Law Society of Scotland seriously concerned over UK government’s snooping law

The Law Society of Scotland expressed concern about the consequences of the draft Investigatory Powers Bill for legal professional privilege, which safeguards oral and written communications between lawyers and clients.

The bill would see individuals’ internet and mobile phone records retained by companies for a year in order to allow police and security services to access them. It also outlines authorities’ powers to hack phones and computers as well as place bugs on them.

According to the Home Office, the measures would be used to deal with terrorism, paedophiles and organised crime and could also protect vulnerable people on social media.

But the Law Society said in a written response it will affect lawyer-client relations: “Legal professional privilege (LPP) is key to the rule of law and is essential to the administration of justice as it permits information to be exchanged between a lawyer and client without fear of it becoming known to a third party without the clear permission of the client.

“We feel that it is essential that LPP is expressly protected in the proposed legislation.”

A “code of practice” in the bill is meant to mitigate against the abuse of the powers where “sensitive professions” such as solicitors are concerned but the Law Society said this is “very unusual” and “not satisfactory”.

Its response added: “All other legislation which relates to investigatory powers expressly provides for LLP within the provisions of the relevant Act.

“We suggest that no clear evidence or reasoning has been provided to demonstrate or explain the absence of the protection of LLP within the Bill and why this should be in a code of practice. We would welcome clarification from the UK Government of the reason for this.

“A code of practice does not have the force of law, giving the possibility of abuse. Deliberate targeting of communications covered by LPP needs to be declared unlawful.”

Data pertaining to the who, when, where, how and with whom of communications would be accessible under the proposals by means of a two-point check within the body seeking the information.

In order to access the content of communications, however, approval of a judicial commissioner would be needed.

While acknowledging that “content is an essential component”, the Law Society said the other, tangential, data can also be used to expose details.

The Home Secretary, Theresa May, has said the bill “will establish world-leading oversight to govern an investigatory powers regime which is more open and transparent than anywhere else in the world”.