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Plans for judicial oversight of surveillance requests are not as safe as they appear and fail to protect legal professional privilege (LPP), the Bar Council has warned.
A watered down draft Investigatory Powers Bill, published last month, introduces judicial approval of ministerial decisions to permit intelligence agencies to monitor communications.
But Bar Council Chairman, Alistair MacDonald QC, said the ‘double lock’ requirement of judicial and ministerial authorisation is not as secure as it is made out to be.
Ministers, he said, will be able to authorise the interception of communications in ‘urgent cases’, defined as up to five days without authorisation, where judicial approval is not possible.There are likely to be high volumes of such cases, believes MacDonald.
‘Excluding judicial authorisation under any circumstance immediately removes the element of independent oversight,’ he said.
MacDonald added that the Bill fails to protect LPP, leaving it to be dealt with in separate codes of practice to be published next year. ‘If the client, in sensitive cases, knows or suspects that his or her conversations with their lawyer are being overheard by agents of the state, they simply will not be able to be frank with their legal advisors and miscarriages of justice may occur,’ the Bar Chairman said.
‘We know from experience that these codes are little more than guidelines, and we need more than that to protect the important right to consult a lawyer in private. In the absence of any effective measures to make unlawful the targeting of communications between client and lawyer by public authorities, there is no meaningful protection for LPP,’ he added.
Plans for judicial oversight of surveillance requests are not as safe as they appear and fail to protect legal professional privilege (LPP), the Bar Council has warned.
A watered down draft Investigatory Powers Bill, published last month, introduces judicial approval of ministerial decisions to permit intelligence agencies to monitor communications.
But Bar Council Chairman, Alistair MacDonald QC, said the ‘double lock’ requirement of judicial and ministerial authorisation is not as secure as it is made out to be.
Ministers, he said, will be able to authorise the interception of communications in ‘urgent cases’, defined as up to five days without authorisation, where judicial approval is not possible.There are likely to be high volumes of such cases, believes MacDonald.
‘Excluding judicial authorisation under any circumstance immediately removes the element of independent oversight,’ he said.
MacDonald added that the Bill fails to protect LPP, leaving it to be dealt with in separate codes of practice to be published next year. ‘If the client, in sensitive cases, knows or suspects that his or her conversations with their lawyer are being overheard by agents of the state, they simply will not be able to be frank with their legal advisors and miscarriages of justice may occur,’ the Bar Chairman said.
‘We know from experience that these codes are little more than guidelines, and we need more than that to protect the important right to consult a lawyer in private. In the absence of any effective measures to make unlawful the targeting of communications between client and lawyer by public authorities, there is no meaningful protection for LPP,’ he added.
The Chair of the Bar reports back
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