A Backdoor to Legal Professional Privilege?
By Rosalee Dorfman
Published on August 10, 2016
A special thanks to William Rees for his comments on earlier drafts.
In 2013 the Edward Snowden leaks confirmed what many had long suspected – governmental mass surveillance is ubiquitous in the UK. The Investigatory Powers Bill (‘the Bill’), currently in its second reading in the House of Lords, attempts to legalise, rather than roll back, the state spying Snowden uncovered. One of the many erosions of privacy in the Bill is the creation of a governmental backdoor to information covered by legal professional privilege (‘LPP’). I argue for a complete ban on targeting privileged information by examining the importance of LPP and the failure of the Bill to protect client privacy.
Government access to materials protected by LPP not only breaches confidentiality and the right to respect for privacy in ECHR Article 8, but also poses a risk of the information passing to parties investigating or prosecuting the client, thereby infringing the right to a fair trial in Article 6. Lawyer-client confidentiality underpins the rule of law, as advocated by the courts. In Belhadj v the Security Service the Investigatory Powers Tribunal decided that GCHQ’s obtaining and handling of documents subject to LPP was in breach of Article 8. The claimant had brought a civil action against the state, and at the same time was under surveillance. In Belhadj the fear of the government abusing its powers crystallised.
Instead of safeguarding legal privilege, the Bill departs from the reasoning in Belhadj and justifies targeting LPP communications via interception, examination and equipment interference (hacking) warrants. The proposed test for issuing a warrant targeting LPP is ‘exceptional and compelling circumstances that make it necessary’ to prevent and detect serious crime for national security (Clause 27(1) and Clause 106(1)).
The test fails to acknowledge that LPP carries an ‘iniquity exception’ – communication intended to further a criminal purpose are not subject to privilege (section 10(2) PACE 1984). The state could intercept such exempted communications. Thus targeting LPP material is both dangerous and redundant. Two examples demonstrate this point. First, a client is coordinating the activities of extremist associates by means of communicating with his lawyer. This would fall within the iniquity exception, as the communications are made to commit crime. Second, a lawyer is corrupt or complicit in criminal activity (Anderson, 2015 para 3.24). The iniquity exception would apply and the communications would not be privileged.
There is no need to target privileged communications. The inequity exception already provides a check on abuse of the lawyer-client relationship and protects the public from risks of national security and serious crime (Bar Council et al, 2015; 2016). Without LPP, clients would be deterred from speaking openly with their lawyers. This trust of privacy is the pre-requisite foundation to a fair trial and the rule of law (Lord Pannick, 2016).
In conclusion, the Bill is an attempt to legalise the illegal, with an emblematic example being the creation of a governmental backdoor to LPP. Without a ban on deliberate targeting of LPP materials, the Bill furthers the erosion of privacy and rule of law exposed by the Snowden leaks.
Rosalee Dorfman is a current County Court Advocate and is a future Judicial Assistant at the Court of Appeal. You can follow her legal musings @RosaleeDorfman.
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