It is not often that the Chairman of the Bar Council of England & Wales repeatedly uses the words ‘chilling effect’ to define the potential impact of new legislation. But that is how Andrew Langdon QC describes the new Investigatory Powers Act (the Act), which came into effect on 30th December 2016. For lawyers, the term ‘chilling effect’ has a special meaning: the prevention or discouragement of the legitimate exercise of legal and natural rights by the threat of legal sanction.
Popularly labelled as the Snoopers’ Charter, the Act has introduced new powers, and reaffirmed existing ones, for UK law enforcement and intelligence agencies to execute the targeted interception of communications, bulk collection of communications data, and bulk interception of communications.
‘The first thing to say is that the Act is welcome,’ says Langdon ‘in terms of providing a necessary lawful framework, because until that was created the courts had found effectively the security services had not been acting in accordance with the law – the position had become irregular.’
A criminal barrister and a Recorder since 2002, Langdon was Leader of the Western Circuit from 2013-15 before becoming Chairman of the Bar Council in January. He therefore knows a good deal about the potential damage to Legal Professional Privilege (LPP) for barristers and their clients that may arise as result of these increased powers.
A long established part of English common law, LPP belongs to the client, not the lawyer, protecting communications between them and preventing any disclosure being made without their consent. As a result, clients implicitly trust their lawyers. ‘LPP is a pretty robust protection within our jurisdiction,’ says Langdon ‘which is one reason why lawyers jealously guard it.’
Langdon suggests that ‘the world at large doesn’t have an instinctive understanding of what LPP is, or why it’s so important. A common misunderstanding is that it’s something which is just a factor in a range of other considerations. Of course, it’s something we (the Bar Council) have traditionally said and the courts have traditionally upheld: it’s not just a factor, it’s an overriding consideration.’
He explains in more detail why LPP really matters: ‘It is essential to have that relationship of trust between client and advisor – that there is full freedom to communicate with your advisor to ensure that he or she is told everything they need to know in order to represent you properly, and that they learn everything in order to give you robust and sensible advice. The courts operate on the basis that there has been free flowing communication, so that those who advocate and represent clients are not hindered to any extent in representing them fully and fairly.’
Having praised the Act for clarifying an ‘irregular’ position, Langdon is however critical of its shortcomings. ‘Our concerns are not fully addressed by the Act,’ he says ‘because LPP, which used to be sacrosanct, is now something to which significant weight is going to be given when the ultimate decision is made. We haven’t achieved what we think ought to have been achieved: the protection of LPP as it used to be protected.’
During the progress of the Bill through parliament, the Bar Council, together with Law Society and other parties, made strong representations concerning the draft legislation to try and remove or amend those sections which served to undermine LPP. ‘We wanted to have a framework that was compatible with our obligations,’ says Langdon. ‘The Bar’s position was: this was unnecessary because the way that it had always been understood that communications that were made with a criminal purpose would not be privileged provided the protection that was necessary.’
The net result, he adds, is that while Section 27 of the Act ‘provides a mechanism whereby there’s added value as a public interest consideration, that falls short of what The Bar Council sought. We are concerned as to the chilling effect in terms of being able to reassure a client that the discussion you’re having with them can’t be listened to.’
Langdon sees the deficiencies of the Act as going ‘well beyond just an invasion of privacy.’ He develops the point: ‘The ability for a client to speak with confidence in complete confidentiality, in itself has all sorts of ramifications – that’s why it has become a sacrosanct protection. Because everyone has understood that the consequences of the chilling effect aren’t just a matter of inconvenience, but you pay a price if you are not careful for not being able to allow confidential communications to take place in the course of a professional relationship in terms of trust in the system, and confidence in it.
‘Part of our concern is that the chilling effect means that sometimes it’s necessary to give proper, objective, and harsh advice – for example, in relation to whether or not the person you are representing should be pleading guilty. Having that type of frank discussion and expecting your client to volunteer truthfully what his position is, is much more difficult if you can’t reassure him that the conversation cannot be listened to.’
There is a further problem, he suggests: ‘Another aspect of the chilling consequence is lawyers feeling a little less inclined to advise what steps should be taken in preparation of the defence because of a concern that those listening might pre-empt some of those steps. It’s a two-way business: obviously a confidential discussion of that sort, and our anxiety relating to what the consequences, if we’re not careful, may be.’
Under the terms of the Act, there are limited exceptions to LPP. Any attempt to broaden them further ‘will meet with very stiff resistance,’ says Langdon, adding that he ‘would not be surprised’ if litigation were required ‘to provide greater clarity’ in relation to public interest in certain circumstances when interpreting the Act.
To address its practical application, codes of practice will be published. ‘The codes are key because they give all those operating within the system guidance as to how they should apply the Act,’ says Langdon. The draft codes have yet to be provided to the Bar Council to consider and examine.
A key provision of the Act covers the warranty powers given to UK law enforcement bodies and intelligence agencies: interception warrants; equipment interference warrants and bulk communications data acquisition warrants.
‘There is an opportunity for the codes to address some of our concerns to some extent,’ says Langdon, ‘supplementing how Section 27 will work in practice, and underlining, we hope, that it is a wholly exceptional circumstance where a warrant is being granted – and if it is, focusing very much on the necessity for doing so and doing the minimum necessary to achieve the objectives.’
Langdon therefore hopes that the codes will provide ‘some pretty robust guidance, which might ameliorate our concerns, and for what can actually be done with the material that has been obtained.’ There may be strong arguments for ring-fencing it, he argues: ‘to limit it in terms of those who can access it and to limit how it can be deployed or acted upon. In terms of the Act and the way it’s going to work in practice – the codes are terribly important. We await them with interest.’
By Dominic Carman