Carolina Gasparoli and Tim Hill recount the history of the battle to gain greater protection for LPP
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 change.
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 Ireland)  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:
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:
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 Society
Tim Hill is technology policy adviser at the Law Society