Interception of privileged communications between lawyers and their clients has become routine, the head of an international firm told the summit.
In a panel discussion on privacy, Colin Passmore (pictured), senior partner at international firm Simmons & Simmons, said that papers released in an ongoing tribunal case and revelations from CIA whistleblower Edward Snowden ‘can only be read as showing that legally privileged material is intercepted on a routine basis’.
Passmore observed that parliament and the courts have long recognised the unique position of legal professional privilege. Legislation granting new statutory powers almost always has express exceptions for client privilege. The sole exception is the ‘horrible to read’ Regulation of Investigatory Powers Act 2000, he said. ‘Section 27 of the act legitimises the interception of all communication so long as “properly authorised”.’
However, despite the assurances given to parliament during the bill’s passage 15 years ago, new revelations show that interception by the security services ‘goes beyond anything lawyers ever contemplated’.
‘This has become a modern-day Magna Carta issue,’ Passmore said. He urged the legal profession to ‘work together to ensure that parliament debates after the election whether this is acceptable; if not we will sleepwalk into new abuses which will undermine these most cherished of rights.’
Earlier, Sir Michael Tugendhat, a former High Court judge specialising in media cases, spoke of the problems faced by the courts in dealing with litigants in person taking action against individuals posting ‘revenge porn’.
One of his most painful duties as a judge was making orders of costs of tens of thousands of pounds against litigants in person who had a good case but who had made a procedural mistake such as not warning the defendant, he said. ‘Litigants in person do not understand that the legal system is based not on a judge conducting an investigation.’
Tugendhat was ‘delighted’ that parliament had now created a new criminal offence, he said. While most incidents would have contravened previous laws ‘it is always better to have a specific offence’, he said.
Condemning the legal aid cuts, he said: ‘There is a transparent saving in not granting legal aid but an untransparent shift of costs on to those administering justice.’