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Professional secrecy panel - short presentation by Law Society president Andrew Caplen

9 August 2014

Many here may know this as professional secrecy. In England and Wales we call it legal professional privilege. But something we can all agree on is that the right to consult a legal adviser in confidence is fundamental to any system of justice.

In England we have held this principle sacred for centuries. The first recorded instance in our case-law dates back to 1577 when a lawyer, Thomas Hawty, was being ordered to testify in his own client's case. He protested and the Master of the Rolls – the chief civil judge in England – declared that Hawty should not be compelled to disclose the relevant information.

The reason behind this decision? The Master of the Rolls said that this principle was not about professional conduct - but rather the proper administration of justice.

However, recent revelations have warned us that professional privilege could be under threat from our own government's surveillance.

So, what constraints are there on the UK state and its investigators? How could this impact upon legal privilege? And why is it that the state requires a court issued warrant to enter a person's property, but none is needed in respect of a citizen's 'cyber space'?


The Regulation of Investigatory Powers Act 2000, or RIPA, is where UK surveillance really stepped up a sizeable degree.

RIPA was introduced to set out the scope by which public bodies could conduct surveillance or intercept communications. It includes five core categories of surveillance, each requiring it's own level of authorisation ranging from senior staff to the home or justice secretary.

RIPA's code of practice permits surveillance, even if the state might acquire knowledge subject to legal privilege. In such instances, the required authorisations cannot be made unless there are 'exceptional or compelling circumstances'.

If an authorisation is granted the risk of ascertaining information under legal privilege is supposed to be minimalised as much as possible. And any information that is subject to legal privilege should not be used in court.

The government believes this system recognises the sensitivity and importance of legal privilege. But the Law Society does not.

Legal privilege is about more than just the information that underpins a trial. It is also concerned with encouraging complete disclosure so that lawyers can ensure that their clients have proper access to justice.

The Law Society has been calling for a thorough review of RIPA for some time now. In particular, we consider that there must be an explicit statutory safeguard for legal professional privilege.

Data Retention Directive

In 2006 the EU passed the Data Retention Directive. This requires member states to store citizens' telecommunications data for a minimum of six and a maximum of 24 months.

This was not really about instructing states to retain data. Rather it was more about ensuring consistency as to how long communications were stored between EU countries.

However, in April of this year, the European Court ruled that by requiring data retention, and by allowing national authorities to access such data, the directive interfered with, and I quote:

'The fundamental right to respect for private life and to the protection of personal data.'

It was therefore considered a breach of the European Convention of Human Rights - because data can be accessed without the individual being aware. It was considered that many citizens, if not all, were likely to feel that their private lives were subject to constant surveillance.

The ECHR identified 10 key principles which together would make data retention compliant to human rights and EU law. One of these is to provide exceptions for communications that are subject to professional privilege.

The UK government treated the court's decision as a mere inconvenience by rushing through it's latest act. DRIP. A wonderful acronym!


The Data Retention and Investigatory Powers Act was passed last month. It is far from a perfect example of the British parliamentary system.

In effect, DRIP overrules the European Court's judgment. It re-asserts the sweeping surveillance powers that had been deemed to be in breach.

It also extended the government's powers to allow for extra-territorial reach. The UK government can now force non-UK companies, like Microsoft and Facebook, to retain information on UK users.

You would have hoped that, given the importance and far-reaching implications of this act, that it would have been subject to at least the standard level of parliamentary scrutiny.

Unfortunately, this was not the case. DRIP was rushed through parliament as emergency legislation. Only three months after the court's judgment. The parliamentary process took just three days - without the flaws that had been expounded by the ECHR being properly addressed.

Needless to say, the Law Society has very serious concerns. We still do not know what justified the use of emergency legislation. A cynic might argue that the process utilised was in order to prevent proper parliamentary and public scrutiny.

Without any assurances that professional secrecy will be adhered to, should we assume the worst?

Next steps

The Law Society is making a concerted effort to raise the profile of this issue by contacting other professional organisations, academics and the media.

Legal privilege must be protected from any system of surveillance.

We are also exploring the potential for a digital Magna Carta.

Against the backdrop of mass surveillance, Sir Tim Berners-Lee, the inventor of the world wide web, has called for a digital Magna Carta. He has been joined in this call by many others, including your former vice president Al Gore.

Sir Tim envisages the development of a 'digital bill of rights' in each country. A statement of principles that are supported by public institutions, government officials and corporations.

It is hoped that these national documents would lead to a shared document of principles, providing an international standard for the values of the open web.

The development of a global digital Magna Carta is an international effort that we consider should command the support of lawyers, their bar associations and law societies worldwide.

And we will be considering the possibility of such a charter and discussing Sir Tim's idea at the Global Law Summit, due to be held in London in February 2015.