Legal Professional Privilege

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What is legal professional privilege?

Communications between lawyers and their clients are protected by Legal Professional Privilege (LPP). This means that lawyers have a duty to hold them in the strictest of confidence and that nobody has the right to know anything about them without the client's consent.

This confidentiality, and the trust that comes from it, is essential to ensuring a defendant gets a fair trial. If a defendant feels unable to speak openly with their lawyer, if they only tell half their story because they fear the implications of them not being held in confidence, it may cause serious damage to their case.

The only exception to this rule is where communications between a client and lawyer are used for the furtherance of criminal activity. This is known as the iniquity exception.

Why Legal Professional Privilege is a Bar Council Campaign

LPP is an established legal principle of several centuries standing. In 1984 it was given a statutory basis by the Police and Criminal Evidence Act. However in 2009 the House of Lords ruled that the anti-terror law, the Regulation of Investigatory Powers Act (RIPA) 2000, allowed the Police and other public authorities to obtain legally privileged information - in other words, to spy on conversations between lawyers and clients.

To try and protect information covered by LPP from being completely open to surveillance, a number of draft codes of conduct were created for security agencies and public authorities to follow.

However, the Bar Council, among others, did not believe these 'codes' gave sufficient protection. Not only were the measures they lay out inadequate, because they are codes they lack the force of primary legislation.

Since 2009 the Bar Council has campaigned to put LPP back on the statute books and have it debated in Parliament as part of the legislative process.

During a recent Investigatory Powers Tribunal brought by the Belhadj families, the policies of MI5, MI6 and GCHQ, where they related to LPP, were disclosed which suggested that intelligence agencies had been freely targeting communications between clients and lawyers.

What has the Bar Council been doing?

The Bar Council has been campaigning on this issue for several years. An over-view is available below, and for more detailed account click here or browse through our press releases and communications documents.

2010

  • Responded to the government consultation on the revised RIPA codes of practice.

2012

  • Campaigned for primary legislation to protect LPP, sponsoring amendments to the Protection of Freedoms Bill 2012 tabled by Baroness Sally Hamwee

  • Encouraged parliamentarians during the party conference season to include LPP safeguards in the Draft Communications Data Bill

  • Responded to an HMIC report on the use of undercover police officers and their access to legally privileged information

  • Wrote and had published articles on the inadequacy of existing codes of practice and called for primary legislation to protect LPP, and

  • Drafted amendments to a number of RIPA codes.

 2014

  • Wrote to the Minister for Security and Immigration, James Brokenshire MP, to seek stronger codes (click here to read the letter)

  • Chairman of the Bar Council, Nicholas Lavender QC, attended the Investigatory Powers Tribunal hearing in the al Saadi and Belhadj case

  • Nicholas Lavender QC, spoke on The World Tonight on BBC Radio, explaining the importance of LPP and the need for reform, and

  • In-coming Chairman of the Bar, Alistair MacDonald QC, spoke at the Faculty of Advocates to launch a joint declaration, affirming the importance of LPP (click here for links to the speech, declaration and press release).

 2015

  • Bar Council, The Law Society, the British Association of Social Workers, and the National Union of Journalists, joined forces to create 'Professionals for Information Security' calling for better protection of professional confidentiality against surveillance by the state. (Click here for a link to the statement and press release)