Declaration 2014: Legal Professional Privilege is vital to a fair trial

9 December 2014

Legal chiefs and academics today demanded new laws to stop police and security services from spying on meetings between lawyers and their clients.

The Bar Council and the Law Society have for years argued that codes to protect legal professional privilege from state surveillance and acquisition of communications data are weak and ineffectual. Today, together with the Faculty of Advocates, they issued a declaration to pursue the goal of tougher legislation.

Chairman-elect of the Bar Council, Alistair MacDonald QC said: "This declaration is about standing up for a principle that has existed for hundreds of years. Communications between lawyers and their clients should remain confidential. If the state eavesdrops on privileged communications to gather intelligence, clients will feel unable to speak openly with their lawyers. In many cases, the effect will be that such cases cannot properly be put and a just result will not be achieved." 

President of the Law Society Andrew Caplen said: "For many years The Law Society has called for a review of the Regulation of Investigatory Powers Act. The absence of explicit statutory protection for legal professional privilege remains a matter of serious concern to us."

James Wolffe, QC, Dean of Faculty, said: "Lawyer-client confidentiality matters to anyone who needs or might need legal representation. It is a core value of the legal profession across Europe."

The declaration follows the Investigatory Powers Tribunal case involving the al Saadi and Belhadj families which highlighted what many in the legal community have known about and campaigned on for several years, namely that the intelligence agencies are allowed by the  Regulation of Investigatory Powers Act 2000  to spy on conversations between lawyers and clients. The only situation in which private communications between lawyer and client should be capable of being spied on is when they are made in furtherance of a criminal purpose, and the law should reflect that.

Alistair MacDonald said: "After the House of Lords ruled in 2009 that RIPA can be used by the security services and police to obtain legally privileged information, the Government created a series of codes to address the issue of legal professional privilege. For years we have argued that they are not effective, and we are delighted to make common cause with Bar Councils and Law Societies across Great Britain and Northern Ireland, as well as with the Faculty of Advocates, in demanding primary legislation."

Andrew Caplen said: "As the Chairman of the Home Affairs Committee said last week, RIPA is not fit for purpose. Law enforcement agencies fail to routinely record the professions of individuals who have had their communications data accessed. There needs to be explicit protection for legal professional privilege in the Act."

Ends

 

EUROPEAN LAWYERS DAY DECLARATION 2014

We, the Bar Council of England & Wales, the Bar Council of Northern Ireland, the Faculty of Advocates, the Law Society of Scotland, the Law Society of England & Wales and the Law Society of Northern Ireland

United in our commitment to the rule of law and the administration of justice and to the highest standards of professional conduct

Recall:

  1. that it is a fundamental duty of every lawyer to preserve and protect the confidentiality of the lawyer's clients;

  2. that the lawyer's obligation of confidentiality serves the interests of the administration of justice as well as the client's interest;

  3. that, as the European Court of Justice has recognised, the lawyer's obligation of confidentiality "contributes towards the maintenance of the rule of law";

  4. that, for these reasons, the lawyer's right and duty of confidentiality is entitled to special protection by the state.

We note that the issue of surveillance has given rise to great public concern. In light of those concerns, the Council of European Bars and Law Societies has expressed concern that "a core value of the profession ... known in some countries as legal professional privilege is at serious risk, and erosion of this aspect of confidentiality will erode trust in the rule of law".

We affirm the importance of the work of government bodies engaged in law enforcement and national security in protecting the public and in investigating crime. Such activities must nevertheless operate within a legal framework which respects the fundamental rights and freedoms which characterise our constitutional democracy. If the fundamental values which we have affirmed above are not to be undermined, the use of surveillance techniques must be attended by robust and transparent legislative, procedural and technological safeguards which are explicitly directed to protecting lawyer-client confidentiality.

 Notes to editors

  1. This is a joint press release by the Bar Council and The Law Society.

  2.  Further information is available from the Bar Council Press Office on 020 7222 2525 and Press@BarCouncil.org.uk.

  3. The Bar Council represents barristers in England and Wales.  It promotes:

  • The Bar's high quality specialist advocacy and advisory services

  • Fair access to justice for all

  • The highest standards of ethics, equality and diversity across the profession, and

  • The development of business opportunities for barristers at home and abroad.

The General Council of the Bar is the Approved Regulator of the Bar of England and Wales. It discharges its regulatory functions through the independent Bar Standards Board