UK: Committee calls for removal of lawyer-client spying clause from Snoopers’ Charter

In a new report, the UK Parliament’s Joint Committee on Human Rights has called for stronger safeguards governing lawyer-client confidentiality in the Snoopers’ Charter.

While welcoming a clearer legal basis for the Investigatory Powers Bill as well as well as Home Secretary Theresa May’s concessions, the committee still expressed reservations about the bill’s compatibility with human rights legislation.

It stated that robust safeguards are needed for lawyer-client confidentiality.

Preserving the “iniquity exception” to legal professional privilege – where communications concerned with furthering a criminal purpose are not legally privileged – makes it unnecessary for the bill to provide for targeting confidential communications between lawyers and clients.

As such, the committee recommended that those provisions be removed from the bill.

The committee also recommended strengthening the safeguard for legally privileged items which are likely to be included in intercepted communications, with the insertion of a threshold test reflecting the strong presumption against interference.

More generally, and based on the case law of the European Court of Human Rights, the committee did not consider the bulk powers in the bill to be inherently incompatible with the right to privacy (article 8): they are capable of being justified if they have a sufficiently clear legal basis, are shown to be necessary, and are proportionate in that they have adequate safeguards against arbitrary use.

On measures for spying on MPs, the committee stated it did not believe that consulting the Prime Minister before interference with MPs’ communications provideed an adequate safeguard: in addition the Speaker or Presiding Officer of the relevant legislature should be given sufficient notice of the decision to interfere with such communications to enable them, if they so wish, to be heard before the Judicial Commissioner. As well as the House of Commons, this includes the House of Lords, the devolved legislatures and the European Parliament.

While recognising the real difficulty of defining journalism in the digital age, the committee was concerned that safeguards for journalists’ sources (in the bill) are inferior to similar safeguards in other contexts: the bill should provide the same level of protection for sources as currently exists in relation to search and seizure under PACE 1984, including an on notice hearing before a Judicial Commissioner, unless that would prejudice the investigation.

JCHR chair Harriet Harman said: “The bill provides a clear and transparent basis for powers already in use by the security and intelligence services, but there need to be further safeguards.

“Protection for MP communications from unjustified interference is vital, as it is for confidential communications between lawyers and clients, and for journalists’ sources, the bill must provide tougher safeguards to ensure that the government cannot abuse its powers to undermine Parliament’s ability to hold the government to account.”