Last week the Bar Council issued guidance to its members in relation to legal privilege and the Investigatory Powers Bill, which is to be debated in Parliament on 15 March 2016.
Legal privilege is the statutory protection afforded to all legal communications between a client and a lawyer which ensures they are kept confidential. It is not only a cornerstone of our legal system but a vital legal principle which serves to put clients at ease when communicating sensitive information to their lawyer, information which is often vital to the case in question, also forming an important part of the lawyer's armoury.
Controversially, The Investigatory Powers Bill (a.k.a the 'Snooper's Charter') will allow the security services to access personal communications data in the interests of national security. Internet service providers and phone companies will be legally obliged to keep all communications data on their customers for 1 year before deletion.
The Bar Council are concerned that legally privileged communications will not be adequately protected under the new Bill. They acknowledge that legally privileged communications should be accessible if in the interests of national security, for example to reveal the details of an imminent terror attack. However, as currently drafted they claim that the Government have not made a distinction between privileged and non-privileged communications despite appeals from the industry.
The Chairman of the Bar Council, Chantal-Aimee Doerries, has even petitioned the Government via an open letter in The Telegraph (with over 100 high-brow signatories) to re-consider the current draft and delay the Parliamentary debate in order to re-draft provisions such as those concerning privilege.
Technology experts at The Bar Council have also raised concerns that the new Bill, in conjunction with US surveillance laws such as the Patriot Act and Freedom Act, will allow US security services to access privileged information that is stored in a 'cloud' which servers are on US territory. The Bar Council has expressed concern about the knock-on effect this might have on companies doing business in the US and taking English of US legal advice.
Further pressure was exerted upon the Government this week when the UN's privacy chief, Joe Cannataci, claimed in a report that the Bill 'runs counter' to recent privacy judgments in Europe and undermines the right to privacy. He has also petitioned the Government to further scrutinise the Bill 'to identify proportionate measures which enhance security without being overly privacy-intrusive'.
Recent reports have stated that Home Secretary Teresa May has included various changes to the Bill in light of recent concerns, however, clearly some parties feel the government have not gone far enough.
The risk to legal privilege is certainly an issue that the legal industry as a whole should rally against. Without the safe harbour of legal privilege, clients will be reluctant to provide their lawyers with oftentimes crucial information, without which the risk of losing litigation is heightened or negotiating leverage lessened. A weakening of legal privilege may even usher in a future where an X-Files style exchange of brown paper envelopes on park benches between clients and lawyers becomes the norm rather than more modern preferred modes of data exchange! Ultimately, the bedrock of solicitor/client privilege must be preserved and no doubt the Bill be will be beefed up accordingly.
