Caplen: people must be able to trust their lawyers
The Law Society and Bar Council have joined forces with the British Association of Social Workers and National Union of Journalists to form the ‘Professionals for Information Privacy Coalition’, and express their concern over the controls in place on how the government snoops on professionals.
They have come together in response to a Home Office consultation, Communications data codes of practice: acquisition, disclosure and retention, which looks at the codes running alongside the Regulation of Investigatory Powers Act (RIPA) and closes today.
Communications data is the ‘who, where, when and how’ of a communication but not its content, which the government says is “crucial” in fighting crime, protecting children and combating terrorism.
The Home Office said as well as introducing a new retention code, the consultation was updating the data acquisition code, last published in 2007. It proposed including a new provision that where there may be concerns relating to professions that handle confidential or privileged information, such as lawyers or journalists, law enforcement should give “additional consideration to the level of intrusion and must record such applications” to acquire data.
But in a joint statement, the four bodies said they were “united in our belief that the current system needs to be changed” in the light of a growing number of instances where data and surveillance powers have been “seriously and repeatedly overused”, including intelligence agencies spying on conversations between lawyers and their clients.
It continued: “The existing data and surveillance rules are complex and confusing and have been laid down in numerous, badly drafted pieces of legislation, codes and guidance. Too many laws have been rushed through parliament as emergency legislation – most recently the Data Retention and Investigatory Powers Act 2014.
“This has undermined parliamentary scrutiny and democratic debate. So we have come together to call for the existing problems to be addressed in the various reviews still underway.
“Our organisations agree that access to professional data should be protected in law and should be subject to independent, judicial oversight. Using codes of practice – such as the draft code under RIPA – undermines the rule of law.
“We are urging all parliamentarians and the government to support a new approach that includes bringing forward new primary legislation in order to clearly and transparently codify data and surveillance policy in the public interest.”
Bar Council chairman Alistair MacDonald QC said: “We cannot simply leave surveillance issues to senior officers of the police and the security services acting purportedly under mere codes of practice. What is surely needed more than ever before is a rigorous statutory framework under which surveillance is authorised and conducted.”
Law Society president Andrew Caplen added: “Legal advice oils the wheels of commerce and helps to protect the innocent in complex rule-based societies. The rule of law and the administration of justice are undermined if individuals cannot place absolute trust in their legal advisers.”
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