Mr Charles Clarke MP
Minister of State
Home Office
50 Queen Anne's Gate

Mr. Robert Sayer 
The Law Society of 
England & Wales
113 Chancery Lane
London WC2A 1PL

26 May 2000

Dear Mr Clarke,

Re: Investigatory Powers Bill/legal professional privilege 

The Law Society has serious concerns about the lack of protection for
privileged material in the Investigatory Powers Bill. 

The Society has raised this concern with the Government before. It is the
Society's view that the reasons why there was previously no exception for
privileged material was because, under the Interception of Communications
Act 1985, selective interception of communications was not possible. All
communications had to be intercepted in order to decide which communication
was relevant to an investigation. In this indiscriminate process,
privileged material was also inevitably accessed.

In the current context of electronic communication, it is possible to
conduct a more selective search for relevant material. Therefore, if a
particular, encrypted, communication is likely to be relevant for an
investigation, the addressee of the communication can be asked to produce a
decoded, or plaintext, version of the text, instead of having to produce a
decryption key. This is significant because the decryption key could,
potentially, allow access to many other communications which have nothing
to do with the investigation. The Law Society believes that the
Investigatory Powers Bill must incorporate this principle in order to offer
adequate protection to legal professional privilege and the right to a fair

Should it be incorporated into the Bill, investigators could request the
plaintext of a communication which is likely to be of interest. The
addressee of the communication therefore has the opportunity to explain
whether the material is legally privileged, and to raise the privilege
exception if need be. 

It is unsatisfactory that the Bill as presently drafted does not allow that
objection to be taken.

Yours sincerely,

Robert Sayer