Influencing Technology-related Legislation: the Investigatory Powers Act 2016 and Legal Professional Privilege

July 25, 2017


The Investigatory Powers Act 2016 (IPA), like its
predecessor the Regulation of Investigatory Powers Act 2000 (RIPA), is a
complex piece of legislation, the full ramifications of which will undoubtedly
take time to unfold. Law at the intersection of social policy and technology
often generates hotly contested ethical and practical debates and the IPA in
its passage through parliament was no exception. How legally privileged
communications should be treated was one of these debates and one that may
offer some wider lessons for technology policy.

When an overhaul of UK surveillance legislation was first
mooted, the Law Society had been engaged for over a decade in public policy
work associated with the rise of a surveillance society and the human rights
implications for solicitors and their clients. The absence of explicit
legislative protection from surveillance for legally privileged communications
in RIPA had been of particular concern. We therefore welcomed the prospect of

Reform of investigatory powers took place against a backdrop
of widespread criticism of the UK’s existing surveillance legislation, rapid technological
change and a number of legal challenges and high-profile reviews. Amongst the
latter, David Anderson QC’s report into investigatory powers, A Question of
Trust, stood out in describing RIPA as ‘obscure since its inception’ and ‘patched
up so many times as to make it incomprehensible to all but a tiny band of
initiates’. His conclusion was that ‘this state of affairs is undemocratic,
unnecessary and – in the long run – intolerable’. One of the areas we
anticipated that new surveillance legislation should address was the
interception of privileged communications.

Most practitioners will be familiar with legal professional
privilege (LPP) as a longstanding common law right. Originally considered a
procedural right providing immunity from disclosure, it is now also regarded as
a substantive right. It has some considerable complexities (one of the reasons
the Law Society recently published a practice note on the topic) but its essence
was perhaps best captured by Lord Phillips when he described it as ‘the
fundamental requirement that a man should be able to speak freely and frankly
to his lawyer’. There is one major qualification to this: communications made
with the intention of furthering a criminal purpose are not privileged (the
‘iniquity exception’).

RIPA was silent on the matter of legally privileged
communications. The original code of practice on interception of communications
made under RIPA only required an assessment of how likely it was that LPP
material would be intercepted. The relevant Secretary of State (in practice the
Home Secretary) had to take this assessment into account in deciding whether or
not it was necessary and proportionate to authorise an interception warrant.
The implication was that it might be less proportionate to intercept legally
privileged communications than to intercept other types of communication.

The question of the legality of intercepting legally
privileged communications only came to the House of Lords in re McE (Northern
[2009] UKHL 15
. By a majority, their view was that RIPA’s silence
on LPP meant that – provided all other requisite conditions were met – Parliament
had intended that legally privileged communications could be targeted. Amongst
many issues raised in the judgments, two points made by Lord Neuberger stood out
(and had relevance for subsequent discussions around the IPA). First, he said
that ‘the authorities cannot know if the privilege and right to privacy are
being abused and that the iniquity exception applies, until the interception or
listening in has occurred and its results examined’. He also regarded it as ‘self-evident
that knowing that a consultation or communication may be the subject of
surveillance could have a chilling effect on the openness which should govern
communications between lawyer and client’.

Before moving on from RIPA to explore the treatment of
privileged communications under the IPA, one other piece of the jigsaw needs to
be mentioned. In January 2016, a revised interception code of practice under
RIPA was published. This acknowledged that interception privileged
communications engaged Articles 6 (fair trial) and 8 (private life) of the
European Convention on Human Rights (ECHR). It directed that the Secretary of
State should issue such warrants only in ‘exceptional and compelling
circumstances’ in the event of threats to life, limb or national security where
interception was reasonably regarded as likely to yield intelligence to counter
the threat.

The Investigatory Powers Bill

The Draft Investigatory Powers Bill was published for
pre-legislative scrutiny and public consultation in November 2015. The main
aims of the Bill were to:

  • consolidate and clarify existing investigatory powers
    legislation including RIPA and provisions in the Wireless Telegraphy Act 2006,
    the Telecommunications Act 1984 and the Intelligence Services Act 1994;
  • overhaul authorisation and oversight arrangements for
    exercising investigatory powers by introducing ‘double-lock’ arrangements for
    interception warrants whereby, following Secretary of State authorisation, a
    judge’s approval was required and a new Investigatory Powers Commissioner (IPC)
    would exercise oversight;
  • extend existing data retention arrangements to include
    retention of internet connection records (ICRs).

However, like RIPA, the Bill was silent on LPP and this was
a matter of concern that we felt needed to be addressed on behalf of legal
advisers and, above all, their clients.

We started by providing written evidence to the Joint
Committee on the Draft Investigatory Powers Bill. Colin Passmore, Senior
Partner of Simmons & Simmons and author of Passmore on Privilege, argued
persuasively that privilege was such a fundamental and unique right that it
must be explicitly protected. The Joint Committee accepted this argument and
recommended that the Government should work with us and others to ensure that
LPP received protection on the face of the legislation.

When the Bill itself was introduced to Parliament on 1 March
2016 it contained a provision that LPP material could only be targeted for
interception in ‘exceptional and compelling circumstances’ – the same formula
that had been adopted in the revised code of practice under RIPA.

Protection for LPP in the Bill could be regarded as
progress. But it also raised a conundrum because it explicitly allowed
privileged material to be targeted. In this sense, the Investigatory Powers Bill
went – and goes – further than RIPA in making inroads into LPP.

Our next move was to establish a coalition of the three Law
Societies (for England and Wales, Scotland, and Northern Ireland), the Bar
Council, Faculty of Advocates, the Bar of Northern Ireland, the Chartered
Institute of Legal Executives, Justice, and Liberty. Together we identified
seven areas in which the Bill had failed to provide adequate protection for
legally privileged material, including:

  • persons outside the UK
  • modifications to warrants and
  • communications data (which we argued could be as intrusive
    as interception of content).

However, our core argument was that privileged material
should never be targeted and should be destroyed if inadvertently obtained.
This was the focus for our efforts as we worked with supportive peers to explore
the scope for further amendments to the Bill in the House of Lords.

The outcome and wider lessons

The Government didn’t ultimately accept our core argument
that privileged material should never be targeted and should be destroyed if it
were inadvertently obtained.

From our discussions with officials and ministers, it was
clear from an early stage that the Government would not be willing to accept
such strong protection for LPP. They wanted to be able to retain the power to
target privileged material to gather general intelligence that might avert
terrorist activity.

The final position was that, where the general conditions
for intercepting a communication are met, legally privileged communications can
be targeted only if exceptional and compelling circumstances make it necessary.
This test can only be satisfied where the public interest in obtaining
information outweighs public interest in confidentiality. There must be no
other means by which the information may reasonably be obtained and there must
be a threat to life, limb or national security.

The intersection of the law, technology and policy is a
difficult territory to navigate, and still relatively unexplored. Public policy
in this area requires a unique understanding of technological and legal issues.
Policy makers and parliamentarians are faced with the challenge of understanding
both law and technology in an unprecedented way.

The legal community’s efforts to influence the passage of
the IPA benefited from the opportunity to work collaboratively with all the
professional bodies and civil liberties groups involved and draw on a range of
expertise. Cross-disciplinary expertise is one reason why the work of bodies
like the SCL is important and should be widely encouraged.

Dr Carolina Gasparoli is a public policy adviser at the Law

Tim Hill is technology policy adviser at the Law Society