Alistair MacDonald QC speech to Faculty of Advocates

9 December 2014




Edinburgh, 9 December 2014

 The recent decision of the Investigatory Powers Tribunal last month in the case of Belhajd made it abundantly clear how far the protection of legal professional privilege (LPP) could be breached by MI5, MI6 and GCHQ in targeting communications between clients and their lawyers. The extent of the problem can be demonstrated by the fact that even placing a bug in a set of barristers' chambers would have been permitted.

The Bar Council and the Law Society have argued, over several years, that the principle of LPP needs to be entrenched in statute and that the codes are neither sufficiently clear nor robust enough for the purposes for which they were designed. For example, the test set out in the code for the authorisation of surveillance that is likely, but not intended, to acquire privileged information is identical to the statutory test for any authorisation for intrusive surveillance under the Regulatory of Investigatory Powers Act 2000 (RIPA). It contains no special protection for privileged material.

It is, therefore, a matter of regret, despite our principled stance in relation to the codes of practice issued by the Home Office since 2010, that the Government have not been more concerned to respond to the growing calls on them to respect and protect the confidentiality of communications between lawyers and their clients.

The need to take action has become more urgent. Around the world the level of terrorism has increased and is unlikely in the foreseeable future to diminish. Terrorists have demonstrated a growing sophistication in their ability to pursue their ends, at whatever price. At the same time developments in surveillance and technology have shown that, unless we act, there is a risk that our ability to devise appropriate policy responses will be outpaced by technology. 

Now is the time to take action. That is why the Bar Council and The Law Society are joining forces today, with the Faculty of Advocates, in making the European Lawyers' Day Declaration which calls for a tougher legislative framework to combat the challenges. 

We need to meet those challenges with a response that is both robust and fair because legal professional privilege has a special role to play in enabling us to protect the safety and security of citizens. The principle that communications between lawyers and their clients should be confidential has been settled for hundreds of years. We say that, as a matter of general principle, it should remain so.

If the state eavesdrops on privileged communications in order to gather intelligence, there is a risk that those suspected of a crime will feel unable to speak openly with their lawyers.  As a result it may not be possible for an advocate to put his client's case fairly. LPP provides a vital means for achieving a just outcome to a trial. It supports the rule of law and plays a key role in the administration of justice.

The more recent legislation of 2000 - RIPA - permits the police and other public authorities to obtain legally privileged material in a number of ways, through:

  • the interception of communications,

  • the acquisition of communications data,

  • covert surveillance, or

  • the use of a covert human intelligence source (CHIS).

Centuries of protection afforded by legal professional privilege under the common law, and more recently by statute, has been placed on a less secure footing.

In 2009 in Re McE the House of Lords held that the right of a person detained to consult a lawyer privately contained within the Police and Criminal Evidence Act 1984 did not provide protection from covert surveillance authorised under RIPA. That decision applies equally to the other covert surveillance techniques governed by RIPA.

There is proper place for distinguishing between the use to which LPP can properly be made and where it may be abused. We have to strike the right balance. What is clear is that protection by codes of practice is insufficient in the conditions we now face. There needs to be greater clarity in the law to ensure that LPP continues to play its part in the proper administration of justice.

Recent events suggest that the Legislature is becoming more alive to this issue. Last month Lord Strasburger tabled an amendment to the Serious Crime Bill to ensure that the acquisition of communications data protected by legal privilege is subject to judicial oversight. More recently, in a hard-hitting report on 6 December, the Home Affairs Select Committee called for a full Home Office consultation on an amended RIPA code of practice making specific provision for information covered by legal professional privilege.

We still have some way to go in winning the argument. In response to the joint letter the Bar Council and the Law Society wrote on 24 October, the Security Minister at the Home Office, James Brokenshire said on 19 November that he did not regard communications data itself to be subject to legal professional privilege. However it is now widely acknowledged that by piecing together enough of this 'meta data', intelligence agencies can build a strong picture of its likely content.

It is clear that we need legislation that will prevent authorities from using RIPA powers deliberately to target legally privileged information. As I have said, to preserve confidence in the rule of law, surveillance should be permitted only within a legal framework which explicitly recognises the importance of lawyer-client confidentiality and which contains sufficiently robust safeguards.

This is not a matter of abstract law. The relationship between lawyer and client has been protected for centuries because, unless there is abuse, there is a public interest in affording privilege to communications which take place within this relationship, in the interest of justice. It is time for Parliament to re-state its position on legal professional privilege and to ensure that, within the framework for which we are calling, there is proper accountability and transparency in new arrangements which meet the needs of the time.