Protecting privilege

The Chairman warns of the dangers posed to legal professional privilege by the Investigatory Powers Bill

An essential right in a democracy is that of individuals, and others, to consult with a lawyer. 

As barristers we are part of this process every day, and we need to ensure our clients have access to independent legal advice and representation. We, like many of our clients, may sometimes take this right for granted. Having heard from lawyers from Zimbabwe who participated in the recent World Referral Bars Conference 2016 (hosted in Edinburgh by the Faculty of Advocates) about the continuing challenges faced by them, I was reminded that there are many jurisdictions in the world where lawyers and clients cannot take these rights for granted.

However, even closer to home, eternal vigilance is necessary. For the right to consult a lawyer to have any meaning, individuals must be able to engage independent legal advice in confidence. Again legal professional privilege (LPP) is something which most of us engage with frequently. It is not the right of lawyers, but rather the right of the client. We as lawyers take the existence of the privilege as given, although the extent of the protection may, on occasion, give rise to debate. Why is LPP at the forefront of my mind? Because of the Investigatory Powers Bill (the Bill), currently being rushed through Parliament. The timescale has been a source of controversy and difficulty. It is not the first time that surveillance laws have been rushed. The Bar Council is working with the Law Society and the National Union of Journalists in a campaign called Speak in Safety. We are campaigning for changes to the Bill to ensure statutory and meaningful protection of LPP, to ensure sufficient guarantees for press freedom and to enable journalistic sources and whistleblowers to speak without fear of oppression, or even prosecution. A few days ago as part of the Speak in Safety campaign, we jointly hosted an event in Parliament, chaired by Joanna Cherry QC MP, to persuade MPs and peers that more reflection and caution is needed.

The Bill provides an opportunity for Parliament to create a robust legislative framework for surveillance activities in a way that supports and upholds the rule of law. We welcome this, but the current proposals need to be strengthened.

Following a series of hearings of the Investigatory Powers Tribunal during the Belhadj case, the government last year admitted that the regime under which it had been monitoring conversations between lawyers and their clients was unlawful. These hearings revealed that intelligence agencies had been illegally intercepting privileged material. This also raised the possibility that they could have spied on the people who were challenging them in court. Legal privilege has been a common law right for centuries. Before the introduction of the Regulation of Investigatory Powers Act 2000 (RIPA), the practice of security agencies was to avoid surveillance of conversations between lawyers and client. This approach had statutory basis in the Police and Criminal Evidence Act 1984 (PACE). But RIPA, and a subsequent House of Lords ruling, changed all of that.

RIPA made no exception for the surveillance of legally privileged communications. In 2009, the House of Lords ruled in Re: McE, that Pt II of RIPA permitted covert surveillance of communications and consultations between a person in custody and his or her lawyer, even though such communications enjoyed legal professional privilege, and despite such a person’s statutory right to consult a solicitor privately. In effect, security considerations highlighted in RIPA overrode legal privilege because Parliament had not explicitly protected, or even mentioned, legal privilege.

One of the Bar Council’s concerns is that the current Bill does not provide for the protection of LPP within the Bill, but rather leaves this to non-binding codes of practice, which also set the threshold for intercepting professional privilege. Defining the threshold in codes of practice allows future change, relatively quickly and quietly by statutory instrument, thereby avoiding proper scrutiny by Parliament. The Bar Council has proposed amendments to the Bill as part of its representations to the Bill Committee which are intended to address these concerns.

Of course, where individuals use lawyer client communications for a criminal purpose, or to conceal such activities, privilege does not apply nor should it. Subject to the appropriate authorisations, surveillance of such communications 
should be lawful. However, the scope and reach of this Bill, and the proposed surveillance, has serious implications for the rule of law which is why the Bill should not be rushed through Parliament.

Returning to the World Referral Bars Conference, I chaired a conversation between David Anderson QC, the UK’s Independent Reviewer of Terrorism Legislation, and Bret Walker SC, the first Independent National Security Legislation Monitor appointed in Australia. Listening to these two barristers talk about their respective roles, and the vital importance of their independence to their ability to fulfil their tasks, highlighted for me perhaps the most important feature of our profession: independence.The heads of the referral Bars represented at the conference agreed to restate and reaffirm the Edinburgh Declaration of 2002. By the 2016 Declaration, the Bars acknowledged that ‘the independent referral Bars, the organised bodies of the profession of advocates and barristers, have a crucial role to play in defending the independence of the courts and in securing their efficient functioning, in affording effective access to justice and in promoting the rule of law’. Independence is, and I trust will remain, ingrained in us from the outset of our training and confirmed during our practice as barristers. It is a principle which is enshrined in our professional conduct rules, such as the ‘Cab Rank’ rule. Perhaps more importantly, independence is what our profession expects of each one of us, and what we expect of ourselves.

Contributor Chantal-Aimée Doerries QC, Chairman of the Bar

Category: 
Issue: