Snooping bill ‘threatens 500 years of legal privilege’

Topics: IT and intellectual property,Law Society activity,Government & politics,Human rights

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A fundamental common law right traceable back to the 16th century is threatened by the government’s proposals for regulating communications interception, the Law Society has said. 

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In evidence submitted to a consultation on the draft investigatory powers bill, Chancery Lane condemns the absence of statutory protection for legal professional privilege (LPP), which it described as ‘the highest right known to the law’.

It says the draft bill, along with its predecessor the Regulation of Investigatory Powers Act, is unique in not recognising the importance of privileged communications between lawyers and their clients.  

The response repeats the Society’s joint call with the Bar Council for legally privileged communications data to be protected by express provisions and by adequate judicial oversight.

Although the earliest recorded instance of the principle of privilege in English case law dates back to 1577, the Society says the common law principle is over 500 years old.

‘Accordingly, LPP is recognised as a fundamental common law right, a human right protected by both article 6 of the European Convention on Human Rights (fair trials) and article 8 (privacy). It is also protected under the law of the European Union.’

LPP applies to communications data - records of communication traffic - as well as to the contents of messages themselves, the Society says, noting that such data may disclose not only the existence of a lawyer-client relationship but also the substance of the advice sought and given.

It describes as ‘inadequate’ the draft bill’s proposal for LPP to be protected by codes of practice, warning of the ‘chilling effect’ of surveillance. 

The Society recommends that the draft bill should be amended to include:

  • ‘Express recognition of the importance of LPP on the face of the bill, allied with appropriate protection that makes it clear that privileged communications are simply off limits. This protection should cover all forms of investigatory powers, including the acquisition of communications data;
  • ‘Provisions that ensure that the deliberate targeting of legally privileged communications, material, information and data are unlawful.’

Readers' comments (5)

  • Tell that to most District Judges on a application for disclosure of an insurers file/s with their clients and third parties on their client's behalf.

    We all know that these fields are mandatorily disclosable.

    District Judges don't.

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  • Double-Talk.........Which one is it? a RIGHT or a PRIVILEGE??

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  • Good point Hotep.

    Though, Jonathan Sumption QC was ruling recently was he not that effectively there is no such thing as Legal Privilege, Litigation or Advice Privilege that is?

    When not reading Barbara Truchman's papers/PHD Thesis for/on "A Distant Mirror" and planning his next book of course.

    All my own work I say (including a consummate reading of the Law of Privilege)

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  • I don't understand why we need such a clear and loud legal power to conduct commercial surveillance in the "national interest". The old protocols would suffice.

    There is something deeper here. A recognition that limited liability has removed the self interest driven structural moral compass in legal services. We saw this at work in London's leading role in the creation of Buffets "weapons of mass destruction". Another instance and London's status as 1 of the big 3 global financial centres would drift away.

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  • I agree about unlimited liability and the 'profession' being spun around like marionettes by the real professional body the Claims Handling (Law) Society and SRA now answer to, namely the FCA captured by two or three global insurers.

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