Rush to pass Investigatory Powers Bill threatens judiciary and press freedoms

Posted On: 
13th April 2016

‘Speak in Safety,’ a parliamentary event held on Monday evening, challenged MPs to scrutinise the highly controversial Investigatory Powers Bill, before it is rushed into law.

Pressure groups have roundly denounced the ‘disgraceful’ timetable for the Investigatory Power Bill (IPB) in which they argued the most ‘fundamental constitutional rights’ were being dismantled.

Legal experts called for greater protection in the Bill for Legal Professional Privilege - the constitutional right for privacy in communications between lawyer and client - alongside representatives of the National Union of Journalists (NUJ) who claimed that the draft in its current form would sound the ‘death knell’ for whistleblowing and investigative journalism.

Legal Professional Privilege (LPP), the principle right to consult with a legal representative in confidence, has existed in Common Law for over 400 years, and is currently protected in the European Convention on Human Rights.

But as Chantal-Aimée Doerries QC, Chair of the Bar Council explained, this cornerstone of individual freedom will no longer be protected if the IPB is not amended:

“One of the essential rights of a democracy is that a citizen can consult with a lawyer. It is not the right of lawyers, but the privilege of the client.

“Those of us lawyers here tonight are not pleading for ourselves, but for the citizens of this state, both in their legal disputes with the state, and more broadly.”

LPP is vital to the administration of justice in two senses. Firstly, in what the judiciary refers to as ‘the chilling effect’, if clients cannot be sure that conversations with their legal representatives are private, they may edit or censor the information they share, denying them their constitutional right to the best defence.

Secondly, if privileged information is seen by Government lawyers who are defending or prosecuting on behalf of the state, the integrity of a fair trial is lost.

“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 clients, and this approach has a statutory basis in the Police and Criminal Evidence Act (PACE) 1984,” Doerries added.

“But RIPA and subsequent House of Lords rulings changed this. RIPA 2000 made no exception for the surveillance of legally privileged communications. Indeed, and perhaps surprisingly, the Act and the Bill which led to it made no reference to LPP.”

Robert Bourns, VP of The Law Society added that the Bill makes no provision for the protection of communications data, allowing authorities to piece together information otherwise protected by the LLP.

“In this day and age, information that can be intercepted will produce information as to location, timing, and details about the sender and recipient, even if the content may be protected,” he said.

Also under threat is the right to privacy for whistleblowers in contact with journalists or parliamentarians. Michelle Stanistreet, NUJ General Secretary explained that under PACE journalists would be notified if authorities requested information on whistleblowers, affording them the opportunity to challenge such applications and defend their sources. However RIPA included no such safeguards, and therefore increases the ‘ability for misuse’ by police and other bodies:

“How can a whistleblower ever have the confidence to come forward and speak out if they can’t be sure that contact is indeed private?” she said. “This Bill will be the death knell for whistleblowing in the country, and to investigative journalism.”

She also warned that surveillance powers within the Investigatory Powers Bill should not be justified on the basis of ‘weasel words’ such as the ‘economic wellbeing’ and ‘financial stability’, as this would give authorities a legal framework to spy on trade unions and their members.

All parties conceded that security services should have the authority to access the information they need to prevent crime. But as Bourns explained, effective provision already exists in PACE under the Crime-Fraud Exception, that has been “well established and well recognised.”

However, the current Bill, Doerries argued, does not define the threshold for intercepting privileged communications. Instead one must refer to the non-binding ‘Codes of Practice,’ where overriding LPP is justified when there is ‘a threat to life or limb’ or ‘in the interest of national security.’

“I would suggest this is highly problematic,” she said. “Firstly the threshold is too low, the ‘threat to life or limb’ could well mean a non-criminal act, or no more than the risk of personal injury; and the expression ‘in the interests of national security’ is also too vague.”

“Secondly, defining the threshold in the Codes of Practice, and not in the Act, allows future change, quickly and quietly, by statutory instrument, and avoiding the scrutiny of parliament that I would suggest is so important.”

The Bar Council offers a number of amendments to be tabled in this regard, to ensure LPP is protected while giving authorities a clearly defined threshold for intercepting privileged material when necessary. It also suggests protecting communications data in the same way, and for these protections to be included in the face of the Bill, not merely in the Codes of Practice.

“We would suggest detailed focus and scrutiny of the Bill is what is now required, despite the tight timetable,” Doerries concluded. “The Bar Council, together with the Law Society and the NUJ are working together to protect what we would describe as some of the most fundamental constitutional rights enjoyed by the citizens of this country.”