Practical Law

The Investigatory Powers Bill presently before Parliament is a major piece of draft legislation, which is intended to replace the complex Regulation of Investigatory Powers Act 2000 by both updating it and by consolidating, in a clear and transparent way, the law enabling all state-sponsored intrusive capabilities.

The Bill has sparked a multitude of concerns, not least concerning the extent to which the powers to be conferred by it can be used, for example, to listen in to privileged communications.

On behalf of the Law Society (and in tandem with a number of other professional bodies), I gave evidence to the House of Lords/House of Commons’ Joint Committee established to examine the draft Bill. I expressed the Law Society’s concerns about the fact that this legislation is unique in not addressing privilege on its face, meaning that privileged materials are not taken outside the scope of surveillance powers. In literally hundreds of other statutes, Parliament has protected privilege by addressing it on the face of the legislation, so that, for example, the SFO, the police and HMRC have no entitlement to compel the production of privileged information. This is not currently the case with RIPA (see the 2009 House of Lords decision in McE) and nor with the Investigatory Powers Bill as presently drafted.

It would appear that, in opposition to this view, the Home Office has argued inter alia that legal professional privilege is abused on too many occasions, and that there is a necessity to draw a (delicate) balance between the privacy of clients of lawyers and the ability of law enforcement and the security and intelligence agencies to investigate wrongdoers in a manner which is not unduly fettered.

The Joint Committee published its conclusions on 11 February 2016. From a privilege perspective, these are satisfying, because the Committee has rejected the Home Office’s overtures.

In particular, the Committee expressed its concerns that “there are no substantive provisions addressing LPP…on the face of the Bill and considers that this may call into question the application of LPP when the Bill’s powers are exercised…” Quite right.

The Committee therefore recommended that provision for the protection of privilege in relation to all categories of acquisition and interference addressed in the Bill should be included on the face of the Bill, and not solely (as currently planned by the Home Office) in a code of practice. It was further recommended that the Home Office should review its proposals in relation to privilege to ensure that they met the requirements of Article 8 ECHR, and relevant case law, and that the government should consult with the Law Society and others as regards how best this can be achieved.

What to make of this? The clear interpretation of what the Joint Committee is saying is that the government needs reminding of the need to recognise that, even with legislation of this sort, designed to assist law enforcement agencies and to protect the state in the most extreme of situations, the importance of privilege is such that it is appropriate to ensure it is not overridden or minimised. To the contrary, the recommendation that express provision should be made on the face of the legislation demonstrates that the Joint Committee has taken on board concerns that even the acquisition of communications data, if not properly regulated, can undermine privilege.

It remains to be seen how the Home Office will react to this report, both generally and in relation to the specific recommendations in relation to privilege. At least an influential body within Parliament has accepted what has been the position under English law for many years now, namely the overriding importance of privilege. It is to be hoped that the Home Office will now accept this position and bring the Bill into line, so far as concerns privilege, with all other UK legislation.