Allegations regarding the bugging of an MP underline the need for a full-scale review of surveillance legislation, argues Vicki Chapman


Jeremy Bentham's Panopticon, proposed by the philosopher in 1791 as a measure of social reform, is the archetype of a surveillance system. Bentham sketched an architectural scheme for 'seeing without being seen', by means of a circular building with cells open towards an inspector's lodge at the centre.



Where the gaze of the unseen warder was directed would be unknown to the inhabitants of the cells. Small tin tubes could link the inspector's lodge with the cells, Bentham suggested, so that 'the slightest whisper of the one might be heard by the other' to create 'apparent omnipresence'.



When the idea was implemented at Millbank Penitentiary, where Tate Britain now sits, there were riots.



Today we live within an electronic version of the Panopticon which is far more pervasive and hidden than Bentham's original idea. There will be no riots. The effects are chilling, not inflammatory. Nowhere is this chilling effect more serious for lawyers in particular than in relation to their confidential communications with clients - particularly those facing charges by the state.



Allegations that solicitors' confidential communications with clients had been bugged surfaced as part of the affair involving Sadiq Khan MP. The Rt Hon Sir Christopher Rose, Chief Surveillance Commissioner, was charged by the Secretary of State with investigating the bugging of Mr Khan. Sir Christopher concluded that, during the limited period covered by his inquiry, no authorities for surveillance of legal visits had been issued and he 'knew nothing to suggest that any unauthorised surveillance' took place. So far, so groundless. But the Law Society is calling for a thoroughgoing review of the legislation. Why? Because of the chilling effect of uncertainty.



The courts have been unequivocal. In R v Grant [2005] 3 WLR, Lord Justice Laws, delivering the judgment of the Court of Appeal, said that 'acts done by the police, in the course of an investigation which leads in due course to the institution of criminal proceedings, with a view to eavesdropping upon communications of suspected persons which are subject to legal professional privilege are categorically unlawful and at the very least capable of infecting the proceedings as abusive of the court's process'.



He also quoted the well-known passage from Lord Chief Justice Taylor of Gosforth in R v Derby Magistrates Court ex parte B [1996] AC 487, 507: 'Legal professional privilege is... much more than an ordinary rule of evidence, limited in its application to the facts of the particular case. It is a fundamental condition on which the administration of justice as a whole rests.'



The relevant legislation, however, is silent. No special protection for lawyer-client confidentiality exists in the Regulation of Investigatory Powers Act 2000 (RIPA). In relation to bugging and telephone tapping, the relevant codes of practice say only that 'an application for surveillance which is likely to result in the acquisition of legally privileged information should only be made in exceptional and compelling circumstances'. What these might be are not spelled out.



The scope for mistakes on the part of the police and the many other authorities who make use of RIPA is colossal.



Anyone who has attempted to read all the relevant legislation and codes of practice knows they are as opaque as the Panopticon inspector's lodge. Their effect is similar. A 'fundamental condition' of the administration of justice is being undermined by lack of clarity and transparency. The Law Society is calling for an overhaul of the legislation and its replacement with a transparent legal framework.



In Bentham's Panopticon the uncertainty was intentional. This surely cannot, however, have been the intention of Parliament.



Vicki Chapman is head of legal policy at the Law Society