Think your emails to your lawyer are private? Think again.

Last week the Public Bill Committee reviewing the UK's Investigatory Powers Bill (a.k.a. the Snoopers’ Charter) concluded its work and delivered an amended Bill to MPs. The legal profession was concerned that early drafts of the Bill did not do enough to protect legal professional privilege (LPP). Has anything changed in the latest draft?

The Investigatory Powers Bill

The Bill is described as one of the most important of this Parliament. It will overhaul the framework governing the use of surveillance by UK intelligence agencies and law enforcement bodies (including the Serious Fraud Office (SFO), Financial Conduct Authority and Competition and Markets Authority) to obtain the content of communications and communications data. This potentially includes confidential lawyer-client communications, which are supposed to be protected by LPP.

What’s the problem?

Clients already frequently grapple with LLP issues in relation to investigations. A lack of protection for LPP can cause miscarriages of justice, giving investigatory authorities an unfair insight into the strengths and weaknesses of the subject of enforcement’s case, and making clients reluctant to explain their situation fully to their lawyers. The main existing surveillance legislation, the Regulation of Investigatory Powers Act 2000 (known as 'RIPA'), does not provide protection for LPP.

The legal profession hoped the new Bill would provide an opportunity for Parliament to address this. But when the Government released the first draft, the protections fell short again. The concept of LPP appeared in codes of practice that would not have the force of law, rather than in the Bill itself. The Bar Council and the Law Society presented a joint report to Parliament raising their concerns about this on behalf of the legal profession.

The Bar Council and Law Society intervention to protect LPP

The report argued that:

• the deliberate targeting of legally privileged information should be unlawful;
• judicial authorisation should be required for covert surveillance activity which might uncover legally privileged communications; and
• service providers should not be obliged to retain lawyer-client communications, except where authorities could point to a reasonably held suspicion that the communications were made with the intention of furthering a criminal purpose.

Following the joint report a new draft of the Bill was published which took most of the Bar Council’s and Law Society’s recommendations on board. Among the new statutory protections for LPP was a requirement for judicial authorisation to intercept communications potentially subject to LPP. Interception could only be authorised where there were 'exceptional and compelling circumstances that make it necessary'.

The Committee Stage

The Bill has since been considered by a Public Bill Committee which released proposed amendments mid-way through its review taking the protections for LPP further still. The purpose of those amendments was clear from an explanatory note stating that they were intended to “bring [the Bill] into line with the spirit of existing case-law, the common law and PACE”.

However, none of the proposals on LPP appear to have made their way into the amended Bill. When the latest draft was delivered to the House last week, there were no changes to the sections covering LPP.

What next?

Whatever the final Bill looks like, LPP issues will undoubtedly continue to rear their heads in investigations. Law enforcement agencies will scrutinise assertions of LPP over communications and there will be disputes where clients take a different view as to what should be covered by LPP. The SFO's General Counsel said in a recent speech that the SFO 'will view as uncooperative false or exaggerated claims of privilege, and we are prepared to litigate over them: to do otherwise would be to fail in our duty to investigate crime'.

The Bill will now be considered by MPs at Report Stage and in a Third Reading, and A&O will continue to watch its progress with interest.