MPs are today considering proposals backed by the Law Society to protect legally privileged communications from state interception as the government’s Investigatory Powers Bill begins the committee stage of its process through the House of Commons.
Legal professional bodies including the Law Society and the Bar Council have joined forces to condemn the lack of safeguards in the bill and the speed with which it is being rushed through parliament.
Concerns include the lack of protection for communications data and the weakness of the proposed test that legal privilege may be breached in ‘exceptional and compelling circumstances’.
Law Society vice-president Robert Bourns told an event organised by the National Union of Journalists in parliament last night that legal professional privilege had been established in common law for more than 400 years and more recently by both articles 6 and 8 of the European Convention on Human Rights.
‘It is not something that is owned by solicitors. Legal professional privilege plays a crucial role in the administration of justice.’
The Society is backing a series of amendments drafted by the Bar Council, which, among other safeguards, would set a higher threshold for surveillance and placing it in primary legislation rather than in codes of practice, which can be amended without parliamentary scrutiny.
Bar chairman Chantal-Aimée Doerries told the event: ‘Before surveillance of lawyer-client communications is authorised, there must be compelling evidence that those communications are being used for a criminal purpose. A lesser standard, such as “suspicion”, would not be good enough.’
National Union of Journalists general secretary Michelle Stanistreet said that the bill lacked safeguards to protect communications between journalists and confidential sources. As drafted, it would also enable the state ‘to interfere in the legitimate and democratic activities of independent trade unions’.
However the event’s chair, Scottish National Party MP Joanna Cherry QC (pictured), warned that the government’s majority on the committee and the tight timetable granted to the bill would make amendments difficult.
Cherry described the timetable allowed for the bill as ‘a disgrace’.
Meanwhile, the Court of Justice of the European Union will today hear a claim brought by a cross-party group of UK politicians supported by the Law Society that UK law on the retention of communications data does not meet European requirements for clear rules.
Case C-698/15 David Davis, Tom Watson & Others follows a judicial review last July in which the High Court ruled that the Data Retention and Investigatory Powers Act 2014 was not compatible with EU obligations because it does not lay down clear and precise rules for providing access to and use of data.
The Society’s intervention is on the grounds that this lack of clarity denies protection for communications enjoying legal professional privilege. The Society has instructed Tom Hickman of Blackstone Chambers as its advocate at the hearing.