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“The only situation in which private communications between lawyer and client should be capable of being spied on is when they are made in furtherance of a criminal purpose, and the law should reflect that principle”

Alistair Macdonald QC

Last week, the High Court ruled that emergency surveillance legislation passed by the coalition government in 2014 is unlawful. The High Court came to the decision on 17th July 2015 that the Data Retention and Investigatory Powers Act (DRIPA) 2014 which, among other demands, requires internet and phone companies to keep their communications data for a year, was “inconsistent with European Union Law

Upholding a judicial challenge by Labour MP Tom Watson and Conservative MP Davis Davis, Lord Justice Bean and Mr Justice Collins declared that the law “does not lay down clear and precise rules providing for access to and use of communications data”. The Coalition government introduced DRIPA as an emergency piece of legislation to allow the security services access to communications data. It was enacted in four days and was given just one day of parliamentary scrutiny and gave the police the authority to ‘self-authorise’ their own access to individuals’ personal information.

 

“it’s totally unacceptable to rush through draconian powers which allow government agents to spy on citizens without proper safeguards.”

Rachel Logan, Legal Programme Director, Amnesty UK

 

Davis and Watson argued that the use of communications data was not limited to cases involving serious crime, and that the law made no provision for those, like lawyers and other legal professionals, under obligation of professional confidentiality.

 

“access by the police and other agencies to everyone’s data is too easy. It can range from a politician giving permission [to intercept communications] to anyone in the next office. That’s against the law, and it’s not either in the interests of privacy or security.”

David Davis MP

Lawyers were outspoken against the legislation, rightly seeing it as a breach of legal professional privilege, a doctrine that has existed for centuries and is vital to protecting the fairness of a trial. The Coalition government, as Chairman of the Bar Council Alistair Macdonald QC pointed out, took the misguided view that legal communications were not covered by professional privilege.

 

“DRIPA and the Regulation of Investigatory Powers Act (RIPA) together gave dubious legal authority to security services to spy on conversations between lawyers and their clients, and to collect associated communications data.”

 

This ruling upholds the basic human right to privacy, democracy and the rule of law and is a major, positive step towards safeguarding legal communications between Chambers and their clients.

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