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Lawyers’ professional privilege under threat from Snoopers’ Charter

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And Theresa May fails to reassure the legal profession

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Barristers have come out fighting against the controversial Snoopers’ Charter, slamming the proposed surveillance of lawyer-client communication.

Legal professional privilege protects communication between lawyers and their clients, meaning that their messages, letters and other communications cannot be disclosed without the client’s permission. The Investigatory Powers Bill — termed the ‘Snoopers’ Charter’ — could well change all that.

This proposed law is a contentious anti-terrorism measure that will give the security and intelligence agencies extensive powers to access communications data, such as phone records and browsing history.

Well on its way to reaching the statute book, the Bill has breezed through two readings in parliament, yet has been resisted at every stage by huge numbers of legal commentators. Just this week, eminent senior lawyers signed an open letter describing the Bill as “unnecessary” and “not fit for purpose”.

But, for the Bar Council, the most unnerving part of the law in the making is its potential effect on legal professional privilege. Though Theresa May has assured jittery lawyers that legal privilege will be protected, they simply aren’t convinced. Peter Carter QC explained:

Disappointingly the Bill… creates a legislative framework that places surveillance of legally privileged communications entirely within the law which undermines the fundamental constitutional rights of the client.

He continued:

As drafted, the Investigatory Powers Bill ignores the clear distinction between privileged and non-privileged communications and gives authorities the power to intercept sensitive, highly confidential communications that have nothing to do with criminality, national security or threats to individuals.

Chantal-Aimée Doerries QC, chair of the bar, added:

This aspect of the Bill raises important issues about the rule of law.

More widely, concerns have been raised that the Bill encroaches too heavily on the right to privacy — explicitly protected by Article 8 of the European Convention on Human Rights. Amnesty International has argued that the Bill is not, at least in its current form, human rights compliant. The United Nations special rapporteur on privacy said that the proposed law means the UK is setting a bad example to the rest of the world, while others are gravely concerned that the Bill is being rushed through parliament.

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