29 June 2016 – By Michael Cross
Distinguished legal figures on the red benches lined up to condemn threats to professional privilege posed by the government’s investigatory powers bill as it passed its second reading in the House of Lords this week.
The controversial measure clarifies the law on the interception of communications and introduces new powers to require the retention of internet connection records, earning it the nickname the ‘snoopers’ charter’.
During the debate, a succession of peers echoed concerns raised by the Law Society and other professional bodies about the lack of statutory protection for communications between lawyers and their clients.
Cross-bencher Lord Pannick (David Pannick QC) said that the bill provided only ‘piecemeal’ protection for legal professional privilege.
He accused the government of wanting to allow the authorities to listen in to legal advice and to use privileged information where there is no reason to think that the ‘iniquity exception’ applies.
‘To allow the authorities access to genuinely privileged information would inevitably mean that clients could no longer be guaranteed confidentiality by their lawyers. This would inevitably deter clients from speaking frankly to their lawyers and therefore undermine the rule of law.
He called for protection to be written on the face of the bill and for the test for interception of privileged communications to be ‘a high one’ involving ‘exceptional and compelling circumstances’.
LibDem peer Lord Lester (Anthony Lester QC) (pictured) said that where compelling evidence suggests that privilege is being abused, a judicial commissioner should be required to authorise covert information-gathering. ‘There should be no grant or modification of a warrant likely to capture privileged communication unless there is prior judicial approval.’
He noted that such protection is already written into the bill in respect of journalists’ sources.
Introducing the debate, Earl Howe, Lords defence minister, said that the proposed measure ‘does not give free rein to public bodies to intrude upon the privacy of citizens without proper justification and authorisation.
‘In fact, it strengthens the checks and balances applied, adds safeguards, bolsters oversight and sets out the privacy considerations which must be applied to any application to use the power.’
The bill now goes on to the Lords committee stage.
Posted by: Ian (D. Withers)