Peter Wright, solicitor and Chair of the Law Society of England and Wales’ Technology & Law Reference Group, reflects on the Investigatory Powers Act and its impact on the legal profession and the rule of law. The article is part of his contribution to the Law Societies’ Brussels Office panel on mass surveillance during the Computers, Privacy and Data Protection conference on 27 January.
On Friday 27 January, I was privileged to Chair a panel discussion at the Computers, Privacy & Data Protection Conference 2017 in Brussels. The Event was organised by the Joint Brussels office of the Law Societies of England & Wales, Law Society of Scotland and Law Society of Northern Ireland. The panellists included Dr. Nathalie Moreno, Margarete Graefin von Galen of the German Federal Bar and Professor Nico van Eijk of the University of Amsterdam providing a more academic perspective. We were also planning in having the Chair of the UK Investigatory Powers Tribunal Sir Michael Burton join us, but due to a delay on the Eurostar out of London he was unable to join us.
The timing of the panel was opportune given that this very same week the Law Society of England and Wales had launched its Capturing Technological Innovation Report which covers issues including Legal Technology suppliers, Fin Tech, AI, online courts, Innovation Hubs, Robotic Process Automation and Predictive Analytics. It also builds on many of the themes covered in the Law Society’s 2016 report on the Future of Legal Services.
It was a good opportunity to reflect on the recent introduction in the UK of the Investigatory Powers Act, and the fight that the Law Society undertook in lobbying for the protection of Legal Professional Privilege. Legal Professional Privilege is often a right that is all too easily taken for granted or overlooked, so accustomed are we in a society where the Rule of Law has underpinned government for several centuries. However when the initial draft bill was published, nowhere in its labyrinthine sections was there any mention of any exemption for Legal Professional Privilege from the state surveillance powers that were outlined. Indeed not many areas at all were initially marked out as being exempt. Communications between journalists and their sources would also have been liable for interception. One of the only exemptions outlined in the bill referred to communications by MPs, and the Prime Minister would have had to personally authorise the interception of any communication regarding any MP. So exemptions were there, it was just that lawyers and journalists would not benefit from them.
An additional hurdle was placed in the way by the terror attacks across Europe including Paris and Brussels, which led to a heightened climate of security and the bill being pushed through with somewhat greater haste than might have at first been envisaged. Periods for consultation were comparatively shorter than was initially expected, but the Act eventually became law in line with the necessity to replace the provisions in previous legislation covering bulk data surveillance that was about to expire. The Law Society was able to makes its case effectively at every stage of the consultation, security protection of the face of the bill for Legal Professional Privilege for the first time in any communications surveillance legislation. While the protections secured did not go far enough for some, the significant gains secured compared to when the first draft of the bill were published are considerable.
The Law Society is a thought leader in the field of technology and its future application to the legal profession, last year publishing its Future of Legal Services report and this year publishing its Capturing Technological Innovation report. The report looks at the tech suppliers in the legal profession along with examining the emergence of Fin Tech and AI. It considers the Online Court and the implications for Access to Justice as well as innovation hubs, Robotic process Automation and predictive analytics and these reports can be accessed, for free, from the Law Society website.
Peter Wright is a Solicitor and Chair of the Law Society of England and Wales’ Technology & Law Reference Group. Peter runs DigitalLawUK Ltd, which has pioneered the provision of Legal Advice to the Digital and Creative sector while also offering crucial advice to all businesses on Digital Issues including bespoke Data Protection Audits that review the handling and storage of a business’s data, their data protection policies and procedures, their social media and marketing plans and highlighting any inherent risks while also advising on a road map to govern future activity. Peter has spoken across the UK on Digital, Data Protection and Social Media Law issues and is working closely with the Law Society on Data Protection Best Practice for Law Firms.