Investigatory Powers Bill

Written evidence submitted by the Law Society (IPB 58)

INVESTIGATORY POWERS BILL COMMITTEE

The Law Society of England and Wales is the independent professional body that works to support and represent over 163,000 members, promoting the highest professional standards and the rule of law.

1. Legal professional privilege (LPP) is amongst the highest rights known to the law. It is a fundamental and long standing element in the administration of justice, a fundamental common law right, and a human right protected by both Article 6 of the European Convention on Human Rights (fair trials) and Article 8 (privacy). It is also protected under the law of the European Union.

2. The Law Society has expressed its concerns about lack of protection for LPP in the Investigatory Powers Bill, notably in our evidence to the Joint Parliamentary Committee on the draft Bill. Our concern was acknowledged and shared by the Joint Committee. The Government’s response has been to propose clauses that seriously undermine this corner stone of our justice system.

3. However, we remain concerned that the proposed legislation explicitly seeks to confer powers that enable certain security and other agencies deliberately to target legally privileged communications. This is unprecedented, especially as there is no evidence available that justifies the need for such powers.

There is no need of new powers: the well-established crime-fraud exception provides the State with the appropriate means to intercept such communications if there are grounds establishing abuse. Otherwise the Government has no case for proposing that these rights be undermined. It cannot be right that State agencies be allowed to interfere into the otherwise sacrosanct exchanges between clients and their lawyers in the hope of unearthing information that is considered of interest to the State. 

4. The House of Lords in McE (2009) construed the terms of the Regulation of Investigatory Powers Act 2000 (RIPA) so that it applied to legally privileged communications in exceptional circumstances where this will be compatible with the European Convention.  It did so most reluctantly.  It was, quite rightly, seriously concerned by the likely 'chilling effect' on the client-lawyer relationship.  As Lord Phillips said:

If [covert surveillance] is to take place in respect of consultations between solicitors and their clients in prisons or the police station, it will be of no value unless this is such a rare occurrence that its possibility will not inhibit the frankness with which those in custody speak with their lawyers. It would seem desirable, if not essential, that the provisions of the [RIPA] Code should be such as to reassure those in custody that, save in exceptional circumstances, their consultations with their lawyer will take place in private. The chilling factor that LPP is intended to prevent will not then occur.

McE was decided in circumstances where the entitlement to intrude on privilege was at best implicit. That the Government now wishes to make it explicit is unacceptable in a society where the rule of law prevails. While these powers can only be used where "necessary" and a compelling case is made out, the inevitability is that once this gate way is opened, their use will become normalised. That is a shameful position for a nation that has led the way in civil and human rights for many years.

5. The Law Society urges Parliament to recognise that, except where the Government has the strongest grounds to believe that client-lawyer relationships will yield specific information to protect national interests or lead to the detection of serious crime, there should be no interception because the law already makes adequate provision through the crime-fraud exception. 

6. The Bar Council in its written evidence to the Committee has demonstrated how clause 25 could be redrafted to prioritise protection for LPP whilst ensuring that communications "tainted with an improper purpose" can be appropriately accessed. It has offered to redraft other relevant provisions in the Bill to the same effect.

The Law Society supports this approach and we encourage the Government to pursue the Joint Committee’s recommendation that in providing protection for LPP on the face of the Bill "The Government should consult with the Law Societies and others as regards how best this can be achieved" (Recommendation 46, para. 537).

The need for reconsideration is further highlighted by noting that even within the current - unacceptable - framework for ‘protecting’ LPP proposed in the Bill there are a number of very serious gaps which render that protection more apparent than real. In this submission we identify seven serious protection gaps.

Gap 1: Persons overseas communicating with legal advisers

If a British person (or any person) is outside the British Isles communicating with a lawyer abroad or within the British Isles, there is no requirement for prior judicial or even independent authorisation before LPP communications can be examined. This is because such communications will be intercepted by means of a bulk interception warrant and the requirement of c.13(3) and c.134(4) for a targeted warrant for examination of such material does not apply.

The requirement for a senior official to be satisfied that specific arrangements are in place for handling, retention, use and destruction of items examined that are subject to LPP (c.135) is clearly not such a requirement It is a basic principle of the ECHR that access to LPP material requires ex ante independent authorisation (meaning both operationally independent and independent of the executive): Kopp v Switzerland (1998) 27 EHRR 91 (§74); RE v UK, App. No 62498/11, 27 Oct 2015. In McE v Prison Service of Northern Ireland [2007] NIQB 101 the Divisional Court of Northern Ireland held that the authority of a senior police officer "however detached he may be from the matter under investigation" cannot "provide a sufficient safeguard" for interception of privileged communications" (at §14 per Campbell LJ). It should not matter that a person is communicating with their lawyer from continental Europe, the USA or any other country in the world, especially where they are communicating with their lawyer in the British Isles: that protection should be guaranteed by law.

Gap 2: Absence of protections for communications data relating to lawyer/client communications

There is a substantial gap in the Bill’s protections for LPP insofar as these relate to communications data. As technology has advanced, there is a diminishing distinction between content and communications data. Thus, the UN General Assembly Resolution A/C.3/69/L.26/REV.1 (26.11.14) recognised that "certain types of metadata, when aggregated, can reveal personal information and give an insight into an individual’s behaviour, social relationships, private preferences and identity" (recitals, p.3).

Such information allows a "precise picture to be built up of a lawyer’s dealings with clients and about a person’s dealings with their lawyer. It enables deductions to be made about the content of such communication and about legal advice sought and received. For that reason, such information will often be protected by legal professional privilege" (Gardner v Irvin (1878) 4 Ex D 49 at 83 (Cotton LJ).

LPP is also engaged in a second way. In some cases, the very fact that a person has consulted a solicitor is itself highly confidential; or the identity or location of a lawyer’s client will be confidential. The domestic courts of England and Wales have recognised that disclosure of such information would also infringe legal professional privilege. This is because it jeopardises the core underlying rationale for legal privilege, which is the need to ensure that nobody is inhibited from consulting a lawyer.

It is however now established that disclosure of dates and times of communications with lawyers, or information disclosing the identity or whereabouts of a client, can be protected by LPP: Gardner v Irvin (1878) 4 Ex D 49 at 83 (Cotton LJ); JSC Bank v Addleshaw Goddard LLP [2012] EWHC 1252 (Comm); SRJ Person(S) Unknown being the author and commentators of Internet Blogs, D & Co [2014] EWHC 2293 (QB); JSC BTA Bank v Solodchenko & Ors (No 3) [2011] EWHC 2163, [2013] Ch 1:

I can think of few things more likely to inhibit the exercise by a client of his fundamental right to seek legal advice than an order requiring his solicitor to disclose to an adverse party contact details which were supplied to the solicitor in strict confidence and for the sole purpose of enabling the client to communicate with the solicitor. In my view any such order would tend to undermine the relationship of confidence which must subsist between solicitor and client if the client is to be able to unburden himself freely to the solicitor (Henderson J at §19).

The absence of protection for communications data is a second major gap in the LPP protection:

· The Bill makes no provision at all for protection of LPP in the context of obtaining communications data, outside the warrant regime under the power in Part 3 of the Bill (Acquisition of communications data) and Part 6 Chapter 2 (bulk acquisition warrants).

· This will allow a wide range of public bodies' access to communications data relating to lawyer-client communications without any protection for the especially confidential nature of such information.

· Communications data will also be obtained under interception warrants alongside content data. However, under the provisions for bulk interception and equipment interference contained in Part 3 Chapters 1 and 3, newly proposed protection for LPP only apply to the content of communication. The protections contained in c.135 relating to data obtained by bulk interception only apply to examination of "content" of communications not the associated communications data (c135(1) and (2)) and the limitation of the corresponding protection in respect of bulk equipment interference to "protected material" is to equivalent effect (c171(1), c.88

There is therefore likely to be a substantial amount of communications data relating to the communications between lawyers and their clients which falls entirely outside the provisions on LPP built into the act. It is only in the case of targeted warrants sought for the purpose of obtaining LPP material or which are likely to lead to this being obtained where the proposed LPP protections would have any application to communications data.

Gap 3: Absence of protection for LPP material obtained unexpectedly or unintentionally

There is no significant protection in the Bill for LPP material obtained under a warrant inadvertently or where it was not thought "likely" that such material would be obtained). In practice this may be most, or at least a large part of, the LPP material that is obtained by law enforcement or intelligence agencies. It is only where material is sought for the purpose of obtaining LPP material that the protections contained in c.25 (interception) and c.100 (equipment interference) apply.

The only protection for unexpectedly obtained material (beyond the protections that apply to all material) is that the Investigatory Powers Commissioner must be informed if LPP material is gathered (e.g. c.46(7)). There is no requirement that it be destroyed or that it be only used or retained for compelling reasons.

Gap 4: Weakness of protection where warrants or examination is likely to involve LPP material

Even where it is thought "likely" that a warrant will capture LPP material, the only requirement is that the standard protections relating to handling, access and storage apply and that these include "specific arrangements for the handling, retention, use and destruction of such items". The Bill does not specify what the specific arrangements should be, even in general terms. That is a major problem with the Bill. It leaves such protections to the Code which is not legally binding and is written and open to alteration by the executive.

The new draft Interception Code published alongside the Bill does not materially add to the general provisions on handling, retention, use and destruction of such items. Thus the draft Code merely states:

9.49 Where it is discovered that privileged content has been obtained inadvertently, an early assessment must be made of whether it is necessary and proportionate to retain it for one or more of the authorised purposes set out in section 46(3). If not, the content should be securely destroyed as soon as possible.

9.50 Content which has been identified as legally privileged should be clearly marked as subject to legal privilege. Such content should be retained only where it is necessary and proportionate to do so for one or more of the authorised purposes set out in section 46(3). It must be securely destroyed when its retention is no longer needed for those purposes. If such content is retained, there must be adequate information management systems in place to ensure that continued retention remains necessary and proportionate for the authorised statutory purposes.

These provisions do not materially add to the provisions that apply to all types of material.

Further provision is made in respect of dissemination to third parties (Code 9.52 – 9.54) requiring inter alia, legal advice to be taken and a clear warning provided that material is subject to LPP. These provisions do go beyond the general provisions on dissemination to third parties. However, there are no substantive protections on the use, retention, dissemination of LPP material (etc.) beyond the tripartite criteria that apply to all such use (i.e. the interests of national security, protection and detection of serious crime and protection of the economic well-being of the country).

The result is a paradox: where UK authorities seek information for a purpose of obtaining LPP material they must surmount the test of "exceptional and compelling" circumstances; but where LPP material is obtained inadvertently or where this was not a purpose of an operation, there is no such limitation on the retention, use or dissemination of the material. It can be accessed, used and retained for general purposes. If there is no exceptional and compelling need for such material, it should be destroyed. The Bill should ensure that arrangements are in place to ensure that material is only used, kept and disseminated where such exceptional and compelling circumstances exist.

Gap 5: Substantial modifications can be made to warrants by executive officers without any LPP protection

The Bill continues (vis a vis the first draft Bill published in November 2015) to provide for significant modifications to be made to judicially approved warrants without further judicial approval (c.30). This can include adding the name of a person to a warrant or a premises (a major amendment), or removing restrictions and safeguards for selecting content of communications for examination (a minor amendment). This can be done by senior officials and in the case of minor amendments by persons holding senior positions in the public authority to whom the warrant is addressed. Such modifications could obviously be done for the purposes of obtaining LPP material or be likely to lead to such material being obtained, or remove protections designed to mitigate interference with LPP. Yet there the statutory protections do not apply to such modifications and they do not even require approval by a Judicial Commissioner. This is a major problem with the protections placed in the Bill.

Gap 6: Mismatch between the additional protections for LPP and the scope of the Judicial Commissioners’ functions under the 'double-lock' provisions

The role of the Judicial Commissioner in approving warrants that are intended to obtain some LPP material, or where it is likely that some such material will be obtained, is not clear from the legislation itself.

The Judicial Commissioners’ functions are limited to reviewing the Secretary of State’s conclusions as to (a) whether the warrant is necessary in the interests of national security, preventing or detecting serious crime, or economic well-being of UK and (b) whether the conduct that would be authorised is proportionate to what is sought to be achieved by that conduct (c.21(1)). The Judicial Commissioners must review the decision in the same manner as a judicial review of the Secretary of State’s decision.

Judicial Commissioners are not mandated to review the Secretary of State’s decision that there are exceptional and compelling circumstances for obtaining LPP material, or that specific arrangements are in place, relating to handling, use and destruction or material, under cc.46 and 132. The draft Code envisages that the Commissioners will apply the exceptional and compelling test [1] but the relevant clauses in the Bill are not drafted in this way. Whilst the requirement to ensure that conduct authorised is proportionate would allow a Judicial Commissioner to consider the protections in place for LPP, the way that the clauses have been drafted leaves considerable uncertainty as to the Judicial Commissioners’ functions in respect of warrants. The Bill should amend the clauses addressing the function of the Judicial Commissioners to make clear that they need to determine whether there are exceptional and compelling circumstances in cases in which LPP material is sought and that there are adequate safeguards in place both in the Codes and in the terms of the warrant sought themselves.

Gap 7: ‘Exceptional and Compelling Circumstances’ is watered down by the Code

As the Bar Council points out, there is also a serious problem with the draft Code in that it suggests that 'exceptional and compelling' adds nothing to the general requirement applicable to all warrants that material be necessary in the interests of national security or for protection or detection of crime. It states that "such circumstances will arise only in a very restricted range of cases, such as where there is a threat to life or limb or in the interests of national security, and the interception is reasonably regarded as likely to yield intelligence necessary to counter the threat." [2]

This is just a restatement of the general test for intercepting communications.

Conclusion

For these reasons the Law Society urges the Bill Committee to reject the Government’s current proposals on LPP and encourage it to consult with the Law Societies and others as recommended by the Joint Committee.

April 2016


[1] Draft Interception Code 9.41

[2] Draft Interception Code 9.41

 

Prepared 12th April 2016