THE BLOG

The Investigatory Powers Act, And Why Confidentiality Matters

02/12/2016 12:23
ASSOCIATED PRESS

Surveillance laws exist in an uneasy tension between the state's interest in providing us security and the personal freedoms we all enjoy. On either side of that tension, the stakes could not be higher. It is no surprise that updating surveillance powers for changing technology, as has just occurred with the passage of the Investigatory Powers Bill, has been a fraught process, and not just for those interested in technology, the security of the state and civil liberties. We collectively have had to decide when we are happy to set aside our individual interests for what would - at times contentiously - be called the "greater good".

For professions that routinely deal with sensitive information relating to other people, such as doctors, lawyers, politicians and journalists, questions of state surveillance not only affect us personally, but potentially threaten the duties, imperatives and obligations we have, and vital public interests that we serve. We have to consider not only our own individual interests, but the individual interests of others, and the greater good in us protecting those interests.

Among the legal profession this tension has been in sharp relief over the place of Legal Professional Privilege (LPP). LPP is a cornerstone of the justice system, owned by our clients, which enables them to have open and transparent conversations with their lawyer without the fear these will be shared with someone else. It is at the heart of our relationship with our clients, and essential in ensuring the integrity of the justice system.

In this context it was always going to be a challenge to convince the state to curtail surveillance powers to protect LPP. It is hard to build public passion for the protection of legal concepts with the spectre of terrorism and organised crime hanging over us all.

Yet when client asks for advice from a solicitor, and needs to divulge details of their personal or professional life, it cannot be restrained by a fear that the State might be listening in. Even the most law-abiding of us have parts of our lives that we do not want aired in public - a financial mishap, a troubled family relationship, workplace mistreatment you could no longer tolerate. These intimate details are only the part and parcel of a normal life, but if someone does not feel they can be open and transparent with their lawyer, the lawyer cannot properly advise them on the law, with potentially disastrous consequences.

This is why the Law Society of England and Wales was so deeply concerned when the Investigatory Powers Bill was first introduced without protections for legally privileged material. The final Bill that has just received Royal Assent is, in our view, far from perfect. The ability to intercept privileged communications is too wide and intrusive, and needlessly so. However, following the efforts we and others in the legal profession made, the Government has responded by making considerable improvements from where the Bill began. Proper processes to evaluate and protect legally privileged material now exist, even if the standard is not as rigorous as we would have made it.

On this issue it is not the Bill that the solicitor profession would have written, but it is a significant improvement on where we began. In the ever-evolving national and international debate on surveillance, privacy, and the powers of the State, the Law Society will continue to advocate passionately to ensure everyone retains the right to speak in safety with their lawyer.

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