The Importance of Legal Professional Privilege

13 November 2014

LEGAL PROFESSIONAL PRIVILEGE

Recent media reports on the Interrogatory Powers Tribunal case involving the al Saadi and Belhadj families have 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 (RIPA) to spy on conversations between lawyers and clients.

MI5, MI6 and GCHQ policies, which have been disclosed in the context of the case, suggest that the intelligence agencies have been targeting communications between clients and lawyers which are subject to legal professional privilege (LPP). Yet this should come as no surprise. The Bar Council has been arguing since 2009 that primary legislation is needed to stop government agencies spying on lawyers and their clients.

Chairman of the Bar Council, Nicholas Lavender QC said:"For hundreds of years, it's been an important principle that communications between lawyers and their clients remain confidential. If the state eavesdrops on privileged communications to gather intelligence, clients will feel unable to speak openly with their lawyers, which will damage their case, and could wreck it.

"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."

The Bar Council is renewing its call, first made in 2012, for primary legislation to create proper and robust safeguards for LPP.

Legislation must be introduced in order to:

  • Prevent authorities from deliberately using the RIPA powers of surveillance, covert human intelligence sources (CHIS), interception of communications and acquisition of communications data to target legally privileged information,

 

  • Continue to permit the authorities to seek access to privileged information where the lawyer-client relationship is being abused for a criminal purpose, and

 

  • Make provision, through the RIPA Codes of Practice, for minimising the risk of the authorities accidentally obtaining legally privileged material and setting out the steps to be taken when that happens.