Briefing on Legal Professional Privilege

13 November 2014

Background to LPP issues

The Police and Criminal Evidence Act 1984 (PACE) prohibits the police from searching for information subject to LPP.

However, the House of Lords ruled in Re McE in 2009 that the Regulation of Investigatory Powers Act 2000 (RIPA) permits the police and other public authorities to obtain legally privileged material through:

  • the interception of communications,

  • the acquisition of communications data,

  • covert surveillance, or

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

Because RIPA contains no express reference to privilege, Parliament did not have the opportunity to debate whether it should apply to privileged communications or to consider what safeguards should be put in place to protect privileged material.

In the light of the McE decision, in 2010 the Government revised the RIPA codes of practice [1] to address legal privilege in the context of a range of intelligence gathering scenarios.  But the codes of practice make clear that privileged communications can be targeted.

In July 2014, following a ruling by the European Court of Justice which declared the 2006 Data Retention Directive to be invalid, the Government rushed through the Data Retention and Investigatory Powers Act 2014 to ensure that it could force mobile 'phone companies and internet service providers to retain communications data. There is no provision within the legislation to protect the principle of legal privilege.

Since then, the Government has produced two revised draft RIPA codes of practice in July 2014, and more are expected. 

Current threat to Legal Professional Privilege

Despite the publication of the RIPA codes, LPP information is not properly protected by law. This is clear even from the most recent draft codes published in July 2014.

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 RIPA. It contains no special protection for privileged material. [1]

Where surveillance is intended to acquire privileged information, the Code stipulates that authorisation should be granted only in a restricted range of cases, such as where there is a threat to national security or to 'life or limb'. In the Bar Council's view, this lacks clarity, and while it may catch serious intentional offences of personal violence, it could extend to more minor offences where physical injury results from lack of reasonable care or from breach of a duty that gives rise to strict liability. [2]

Bar Council activity on Legal Professional Privilege

The Bar Council has been campaigning for greater protection of LPP since the 2009 House of Lords ruling.  In particular, in 2010 we responded to the subsequent government consultation on the revised RIPA codes of practice.

Then in 2012 the Bar Council campaigned for primary legislation to protect LPP, sponsoring amendments to the Protection of Freedoms Bill 2012 tabled by Baroness Sally Hamwee. The Bar Council communicated extensively with media and parliamentarians to promote the measures. A briefing paper was produced and disseminated in February 2012.[3]

At this time, members of the Bar Council's Law Reform Committee and the Bar Council Communications team met the Rt Hon David Davis MP to seek his support for corresponding changes to the Bill in the Commons.

Other activity throughout 2012 included:

  • February 2012 - The Bar Council responded to an HMIC report on the use of undercover police officers in light of the fact that DC Kennedy may have been privy to legally privileged information.

  • May 2012 - Nick Griffin QC and Gordon Nardell QC, members of the Bar Council's Law Reform Committee, wrote an article for Counsel Magazine in which they argued that existing codes of practice were inadequate and called for primary legislation to protect LPP.

  • June 2012 - Following a meeting with Home Office Minister, Lord Henley, the Law Reform Committee drafted amendments to a number of RIPA codes.

  • September 2012 - The Bar Council encouraged parliamentarians during the party conference season to include safeguards in the Draft Communications Data Bill which would protect legally privileged communication in the manner intended by the Police and Criminal Evidence Act 1984.

Most recently:
  • On 24 October 2014 the Chairman of the Bar Council and the President of the Law Society wrote to the Minister for Security and Immigration, James Brokenshire MP, in relation to the Data Retention and Investigatory Powers Act 2014 to:

  • Seek assurances that measures will be introduced to protect information subject to the legal privilege between lawyer and client,

  • Ask when we will see a consultation on a code of conduct which will help protect LPP in respect of the security agencies' powers under DRIPA, and, 

  • Call for measures to protect LPP from police investigations using RIPA.

  • On 6 November 2014 the Chairman of the Bar Council, Nicholas Lavender QC, attended the Investigatory Powers Tribunal hearing in the al Saadi and Belhadj case.

  • On 6 November 2014 the Chairman of the Bar Council, Nicholas Lavender QC, spoke on The World Tonight on BBC Radio, explaining the importance of LPP and the need for reform.

[1] (P4.12)

[2] Ibid.