The president of the Law Society has voiced concerns for the future of legal professional privilege after criticising the ‘rushed’ introduction of recent sweeping surveillance powers.
Andrew Caplen told the Malaysian Bar Council on Monday that the right to consult a legal adviser in confidence, without either having their communications tapped or fearing they might be, was ‘fundamental’ to the right to a fair trial.
As the Queen prepares to present the government’s agenda for the next year, which is expected to contain a new communications data bill, Caplen said the UK’s existing data and surveillance rules were ‘complex and confusing’.
He described the Data Retention and Investigatory Powers Act 2014, which was introduced as emergency legislation in July, as a ‘far from perfect example of the British parliamentary system’.
The act was passed within three days, after the European Court of Justice ruled that the Data Retention Directive - the legal basis on which governments of EU member states were required to compel communication service providers to retain certain data - was invalid.
Caplen said: ‘You would have hoped that, given the importance and far-reaching implications of this act, that it would have been subject to at least the standard level of parliamentary scrutiny. Unfortunately this was not the case. DRIP was rushed through parliament as emergency legislation.
‘A cynic might argue that the process utilised was in order to prevent proper parliamentary and public scrutiny. Without any assurances that professional secrecy will be adhered to, should we assume the worst?’
Caplen said the Society would have a ‘big part to play’ in the debate over the future of the Human Rights Act, ‘whether that’s by publicly campaigning against change or acting as a “critical friend” – ensuring that every safeguard which must be kept, are’.
Today's Queen's speech is expected to announce a consultation on the Conservative government's manifesto pledge to 'scrap the Human Rights Act, and introduce a British bill of rights'.
Caplen is in Malaysia with a delegation organised by Mansion House, the City of London Corporation and City UK to support and promote the UK-based financial and professional services industry.