Maria Theodoulou, Partner at Stokoe Partnership Solicitors, examines the proposed Investigatory Powers Bill and its impact on legal professional privilege in Solicitors Journal.

Maria’s article has been published in Solicitors Journal, 11th August 2016. Read the article here.

The Snoopers’ Charter: An affront to liberty and justice

The government has failed to consider the dangers of the Investigatory Powers Bill, such as the lack of safeguards for the fundamental principle of legal professional privilege, argues Maria Theodoulou.

The Investigatory Powers Bill, commonly referred to as the ‘Snoopers’ Charter’, has not been without controversy since its announcement in November 2015. The debate has generally focused on individual liberty as a cornerstone of liberal democracy, but specific issues have been raised by various groups, including journalists and lawyers. It is generally agreed that in order to protect both liberty and freedom, the UK should avoid following the route of NSA-style bulk surveillance. This follows from the principle of protection from intrusion by the state, where data being collected en masse would only occur in exceptional circumstances, rather than as the default.

Initial input from the parliamentary Intelligence and Security Committee (ISC) in February criticised the Bill heavily in this regard. The ISC report argued that ‘privacy protections should form the backbone of the legislation’ and that terrorist attacks ‘cannot be used as an excuse to ignore such important underlying principles or unnecessarily override them’. However, the government has continued to ride roughshod over individual privacy, preferring instead to maintain that national security is more important. Without appropriate safeguards in place, how is the public to know that the state surveillance the Bill threatens to implement truly is in the interests of national security?

The ISC report went on to discuss class authorisations, which would see agencies granted the right to obtain an unlimited number of datasets within a specific category after seeking a single approval. Given the incredibly wide amount of data that this would give an agency access to, the ISC was correct in calling for these to be kept to ‘an absolute minimum and subject to greater safeguards’. The most recent version of the Bill, presently in the House of Lords, retains class authorisations, with the secretary of state having sole say on the granting of these.

A recent ruling from the European Court of Justice stated that the retention of data from telephone calls and emails is only legal in situations where it is used to tackle serious crime. While this is a major victory for privacy campaigners in the short term, the result of June’s referendum on EU membership makes it likely that, in the longer term, the ruling will be a moot point in the UK. With Theresa May now prime minister, it is likely that legislation of this sort will resurface should this Bill fail to make it on to the statute books.

A further danger of the Bill was noted in a select committee response to the 2015 TalkTalk hacks. The huge pools of personal data that would be created by requests under this Bill would be highly vulnerable to any data breaches – something the committee noted must ‘be addressed urgently by the government’. The opposite appears to have happened, however, with Earl Howe, the government’s deputy leader in the House of Lords, arguing repeatedly in favour of backdoors being included in all devices with end-to-end encryption. While the government would use these to access data, there is a very real possibility that others could also utilise them to steal it.

Not only is the public threatened by infringements on their liberty, their legal rights are also threatened. A coalition of legal groups has stated repeatedly that legal professional privilege (LPP), which ensures the confidentiality of legal advice between lawyer and client, is threatened by this Bill. The Law Society has stated that LPP ‘plays a crucial role in ensuring the proper administration of our justice system’. The fact that there are no safeguards for such a fundamental principle serves to highlight the lack of consideration given to the dangers inherent in aspects of this Bill.

When data is collected in bulk, as advocated by the Bill, it is almost inevitable that some privileged information will be swept up in this. This has clear potential to influence investigations, giving agencies information they have no legal right to while the individual or corporation under investigation remains unaware of this.

As it stands, the Snoopers’ Charter is dangerously flawed, undermining both liberty and central tenants of our justice system. It cannot remain in its current format and the government must recognise that careful amendments are required to protect not just individuals but the very foundations of justice in this country.