Both The Law Society and The Bar Council have called for legal professional privilege (LPP) to receive statutory protection in the forthcoming Investigatory Powers Bill.
The draft law, 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 the content of communications or communications data. While this has sparked debate about privacy, critics also say for lawyers, professional privilege is under threat.
This is because, unlike similar legislation such as the Police and Criminal Evidence Act 1984 and the Terrorism Act 2000, LPP will not be included in primary legislation. Instead, the proposal is that the rules will appear in separate codes of practice to be published next year.
Speaking to Legal Business, Peter Carter QC of Doughty Street Chambers, who chairs The Bar Council’s surveillance and privacy working group, said the wording of the draft could deliberately undermine LPP in future cases.
‘Our principal concern is the absence of specific statutory protection of material which is covered by LPP. The best indication we have is that it will be covered in the codes of practice, which is quite frankly unsatisfactory and is no justification at all.
‘What is even more worrying is that, under section 65 of the draft bill, it says conduct is lawful for all purposes if it is conduct that is authorised under this Act, the Regulation of Investigatory Powers Act 2000 (RIPA), part 3 of the Police Act 1997 and section 5 of the Intelligence Services Act 1994. This is identical wording to that in section 27 of RIPA, which gave rise to the decision in re McE  in which the House of Lords said that meant parliament was approving the interception and access of material covered by LPP. It has to be assumed that the Home Office has done this quite deliberately, knowing that will be the effect.’
Questions also remain over the extent of the judicial oversight for the ‘double-lock’ – the requirement for both judicial and senior ministerial authorisation for the most intrusive investigatory powers – as well as section 14, which empowers the secretary of state to issue a targeted inception warrant or a mutual assistance warrant without the approval of a judicial commissioner when the secretary of state ‘considers that there is an urgent need to issue the warrant’.
However, authorities can skip the double-lock by passing a test, which Carter QC said is ‘incredibly narrow’ – a judicial review test that will ask a judicial commissioner to consider whether the request is ‘in the realms of acceptable or reasonable conduct’ – meaning only if the request is wholly unreasonable can the judicial commissioner refuse.
The draft law will now undergo consultation and pre-legislative scrutiny and a revised version is expected to be introduced to Parliament in spring 2016.
Read the draft of the bill here.