Tim Musson: Communications come under intense scrutiny

The Bill would allow phone and internet companies to retain individual customer records for a year. Picture: Contributed

The Bill would allow phone and internet companies to retain individual customer records for a year. Picture: Contributed

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NEW and somewhat worrying legislation is in the pipeline, fears the Law Society of Scotland, writes Tim Musson

Good communication between solicitors and their clients is essential. Key to that is building trust to ensure the client can say anything that might be relevant to their case, whether civil or criminal, secure in the knowledge that it is confidential.

However, the Law Society of Scotland fears that UK Government proposals for new legislation would allow confidential communications with clients to be intercepted.

We, alongside others including the Law Society of England and Wales, have some serious concerns about the consequences of the Draft Investigatory Powers Bill – referred to as the ‘snooping’ Bill – for legal professional privilege, which currently safeguards oral and written communications between lawyers and clients.

The Bill would allow phone and internet companies to retain individual customer records for a year to allow police and security services to access them. It also outlines powers that authorities would have to be able to access phones and computers.

The UK Government has said technologies that cross communications platforms and international borders increasingly allow those who would do us harm the opportunity to evade detection and that the use of investigatory powers is vital to locate missing people, place a suspect at the scene of a crime or identify who was in contact with whom. The proposals have been drafted to provide for powers to intercept communications, acquire communications data and interfere with equipment which are essential to tackle child sexual exploitation, dismantle serious crime cartels, take drugs and guns off our streets and prevent terrorist attacks. 

Of course, ensuring our security as a nation and as individuals is critical. However, legal professional privilege (LPP) is key to the rule of law and essential to the administration of justice as it permits a lawyer and client to exchange information without fear of it becoming known to a third party (without the clear permission of the client) unless the communications have any criminal purpose in which case the protection does not apply under existing powers.

Responding to the UK Parliament’s Joint Select Committee call for written evidence recently, we emphasised that we think it is essential to protect LPP within the proposed legislation instead of through a code of practice which has been included in the Bill in an effort to mitigate against any possible abuse of the powers where ‘sensitive professions’, which include lawyers, are concerned.

All other legislation relating to investigatory powers expressly provides for LPP within the provisions of the relevant act and we don’t believe clear evidence or reasoning has been provided to demonstrate or explain the absence of the protection of LPP within the Bill.

A code of practice does not have the force of law, giving the possibility of abuse and we strongly believe deliberate targeting of communications covered by LPP needs to be declared unlawful.

The Bill also places a requirement on communications service providers to retain communications data. Given the number of data breaches suffered by these organisations and that cyber criminals would view them as a specific target, we think a new state agency should have responsibility for secure storage of such data.

In addition, while approval of an investigatory powers commissioner or any other judicial commissioner would be needed to access content of any communications, we are concerned that a Secretary of State can modify, by regulations, the functions of a commissioner with no obligation to consult.

In attempting to secure our safety as citizens, it is vital that we do not lose the legal protection we have for confidentiality between lawyers and their clients and we shall continue to monitor this draft bill.

• Tim Musson is convener of the Law Society of Scotland privacy law committee: www.lawscot.org.uk

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