Bar Council response to Ministry of Justice Parliamentary answer

Justice Minister Andrew Selous MP has explained the authorisation process for listening in to communications between lawyers and clients in prisons.

The parliamentary written answer, published yesterday, suggests that the prison service effectively self-authorises breaches of legal professional privilege (LPP).

Peter Carter QC, Chair of the Bar Council's Surveillance and Privacy Working group said:"This latest revelation about the loose standards governing the authorities' approach to lawyer-client communications underlines the importance of placing protections for legal privilege firmly in the statute books. That means making provision for LPP on the face of the Investigatory Powers Bill, rather than in codes of practice which will not fully be scrutinised by Parliament.

"It is not clear from this statement that those responsible for authorising interception of communications between prisoners and their legal advisers are qualified to understand the meaning or purpose of LPP, or correctly to identify when it is in effect.

"The interception of communications that are potentially covered by legal privilege should be subject to authorisation by an independent judge.

"Where the confidentiality of conversations between clients and their lawyers is not guaranteed, those accused of crimes, and potential witnesses, can be deterred from discussing fully their case with a legal representative.  That undermines the fairness of the trial process.

"Everyone must have the right to consult with their lawyer in private. Prisoners should not be treated as exceptions to that rule."

Communications which threaten prison discipline or are intended to further crime are not protected by LPP. Only when there are reasonable grounds to believe that the communication is for either of those purposes would interception be legitimate.

The Government is invited to provide anonymised details of the instances when such authorisation has been granted in order for Parliament to consider whether the correct test is being applied.


Written answer

Question:To Ministry of Justice: Tabled on: 05 January 2016
To ask the Secretary of State for Justice, what discussions he has had with the Home Secretary on proposed legislative steps to protect legally privileged communications from surveillance. (20942)

Answer: Parliamentary Under-Secretary (Ministry of Justice) Andrew Selous:
Policy responsibility for this area lies with the Home Office. The National Offender Management Service (NOMS) has powers to intercept prisoners' communications in specific circumstances.

Section 4(4) of the Regulation of Investigatory Powers Act 2000 (RIPA) provides that the interception of communications in prisons is authorised where the conduct is in exercise of a power conferred by the Prison Rules. The Prison Rules allow for interception of a prisoner's communications if it is necessary on certain specified grounds and proportionate to what is sought to be achieved. The Prison Rules do not permit interception of a prisoner's communication with the prisoner's legal adviser, unless the governor of the prison has reasonable cause to believe that the communication is being made with the intention of furthering a criminal purpose and unless authorised by the Chief Executive Officer of NOMS; the director responsible for the national operational services of NOMS; or the duty director of NOMS.

Notes to Editors 

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