Unlawful Spying: That's been bugging us for years

19 February 2015

The Government yesterday admitted that security service policies on eavesdropping on conversations between lawyers and clients have been unlawful, but this should come as no surprise, according to the Bar Council.

Alistair MacDonald QC, Chairman of the Bar, said: "Spying on conversations protected by Legal Professional Privilege (LPP) is fundamentally unacceptable and constitutes a breach of the rule of law in all but a handful of highly exceptional cases. Unfortunately, RIPA 2000, DRIPA 2014, and a House of Lords ruling in 2009, drove a truck through this centuries-old principle. These anti-terror laws created a huge loop-hole for the security services to snoop on legally privileged communications, with only flimsy codes of conduct to keep them in check.

"The Bar Council, among others, has been saying for many years that we need primary legislation to protect LPP from state surveillance. When RIPA and DRIPA were pushed and rushed through Parliament, MPs and Peers were not given the opportunity to acknowledge, let alone debate, the implications for LPP. It is no surprise that the Government has been forced to admit that this behaviour was unlawful and that it breached Article 8 of the ECHR right to privacy.

"Lord Hoffmann has described LPP as 'a fundamental human right', and Lord Taylor CJ said it is 'a fundamental condition on which the administration of justice as a whole rests.'

"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. We need a rigorous scheme of law by which any breach of LPP is regulated, including proper judicial oversight."

Ends

Notes to editors

  1.  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