am very grateful to Richard Doughty for all his work in preparation of this article.