Investigatory Powers Bill

Written evidence submitted by the Bar Council (IPB 38)

WRITTEN EVIDENCE TO THE INVESTIGATORY POWERS BILL COMMITTEE INCLUDING DRAFT AMENDMENTS: ANNEX 1

1. This is the response of the General Council of the Bar of England and Wales (the Bar Council) to the call for evidence from the Scrutiny Unit on the Investigatory Powers Bill.

2. The Bar Council represents over 15,000 barristers in England and Wales. It promotes the Bar’s high quality specialist advocacy and advisory services; fair access to justice for all; the highest standards of ethics, equality and diversity across the profession; and the development of business opportunities for barristers at home and abroad.

3. A strong and independent Bar exists to serve the public and is crucial to the administration of justice. As specialist, independent advocates, barristers enable people to uphold their legal rights and duties, often acting on behalf of the most vulnerable members of society. The Bar makes a vital contribution to the efficient operation of criminal and civil courts. It provides a pool of talented men and women from increasingly diverse backgrounds from which a significant proportion of the judiciary is drawn, on whose independence the Rule of Law and our democratic way of life depend. The Bar Council is the Approved Regulator for the Bar of England and Wales. It discharges its regulatory functions through the independent Bar Standards Board.

Legal Professional Privilege

4. One of the essential rights in a democracy is that of a citizen to consult with a lawyer. For that right to have any meaning, especially when it so often occurs in circumstances when the citizen is in some form of legal dispute with the state, the citizen must be able safely to engage independent legal advice in confidence. There are two main reasons for this.

5. First, clients who cannot be sure that conversations with their legal representative are held in confidence often fail to communicate information which is vital to their case. The result is that defence teams may not know about perfectly proper defences open to a defendant and will therefore not advance them at trial. This can compromise a defendant’s right to a fair hearing and has been described as having a "chilling effect" on lawyer client communications.

6. Secondly, where privileged material is passed, deliberately or otherwise, to Government lawyers who are defending a claim against the state or prosecuting an individual, the integrity of a trial is lost and the right of an individual to fair process is undermined entirely. The surveillance of privileged material therefore also carries the risk that those guilty of offences are not successfully prosecuted.

7. The expression "Legal Professional Privilege" (LPP) is used to describe the right to consult a legal representative in confidence. It is not the right of lawyers; privilege is the right of the client. Lawyers are its servants not its owners. Failure to protect that privilege amounts to a significant derogation of a fundamental constitutional right which is part of the foundation of the rule of law.

Limits of legal privilege

8. Legally privileged communications are those between a client and their lawyer which are used for legal advice or in connection with actual or pending litigation. Legal privilege does not apply where communications between a lawyer and client are made in furtherance of a criminal purpose. For the purposes of this Bill, the Bar Council amendments state that criminal purposes include doing anything involving an imminent threat of death or serious injury, or an imminent and serious threat to national security, or concealing or impeding the detection or prevention of any of those things.

9. The Bar Council believes that relevant agencies should, therefore, have the authority to intercept communications between clients and lawyers where there are compelling grounds to believe that those communications are being used for the furtherance of a criminal purpose. In addition, the Bill should, subject to provisions, authorise the interception of privileged materials where they will be captured unavoidably along-side non-privileged material.

Legal status of Legal Professional Privilege

10. Before the introduction of the Regulation of Investigatory Powers Act (RIPA) 2000, 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). However, RIPA 2000 made no exception for the surveillance of legally privileged communications. Indeed that Act, and the Bill which led to it, made no reference to LPP. Hence Parliament had no opportunity to consider the relationship between the authorities’ information-gathering powers and the protection of LPP. That contrasts sharply with every other statute enacted since 1984 dealing with investigation of terrorism and other threats to national security. See, for example, Part 3 of the Police Act 1997 and section 10 of the Terrorism Act 2000. On each occasion Parliament has enacted provisions mirroring the common law scope of legal privilege, as set out above. The absence from RIPA of provisions about privilege led the House of Lords in the case of Re McE [2009] UKHL 15 to rule, by a majority, that a provision making conduct authorised under the Act "lawful for all purposes" overrode LPP.

11. In the wake of McE, the surveillance of legally privileged communications was avowed by the Security Services in 2015 during the Belhadj case in the Investigatory Powers Tribunal. One of the outcomes of this case was that we learned that the codes of practice which governed the surveillance of legally privileged material had failed to prevent the security services – as they admitted – from treating privileged information in much the same way as they would any other source of intelligence. The Government was obliged to concede that such an approach to surveillance had been unlawful.

12. The McE decision demonstrated the importance of Parliament expressly considering and debating LPP when deciding what powers the police and security services should have. The Bar Council welcomes the Government’s decision – responding to recommendations made by the Joint Committee on the draft Bill - to include at least some provision about LPP on the face of the Bill as introduced. However, as we explain below, the draft provisions cover only some of the authorities’ new and extended information-gathering powers; and they are in any event inadequate for their purpose.

Communications Data

13. In respect of communications data, the Government has consistently denied that such information should attract legal privilege.

14. The term ‘communications data’ (CD) embraces the ‘who’, ‘when’, ‘where’, and ‘how’ of a communication revealing matters such as the identity and whereabouts of the sender and recipient of a communication, together with the date and time of dispatch and delivery.

15. Access to CD now enables the authorities to piece together a very complete picture of what the contents of a communication might look like. There is a diminishing distinction between CD and its content in terms of what we can learn about the target. CD may disclose not only the existence of the lawyer-client relationship but also the substance of the advice sought and given (for example the identity of an expert witness who has been copied into an email). [1] Accordingly, the argument that CD is not covered by LPP is no longer tenable. The Government, recognising this, has removed from the draft Codes of Practice a previous suggestion that CD can never itself attract LPP.

16. In July 2015, David Davis MP and Tom Watson MP were successful in their judicial review challenging the data retention provisions of DRIPA in the High Court in London. [2] The UK legal professions welcome the court’s acknowledgement in that case that "communications with lawyers do need special consideration". [3]

The Investigatory Powers Bill

17. Sometimes a surveillance operation will target a large volume of material that will, almost inevitably, include some lawyer-client communications protected by LPP. The raw product of the operation will consist of both privileged and non-privileged information. This is known as mixed material and it is often not possible to know which is which until it is intercepted; likewise where the authorities target lawyer-client communications which they initially believe to have lost the benefit of LPP because made for a criminal purpose, but which subsequently turn out to be privileged.

18. Clauses 25 and 100 (which deal with LPP in the context of targeted interception and targeted equipment interference) contain provisions that deal broadly satisfactorily with material in those categories. Arrangements must be in place to minimise the prospect of acquiring privileged material and to prevent such material from being further processed or disclosed once it is identified as privileged. These clauses can readily be supplemented with content in the Codes of Practice to ensure these situations are adequately catered for and that the privileged and non-privileged materials are handled in different ways.

19. However, as drafted and when read with the Clause 225 definition of "items subject to legal privilege", Clauses 25 and 100, as well as Clauses 135 and 171 (bulk interception and bulk equipment interference) permit the targeting of items which are known to consist of legally privileged materials only. These Clauses provide that privileged items can be accessed in "exceptional and compelling circumstances". That test is not further defined in the Bill, but the draft (non-binding) Codes of Practice set the threshold for intercepting purely privileged communications as where there is "a threat to life or limb or in the interests of national security."

20. This is highly problematic. It provides inadequate protection for LPP for two reasons. First, the threshold is set too low. A threat to "life or limb" could include a non-criminal act or omission creating no more than a risk of personal injury. The expression "the interests of national security" could cover a wide range of situations well outside the "criminal purpose" exception to legal privilege. This confused situation is unacceptable. Either information is held for a criminal purpose, in which case it is not privileged and ought to be accessible to the authorities (subject to the usual principles of necessity and proportionality); or it is not, in which case it is privileged and the authorities have no business accessing it.

21. Secondly, the test is effectively contained in the Codes of Practice, which are not binding and which can be changed by statutory instrument, thereby avoiding full parliamentary scrutiny.

22. The Bill also makes no provision for the protection of communications data which attract LPP, nor any specific provision for LPP in the context of targeted or bulk acquisition of communications data.

23. The Bill also leaves intact two sets of powers governed by RIPA 2000: covert surveillance and use of covert human intelligence sources (Part 2 of RIPA), and decryption of data (Part 3 of RIPA).

Proposed amendments to the Bill

24. The Bar Council invites Parliament to ensure that the Bill provides both the proper protection of privileged information and appropriate access to legal communications that are tainted with an improper purpose and are thus of legitimate interest to the authorities. They do this as follows.

25. The three strands of the Clause 225(1) definition of "items subject to legal privilege" all exclude from the scope of LPP any item held for a criminal purpose. The Bar Council’s draft amendments make clear that - for the purposes of the Bill - "criminal purpose" includes:

· doing or facilitating anything involving an imminent threat of death or serious injury or an imminent and serious threat to national security;

and

· concealing, or impeding the detection or prevention of, the doing or facilitation of any of those things;’.

26. That broadly preserves the statutory and common law boundaries of legal privilege, while avoiding any doubt whether "criminal purpose" includes everything that could sensibly be regarded as being of legitimate interest to the authorities. That would cover, for instance, communication of information about the identities of persons thought to be involved in a conspiracy to launch terrorist attacks or to enable the funding of terrorist activity. This amply covers the example given at paragraph 9.41 of the draft Interception Code of Practice which defines the "exceptional and compelling circumstances" under which privilege could be breached. That sort of information ought to be accessible to the authorities, not because there is a good reason for breaching privilege (as the draft Code suggest) but because the information is simply not protected by privilege in the first place.

27. That definition will also apply to Clause 50 (meaning of "excepted disclosure" in relation to exclusion of interception-related matters from legal proceedings), although whether any intercept material is actually admitted will be subject to the usual powers of the court or tribunal to allow or disallow evidence.

28. A new definition of items "presumptively subject to legal privilege" is inserted in Clause 225(1). This is picked up in the amendments to individual Clauses. The amended Clauses will contain a presumption that legal communications are privileged, and should only be targeted if there are proper grounds for believing that they have lost their privilege because they are caught by the "criminal purpose" exception. That is achieved by the amendments to subsections (1) and (2) of Clause 25 (page 19 lines 22-31). The person to whom the application is made can issue a warrant designed to enable access to presumptively privileged communications only where there is compelling evidence of a criminal purpose (as defined in the amended Clause 225(1)). That codifies the guidance at para. 9.38 of the draft Interception Code of Practice, which affirms that legal communications "must be presumed to be privileged unless the contrary is established", eg. where "there is clear and compelling evidence that the `furthering a criminal purpose’ exemption applies". The authorities can then determine whether the material is privileged or not.

29. The Bar Council will produce corresponding amendments to Clause 100 (targeted equipment interference), and similar amendments to Clauses 135, 171 and (if necessary) other provisions of Part 6, to bring these into line with Clause 25 as amended.

30. The draft New Clause after Clause 68 makes provision, equivalent to Clause 25 as amended, about access to communications data relating to legally privileged communications. Not all communications data about legally privileged communications is itself privileged, but much of it – and the information the authorities can derive from it – is. It is important that the person to whom an application is made can properly consider whether the data in question should be accessed. Subsection (7) of the New Clause provides for a judicial commissioner to play the same role in these cases as in cases covered by Clause 25. Simple self-authorisation by a senior official within an applicant organisation fails to provide the necessary protection for privileged communications.

31. The Bar Council will prepare an equivalent New Clause for Part 6 Chapter 2 (bulk acquisition of communications data).

32. The draft New Clause after Clause 68 and the amendments to Clause 225 will provide a template for a New Clause amending RIPA 2000 to provide corresponding protection for privileged communications in the context of surveillance, CHIS and decryption.

33. Active consideration is also being given to whether express protection for privilege is necessary in relation to some or all the provisions of Part 2 Chapter 2 (lawful interception without a warrant) and Part 7 (bulk personal datasets) of the Bill. If so the Bar Council will prepare appropriate amendments.

Bar Council

March 2016

Annex 1

Investigatory Powers Bill

Bar Council draft amendments including provisions for targeted interception, communications data acquisition and general definitions

Targeted interception of Communications: amendments to Clause 25

Clause 25,    Page   19,     line    22, after `items’ insert `presumptively’.

Clause 25,    Page   19,     line    27, after `items’ insert `presumptively’.

Clause 25,    Page   19,     line    31, leave out paragraph (a) and insert-

`(a) that compelling evidence indicates that the items in question consist of, or relate to, communications made for a criminal purpose such that it is necessary to authorise the interception, or (in the case of a targeted examination warrant) selection for examination, of those items, and’

Targeted acquisition of communications data: New Clause after Clause 68

`Items subject to legal privilege

(1) Subsections (2) and (3) apply if-

(a) an application is made by or on behalf of a relevant public authority for authorisation under this Part, and

(b) the purpose, or one of the purposes, of the authorisation is to obtain communications data relating to items presumptively subject to legal privilege.

(2) The application must contain a statement that the purpose, or one of the purposes, of the authorisation is to obtain communications data relating to items presumptively subject to legal privilege.

(3) The person to whom the application is made may grant the authorisation only if the person considers-

(a) that compelling evidence indicates that the items in question consist of, or relate to, communications made for a criminal purpose such that it is necessary to authorise the interception, or (in the case of a targeted examination warrant) selection for examination, of those items, and

(b) that the relevant public authority has made arrangements of the kind described in section 46 (safeguards relating to retention and disclosure of intercepted material), including specific arrangements for the handling, retention, use and destruction of such items.

(4) Subsection (5) and (6) apply if-

(a) an application is made by or on behalf of a relevant public authority for authorisation under this Part,

(b) the relevant public authority considers that the relevant communications data is likely to include communications data relating to items subject to legal privilege, and

(c) subsections (2) and (3) do not apply.

(5) The application must contain-

(a) a statement that the relevant public authority considers that the relevant communications data is likely to include communications data relating to items subject to legal privilege, and

(b) an assessment of how likely it is that the relevant communications data will include communications data relating to such items.

(6) The person to whom the application is made may grant the authorisation only if the person considers that the relevant public authority has made arrangements of the kind described in section 46 (safeguards relating to retention and disclosure of intercepted material), including specific arrangements for the handling, retention, use and destruction of such items.

(7) Subsections (1) to (6) of section 68 (commissioner approval for authorisations in relation to journalistic sources) apply to an authorisation to which this section applies as they apply to an authorisation in relation to the obtaining by a relevant public authority of communications data for the purpose mentioned in subsection (1)(a) of that section.

(8) In this section "relevant communications data" means any communications data the obtaining of which is authorised by the authorisation.’

Definition of "items subject to legal privilege" and "presumptively subject to legal privilege": amendments to Clause 225

Clause 225,    Page   176,     line    44, at end insert-

`and for the purposes (and only the purposes) of this Act, including the application of paragraphs (a), (b) and (c), a "criminal purpose" includes the purpose of-

(i) doing or facilitating anything involving an imminent threat of death or serious injury or an imminent and serious threat to national security, or

(ii) concealing, or impeding the detection or prevention of, the doing or facilitation of any of those things;’.

Clause 225,    Page   177,     line    6, at end insert-

`"presumptively subject to legal privilege", in relation to an item, means that disregarding any question of criminal purpose, the item falls to be treated as subject to legal privilege;’.