Bar Council - Private Legal Advice Must be Protected

2 February 2012

Following a report published today by Her Majesty's Inspectorate of Constabulary (HMIC) on the use of undercover police officers, the Bar Council, which represents barristers in England and Wales, has urged the Government to protect the fundamental right of citizens to hold private conversations with their lawyers.

The issue has been debated at Committee and Report Stages of the Protection of Freedoms Bill in the House of Lords. An amendment, proposed by Baroness Hamwee at the suggestion of the Bar Council, would protect legal professional privilege (LPP) in all but those circumstances where it is being abused in furtherance of criminal purpose. It would bring the Regulation of Investigatory Powers Act 2000 (RIPA) in line with existing legislation and would contribute towards the Home Secretary's stated aim "to roll back the creeping intrusion of the state into our everyday lives". The amendment was opposed by the Home Office Minister, Lord Henley, and subsequently withdrawn.
Michael Todd QC, Chairman of Bar, said:

"Today's report by HMIC emphasises the need for stricter and more coherent rules around the surveillance of individuals by the state. Unfortunately, it does not address a key concern raised by the case of DC Kennedy: that he may have been privy to legally privileged communications between fellow defendants and their lawyers and could have passed that material to the Crown.

"It is extremely disappointing that the Government has not so far taken the opportunity presented by the Protection of Freedoms Bill to reassert the fundamental right of an individual to consult their lawyer in private. This is a right which was unintentionally eroded by RIPA, as confirmed by the 2009 House of Lords judgment In Re McE.

"RIPA contains no express provision about legal privilege, so the issue was not debated when the legislation was considered by Parliament. Whenever Parliament has had an opportunity to consider LPP, it has consistently voted to protect it, subject to the provisions contained within the proposed New Clause.

"The Government's response to Tuesday's debate, when Baroness Hamwee moved the New Clause and spoke forcefully of its importance, was very worrying. The Government appears to want to continue to be able to erode this fundamental human right for investigatory purposes. In our view, this is unacceptable. We urge the Government to address this issue again. The Bar Council will continue to pursue this matter forcefully, in the public interest."

Notes to editors
1. The Bar Council's interest follows the 2009 case of In Re McE, when the House of Lords in its judicial capacity held that RIPA entitles the police to violate legal privilege by subjecting confidential lawyer-client conversations to covert surveillance, even where there is not the slightest suggestion that privilege is being abused for a criminal purpose. Please click here to read the Bar Council's briefing for Peers on Baroness Hamwee's proposed New Clause for the Protection of Freedoms Bill, which would protect legally privileged communications.
2. For further information, please contact the Bar Council Press Office on 020 7222 2525.
3. 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.