Another rush job on surveillance that will weaken legal privilege

2 March 2016

Another rush job on surveillance that will weaken legal privilege 

  • Parliamentary timetable too short for proper scrutiny

  • Privacy and right to fair trial undermined

  • Government ignoring distinction between privileged and non-privileged information

  • Clients will no longer be guaranteed confidentiality with their lawyers

Despite claims that new surveillance laws will contain 'protections for lawyers', today's Investigatory Powers Bill will allow authorities total access to confidential, legally privileged communications between individuals and their lawyers, even when someone is in a legal dispute with the Government or defending themselves against prosecution.

A cross party scrutiny committee explicitly recommended statutory protection for legal privilege, but the Government has failed adequately to draft safeguards in to the Bill that will protect client confidentiality.

Commenting on the Bill's far reaching implications for our fundamental rights, and the short timetable allowed for the passage of the Bill, Chairman of the Bar Chantal-Aimée Doerries QC said:

"The confidentiality of communications between lawyers and their clients is one of the cornerstones on which our criminal justice system is based. Weakening that principle jeopardises the fairness of the trial process.

"Following extensive discussions with the Home Office and the recommendation of the Joint Parliamentary Committee which examined the draft Bill, the Bar Council is disappointed that the Bill introduced to Parliament today does not provide sufficient protection for legal privilege on the face of the Bill.  

"It is vital that this measure is subject to proper parliamentary scrutiny to ensure that the interests of justice and security are kept in balance. That is why we shall continue to take a close interest in the Bill during its progress through Parliament."  

Peter Carter QC, Chair of the Bar Council Surveillance and Privacy Working Group, who gave evidence to the joint scrutiny committee for the Bar Council, said:

"The main purpose of this legislation is to give the security services the surveillance powers they need to keep us safe, and that is why today's Bill is such a disappointment. Giving the security services more powers than are necessary for that purpose will diminish the system of justice, which is the benchmark of any democratic society.

"We have explained in very clear terms to the Government that legal privilege does not apply where lawyer client communications reveal information that could be used to prevent a terror attack, foil a threat to national security, or bring an end to an on-going crime such as a kidnapping or the abuse of a child. Neither does privilege apply where a lawyers is acting illegally. Such communications should of course be subject to surveillance.

"Unfortunately, this Bill ignores the clear distinction between privileged and non-privileged communications and instead gives authorities powers to spy on sensitive, highly confidential communications that have nothing to do with criminality, national security or threats to individuals.

"The Bill undermines the right to a fair trial because barristers will no longer be able to reassure clients that their communications, which the public interest demands should be immune from state intrusion, are in fact private and confidential. It will, for example, allow authorities to listen in on clients and lawyers who are in the middle of a legal dispute against the Government.

"Lawyers give advice on the strength or weakness of their client's case. That requires clients to trust that what they say is not being overheard by the state or by those to whom the state chooses to pass on such information.

"This Bill is a rush job that will undermine one of our most fundamental rights. We hope that the Government will extend the timetable of the Bill and give full and proper consideration to Bar Council amendments which adequately would protect legal privilege without restricting the work of the security services."

Further information 

  • Legal privilege is the right of the client, not of the lawyer, as suggested by the Home Secretary in today's statement to the House, which referenced 'statutory protections for lawyers'. 

  • The Bar Council gave evidence to the Joint Committee on the Draft Investigatory Powers Bill on 16 December 2015. Peter Carter QC, Chair of the Bar Council Surveillance and Privacy Working Group, made the case for provisions to protect legal privilege from state surveillance to be placed in the Bill itself rather than in codes of practice, as suggested by the Draft Bill. 

  • This policy line was reflected in the Joint Committee's report to Government on 11 February 2016, which recommended that provision be made for legal privilege in the published version of the Bill. 

  • Chairman of the Bar, Chantal-Aimée Doerries QC signed an open letter along with over 100 other signatories, including MPs and Peers from all main parties, published in the Telegraph on 1 March. The letter called on the Government to allow more time for the Investigatory Powers Bill to be passed.

Ends

Notes to Editors 

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

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