6Legal professional privilege
6.1Communications between lawyers and their clients are another category of confidential communications recognised as deserving special legal protection. In UK law this public interest in the confidentiality of such communications finds expression in the doctrine of legal professional privilege.
6.2The confidentiality of communications between lawyers and their clients is recognised by human rights law not only as a part of the right to respect for private life and correspondence in Article 8 ECHR,46 but as an aspect of the fundamental rights of access to court and to a fair hearing before such a court.47 The privilege is that of the client but attaches to communications to and from both client and lawyer. In order for those rights to be practical and effective, a client has a right to private communications with their lawyer.
6.3The need for special safeguards against unwarranted breaches of professional confidence between lawyers and their clients has been recognised in the case-law of the European Court of Human Rights. The tapping of a law firm’s telephones by the Swiss authorities, for example, was held not to be “in accordance with the law” because the Swiss law failed to distinguish between communications that would attract privilege and those that would not.48 In another case, the provision in the French law imposing a duty to respect the confidentiality of relations between an accused or suspect was regarded by the Court as valuable safeguard.49 In 2009 the House of Lords held that it was lawful in some circumstances, and where authorised expressly by statute, to listen in to confidential consultations held at a police station between lawyers and their clients, but that the safeguards set out in RIPA and the Code of Practice for Surveillance provided insufficient protection in a case where privileged communications would be intercepted.50
6.4The Joint Committee on the Draft Bill was concerned by the lack of provision about legal professional privilege on the face of the Bill, rather than in Codes of Practice, and recommended that the Bill should contain provision for the protection of legal professional privilege in relation to all categories of acquisition and interference addressed in the Bill.51 The Government responded to this recommendation by including additional safeguards for items subject to legal privilege on the face of the Bill.52
6.5Michael Drury, in his supplementary written evidence, welcomed these protections on the face of the Bill, while regarding safeguards in the Codes of Practice as being equally effective, but advocated a consistent approach for all categories of sensitive information throughout the Bill and across all the different categories. He suggested that the principles of sensitivity be included in the Bill itself and the detail of the safeguards in the Codes.53
6.6We welcome the Government’s positive response to pre-legislative scrutiny of the draft Bill by including specific provision about legal professional privilege on the face of the Bill. We accept that, for the purposes of human rights law, the protection of legal professional privilege is not an absolute, but can be overridden by sufficiently weighty public interest considerations, provided there are adequate safeguards against abuse. However, we query whether the safeguards for lawyer-client confidentiality in the Bill are as robust as they should be.
6.7In particular, we do not see the need for a power to target lawyer-client communications when communications which further a criminal purpose are not covered by legal privilege (the so-called “iniquity exception”).54
6.8Nor do we consider that the Bill contains a sufficiently strong safeguard for legally privileged items which are likely to be included in intercepted communications, as it does not contain a threshold test which must be satisfied before a warrant for such interception can be issued. In our view, the “exceptional and compelling circumstances” test should apply to such a decision, reflecting the strong presumption against interfering with confidential communications between lawyer and client.
6.9We recommend that the power to target confidential communications between lawyers and clients be removed from the Bill because it is unnecessary in light of the iniquity exception: communications between lawyer and client which further a criminal purpose are not legally privileged.
6.10We further recommend that a warrant to intercept or examine communications which are likely to include items subject to legal professional privilege should only be issued if the person to whom the application for the warrant is made considers that there are exceptional and compelling circumstances that make it necessary to authorise the interception or examination. The following suggested amendments would give effect to these Recommendations:
Clause 25
Page 19, line 16, leave out subsections (1) to (3)
This amendment removes the power to apply for a warrant the purpose of which is to authorise the interception, or selection for examination, of items subject to legal privilege.
Page 19, line 44, leave out subsection (4)(c)
Page 20, line 7, in subsection (6) after ‘considers’ insert
‘(a) that there are exceptional and compelling circumstances that make it necessary to authorise the interception, or (in the case of a targeted examination warrant) the selection for examination, of items subject to legal privilege, and (b)’
These amendments introduce a threshold test for the interception or examination of communications likely to include items subject to legal privilege, reflecting the strong presumption against interference with lawyer-client confidentiality.
6.11Equivalent amendments should also be made to clause 100.
46 See for example, Niemietz v Germany in which the European Court of Human Rights held that special procedural safeguards are necessary where a search warrant is executed at a lawyer’s office.
47 European Convention on Human Rights, Article 6(1)
48 Kopp v Switzerland, ECHR 25 Mar 1998
49 Kruslin v France, ECHR 24 Apr 1990
50 McE v Prison Service of Northern Ireland [2009] UKHL 15
51 Joint Committee on the Draft Investigatory Powers Bill, Session 2015–16, Draft Investigatory Powers Bill, HL Paper 93, HC 651, paras 534-537 and recommendation 46
52 See for example, Investigatory Powers Bill, Clauses 25 and 100
54 The definition section in the Bill (s. 225) preserves the so-called “iniquity exception” by adopting the provision in PACE 1984 s.10 according to which ‘items held with the intention of furthering a criminal purpose are not items subject to legal privilege.’
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1 June 2016