Legal Business Blogs

‘A dangerous sleight of hand’: Concerns changes to Snooper’s Charter still a risk to legal privilege

After a new draft was released yesterday (1 March), there are growing concerns from the legal profession that the Investigatory Powers Bill will still fail to protect legal privilege, encroaching on lawyers’ ability to speak confidentially with clients. Both the Law Society and the Bar Council are urging the government to take their time with the legislation.

The bill, dubbed the ‘snooper’s charter’, will govern all of the powers available to law enforcement, the security and intelligence agencies and the armed forces to acquire communications from the public through means such as accessing web browsing histories and phone hacking.

The bill’s previous draft sparked debate about privacy and critics were also concerned professional legal privilege was under threat. However Home Secretary Theresa May described the legislation as ‘vital’ with the revised bill release yesterday introducing several safeguards that had not been present in its previous draft form.

Despite the changes, the Bar Council is warning the policy will have ‘far-reaching implications for our fundamental rights’. It has also slammed the short timeframe allowed for the bill’s passage into law, with the government hoping pass the law by the end of this year.

Chairman of the Bar’s surveillance and privacy working group Peter Carter QC said the bill has failed to recognise the importance of legal privilege and the interests of balance with regards to justice and security.

Carter said the government has ignored the Bar Council’s recommendation that protections for legal privilege should appear on the face of the bill and meet the standards required by common law and Convention case law.

‘As a response to a parliamentary committee, this is not even lip service; it is a dangerous sleight of hand.’

He added: ‘Unfortunately, this bill ignores the clear distinction between privileged and non-privileged communications and instead gives authorities powers to spy on sensitive, highly confidential communications that have nothing to do with criminality, national security or threats to individuals.

The Law Society said while the government addressed its concern that the bill must recognise the acknowledgement of legal professional privilege in statute rather than simply in codes of practice, it was concerned the protection failed to go far enough.

Bird & Bird IT and intellectual property partner Graham Smith said the bill contains very abstract definitions that are difficult to understand and can cause problems when it comes to interpretation.

He added: ‘There is a very significant amount of material and it needs very careful consideration. Looking at what they’ve done in the bill as opposed to the draft bill, they’ve ironed out a lot of the wrinkles but there are a lot of major points of contention still there. In some areas they’ve even widened some of the powers so there’s a lot they still need to do there.’