Draft surveillance codes fall short on legal privilege: Faculty

Draft guidelines on the use of covert surveillance in Scotland fail to recognise the importance of legal professional privilege, which protects communications between lawyers and clients, the Faculty of Advocates claimed today.

Responding to a consultation on proposed codes of practice under the Regulation of Investigatory Powers (Scotland) Act 2000, prepared by the Scottish Government in the wake of the Investigatory Powers Act 2016, Faculty said it was "concerned that the protection proposed in the new codes does not properly reflect the central importance of LPP in securing the rule of law in a democratic society”.

It emphasises that LPP is different from other categories of confidential information considered in the draft codes – discussions with a minister of religion, an elected representative, a doctor or a journalist.

“Whilst maintaining the confidentiality of those exchanges is undoubtedly important, it is not, in the Faculty’s view, an essential part of securing the rule of law,” added the Faculty.

“That is the feature that gives LPP its special status and which should, the Faculty suggests, justify an enhanced and rigorous protection. From our reading of the draft codes, however, LPP is treated in substantially the same terms as those other categories of confidential information.”

Pointing out that lawyer-client communications which further a criminal purpose do not fall within the scope of LPP, it maintains that insufficient consideration has been given in the codes to the consequences of intercepting privileged communications in terms of article 6 of the European Convention on Human Rights (right to a fair trial).

Further, the deliberate targeting of matters subject to LPP is “unacceptable”, and where privileged communications are intercepted incidentally or inadvertently, there should be an obligation to destroy such information once it has been identified as such. If interception of LPP material is to be authorised, it is also important that data are regularly published on the number of authorisations granted.

“The recognition of the importance of LPP to the securing of the rule of law is not peculiarly Scottish (or British). The core ideal is recognised throughout Europe”, Faculty adds. And protections that do exist in the code should apply equally to civil as well as to criminal matters.

It concludes: "Faculty is not insensitive to the suggestion that might be made in some quarters that [its] proposals may limit the room for manoeuvre of those charged with maintaining the safety and security of the state, making, it may be suggested, their task more difficult than if they had a wide and unconstrained discretion. That, however, is inherent in the very nature of a democracy which is governed by the rule of law".