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. 

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.’