Protection for legal privilege promised in new snoopers’ charter
A new law governing official interceptions of communications will contain statutory protection for legal privilege, the home secretary said today.
The measure, in a revised investigatory powers bill published today, follows a campaign by the Law Society and other professional legal bodies.
New legislation to regulate communications surveillance has to be in force by 31 December this year to replace the Data Retention and Investigatory Powers Act 2014, which was suspended following a High Court ruling that sections were incompatible with EU law.
However draft legislation published last year ran into a storm of criticism, particularly for proposing a power for so-called ‘blanket retention’ of internet browsing records.
In her statement to parliament, Theresa May (pictured) said that the government is ‘not seeking sweeping new powers’ and had taken on board the criticisms of three parliamentary committees.
As a result, she said: ‘The privacy safeguards are stronger and clearer. The bill incorporates additional protections for journalists, removing a key exemption for the security and intelligence agencies when seeking to identify journalists’ sources. And it incorporates statutory protections for lawyers.’
She also said that the revised measure would strengthen the office and powers of the investigatory powers commissioner, giving the lord chief justice a role in his or her appointment.
Despite these assurances, the statutory protection for legal privilege as set out in the bill appears less than absolute. A section on ‘additional safeguards’ states that a warrant for ‘targeted equipment interference’ may be issued only if there are 'exceptional and compelling circumstances which make it necessary to authorise or require interference with equipment for the purpose of obtaining items subject to legal privilege or… the selection for examination of items subject to legal privilege.'
The Law Society said it has concerns that the protection does not go far enough. President Jonathan Smithers said: ‘Intelligence agencies and the police need surveillance powers to protect us, but proper scrutiny of the Investigatory Powers Bill by parliament would ensure that the bill is fit for purpose when it becomes law. We will engage with the government and parliament to ensure that the right balance between security and safety and clients’ rights to protection of their legal professional privilege is achieved.’
In a highly critical response, the Bar Council described the safeguards as inadequate and said the government had set a parliamentary timetable too rushed for proper scrutiny.
Chairman of the bar Chantal-Aimée Doerries QC said: ‘The Bar Council is disappointed that the bill introduced to parliament today does not provide sufficient protection for legal privilege on the face of the bill. It is vital that this measure is subject to proper parliamentary scrutiny to ensure that the interests of justice and security are kept in balance.
'That is why we shall continue to take a close interest in the bill during its progress through parliament.’
However Renate Samson, chief executive of pressure group Big Brother Watch, said: ‘The government are squandering a golden opportunity to create a law fit for the digital age.
‘By publishing hundreds of pages of clauses and codes of practice less than a month after the proposals were so roundly criticised by three parliamentary committees, the Home Office are showing a complete disregard for the process of parliamentary scrutiny.’