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Safeguarding legal professional privilege

Readers will know that there is presently before Parliament the very important Investigatory Powers Bill, which is generating a lot of heat and discussion. It is a very important Bill, as it will provide a long overdue opportunity to address the inadequacies of the excruciatingly drafted Regulation of Investigatory Powers Act 2000 and thereby, we hope, provide a clear legislative basis for intrusive investigations into the activities of individuals and others in this country.

No right-thinking citizen would ever seriously question, particularly given global events of the last 10 years or so, the entitlement of the state to have fairly far-reaching intelligence powers to protect national security and our personal safety.

But even these powers cannot be granted to the state without some limits. The Law Society, together with the Bar Council, has been making sustained representations to the Joint Select Committee currently reviewing the Bill on a very important limitation. It concerns the extent to which these powers should or should not be allowed to intrude, whether inadvertently or otherwise, and whether by means of interception or surveillance, on communications and communications data that are protected by legal professional privilege.

We all know the importance of privilege:

  • The common law developed right that is now 500 years old.
  • The highest right known to the law.
  • A right that has evolved into a fundamental common law right.
  • A right that is also protected by Articles 6 and 8 of the European Convention on Human Rights, as well as being recognised and protected under the law of the European Union.

Accordingly, privilege is jealously guarded, not only by the legal profession but also by our judiciary, since it is the common law which has shaped the evolution of this right into its present status and has repeatedly stated at the highest levels that privilege is sacrosanct. That status, and the supremacy of privilege as a right to communicate in absolute secrecy, has also long been fully recognised by Parliament, which has ensured that provisions protecting privileged communications have been included – with one notable exception – in every statute and statutory instrument that confer, for example, investigatory and evidence gathering powers.

The very real consequence of this is that previously no state agency or public authority – for example, the police, the SFO, HMRC, the Bank of England, the FCA etc – has been entitled under English law to compel a citizen or his lawyers to reveal the contents of their communication. In short, English law confers an absolute protection upon privilege which can never be overridden, even if this means that, for example, the police and other law enforcement agencies – and indeed the courts – are potentially deprived of relevant, even crucial, evidence or information. The House of Lords 1996 decision in Derby Magistrates is the best example of this.

The draft Investigatory Powers Bill, along with RIPA, are unique in failing to recognise the supremacy of privilege and to accord it anything like these appropriate levels of protection. It appears that Parliament did not debate whether RIPA was intended to override privilege, and it is clear that the House of Lords was reluctantly driven in its 2009 decision in McE to accept, as a matter of interpretation, that it was nevertheless Parliament’s intention that RIPA could permit the use of covert surveillance techniques to be used, in certain circumstances, to listen to privileged conversations between clients and lawyers. However, that decision caused the House of Lords to warn of the very “real chilling effect” that such surveillance activities can have on the effectiveness and openness which should govern communications between client and lawyer. They proceeded quite clearly on the basis that such interference should happen rarely.

It is probably the case that revelations over the last year, especially the Investigatory Powers Tribunal decisions in Belhadj and other cases, have led us to realise that although we thought – even hoped – that interference with privilege under RIPA and related security services legislation was exceptional, the probability is that it seems to be happening on a more routine basis.

This has the ability to undermine privilege, which is already under attack from the way in which some of our criminal justice and regulatory enforcement bodies seek to chip away at a client’s ability to assert privilege. The draft Bill is therefore an incredibly important opportunity for the legal professions to lobby and persuade Parliament through the Joint Select Committee to reassert the importance of privilege and the primacy of the right that it represents, by inserting express protection for the privilege on the face of the Bill.

I was fortunate enough to give evidence on behalf of the Law Society to the Joint Select Committee last week, as its expert on the subject. Who knows what the Joint Select Committee will conclude, but it is fair to say that it seems to have fully grasped the implications of what the Law Society is saying (and indeed the Bar Council, Liberty and other bodies) about the impact on this famous and important right if steps are not taken to amend the Bill in the way that is being suggested.

I have been concerned for some time that unless such steps are taken to correct what the House of Lords clearly reluctantly held in McE in 2009, then we are sleep walking into a situation where the right to privilege will be more and more undermined and its value more and more diminished. As the year in which we have rightly celebrated the 800th anniversary of Magna Carta draws to a close, I hope that all lawyers in the UK will join together in working to protect this right by supporting the efforts of The Law Society and the Bar Council.

Simmons & Simmons Colin Passmore

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