Respect the client's right to legal privilege - MPs warned

22 October 2015

Joint press release from the Bar Council and The Law Society:

Lawyers call for statutory protection of lawyer-client communications

The statutory protection of legally privileged communications between lawyers and their clients should be high on the agenda when Parliament debates major new surveillance legislation next month. The Bar Council and The Law Society have called for legal professional privilege to receive statutory protection in the forthcoming Investigatory Powers Bill.

The legal professional bodies have issued a position paper on lawyer-client confidentiality in the context of the debate over the balance between privacy and security in the use of investigatory powers. These powers are used by law enforcement and the security and intelligence agencies and include interception of communications, covert surveillance, undercover police officers and the acquisition of communications data.

The legal professional bodies argue that:

  • Legal professional privilege is a vital principle of the administration of justice. It is the mark of a democratic society that citizens can consult a legal adviser in absolute confidence that the information they exchange will not be disclosed without the client's authority. There are safeguards to prevent the abuse of legal professional privilege for criminal purposes. 

  • The current legal framework for the exercise of investigatory powers is not fit for purpose. Next month's Investigatory Powers Bill is an opportunity to consider and debate a new law. 

  • The new law should expressly protect legal professional privilege from the activities of public authorities seeking to use investigatory powers, including the acquisition of communications data. 

  • The new law should make clear that the deliberate targeting and use of legally privileged information is unlawful. 

  • Protecting legally privileged communications would not pose any risk to legitimate investigations because legal professional privilege does not apply where the lawyer-client relationship is being abused for a criminal purpose. 

  • More generally, the new law should include a system of prior judicial authorisation for all covert information-gathering by a public authority. 

  • Bulk interception of communications or retention of communications data is questionable in a democratic society, but if such powers are approved by Parliament, there should be special provisions to protect privileged communications between lawyers and their clients.

President of the Law Society of England and Wales Jonathan Smithers said: "Legal professional privilege protects a client's fundamental right to be candid with their legal adviser without fear that someone is listening in or that what they say will be disclosed to their prejudice.

"The absence of explicit protection for legal professional privilege in earlier surveillance legislation has been of long-standing concern to the Law Society. Documents released before the Investigatory Powers Tribunal earlier this year illustrated the inadequacy of the existing legislation.

"The government now has the opportunity to debate legislation that gives statutory protection to the client-lawyer relationships that a civilised society depends on, while including safeguards against abuse for criminal purposes."

Chairman of the Bar Alistair MacDonald QC said:"Intelligence agencies must not be allowed to spy on communications between clients and their lawyers. When you are defending yourself against the state or find yourself in a dispute against a public authority, it would be grossly unfair for them to listen in on conversations with your lawyer.

"We have seen too many examples of prosecutions wrecked because it was found that a public authority had eaves-dropped on a conversation that should have remained private.

"This is not special pleading for lawyers; the privilege is that of the client. Legal professional privilege has existed for centuries to enable clients to have a fair trial. We will be studying the Draft Investigatory Powers Bill closely in the hope that it provides sufficient protection for privileged communications and the associated meta-data, which reveals information such as who sent it, when, where and from which device.

"No argument at all has been made as to why privilege should be revoked and we must make sure that legislators do not sleep-walk into approving a bill that would corrupt the administration of justice."

The full parliamentary briefing is available here.

ENDS

Notes to Editors 

1. Further information is available from the Bar Council Press Office on 020 7222 2525 andPress@BarCouncil.org.uk or from the Law Society press office on 020 7316 5592 and press@lawsociety.org.uk 

2. 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.

3. 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