Surveillance laws ruled unlawful

17 July 2015


Chairman of the Bar, Alistair MacDonald QC has responded to today's High Court declaration that the Data Retention and Investigatory Powers Act (DRIPA) 2014 is unlawful.

Alistair MacDonald QC said: "DRIPA and the Regulation of Investigatory Powers Act (RIPA) together gave dubious legal authority to security services to spy on conversations between lawyers and their clients, and to collect associated communications data. That is a breach of legal professional privilege.

"New surveillance laws, expected this autumn, must make it clear that spying on conversations between lawyers and their clients is unlawful."

DRIPA was introduced to allow the security services access to communications data, which is often described as the 'who, when, where' of a communication, rather than its actual content.

He said: "Access to communications data now enables security services to piece together a very complete picture of what the contents might look like. As technology has advanced, there is a diminishing distinction between communications data and its content in terms of what we can learn about a target."

"The Coalition Government took the view that communications data was not covered by legal professional privilege. We will be urging Parliamentarians, as they consider the Draft Investigatory Powers Bill in the autumn, to protect and safeguard legally privileged communications form all forms of surveillance, including data retention."

Introduced as emergency legislation, DRIPA was enacted in just four days in 2014 and was allowed just one day's Parliamentary scrutiny.

Alistair MacDonald QC said: "Surveillance legislation determines the levels of privacy we enjoy and it enables our security services to tackle terrorism and serious crime. Today's judgment is a reminder that formulation and scrutiny of such laws should not be rushed. Parliament must be given sufficient time properly to scrutinise the Investigatory Powers Bill."

The importance of legal professional privilege

Alistair MacDonald QC said: "Legal professional privilege is one of the most important safeguards protecting the fairness of a trial. It is a doctrine that has existed as a constitutional principle for centuries.

"If the state eavesdrops on privileged communications to gather intelligence, clients will feel unable to speak openly with their lawyers. This has the potential result that defence teams will not even know about perfectly proper defences open to a defendant and will therefore not be able to advance them at trial.

"It is manifestly in the public interest that only those guilty of offences should be convicted and breach of this privilege carries with it great risks to the integrity and fairness of criminal and civil trials."

"The only situation in which private communications between lawyer and client should be capable of being spied on is when they are made in furtherance of a criminal purpose, and the law should reflect that principle."


Notes to editors:

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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