Legal professional privilege (LPP) and confidential journalists’ communications should be given greater protection from state surveillance, three QCs write in NLJ this week.
Such protection is of “fundamental importance to the administration of justice” even in a time of heightened concern about terrorist activity, say Nicholas Griffin QC and Robert O’Sullivan QC of 5 Paper Buildings, and Gordon Nardell QC of 39 Essex Street.
The state has “a formidable arsenal of cover surveillance powers”, mainly in the Regulation of Investigative Powers Act 2000 (RIPA 2000) and five associated Codes of Practice, they argue. For example, under Pt 1 of the Act, certain public authorities including the Metropolitan Police and HM Revenue and Customs can, with a warrant from the home secretary, intercept communications. Even more public authorities have powers under Pt 2 to covertly listen, monitor and record the movements and communications of others, for example, by bugging a person’s home or vehicle. There is no direct judicial oversight of Pt 2 surveillance.
RIPA does not mention LPP, although a recently amended Code of Practice now approves the intentional breach of it in “exceptional and compelling circumstances”—not only where national security is threatened but where there is a “threat to life or limb”. Covert surveillance of a meeting between lawyer and client may be lawful, as stated by the House of Lords in McE v Prison Service of Northern Ireland [2009] AC 908.
The QCs also express concern that social media and cloud computing have blurred the distinction between “content” and “data”, leading to “blanket” data retention.
“Empowering the authorities secretly to override LPP is simply incompatible with the rule of law,” the QCs write.
Noting the potential for abuse of RIPA, for example, by the police accessing journalists’ mobile phone records, they conclude there is “an irresistible case for amending RIPA so that LPP and other vital relationships of confidence are properly protected by primary legislation”.
Last week, the charity Reprieve released government e-mails accepting that its interception of communications between lawyer and client breached human rights legislation, in submissions to the Investigatory Powers Tribunal hearing of the Belhaj case.
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