With the fast approaching Investigatory Powers Bill, the Law Society of England and Wales together with the Bar Council, is calling for privileged communications between lawyers and their clients to become protected by statute. The UK professional bodies are paper on the topic, which specifically focuses on balancing privacy and security.
The joint statement from Law Society and Bar Council suggests that:
1. Legal professional privilege is a vital principle of the administration of justice. It is the mark of a democratic society that citizens can consult a legal adviser in absolute confidence that the information they exchange will not be disclosed without the client’s authority. There are safeguards to prevent the abuse of legal professional privilege for criminal purposes.
2. The current legal framework for the exercise of investigatory powers is not fit for purpose. Next month’s Investigatory Powers Bill is an opportunity to consider and debate a new law.
3. The new law should expressly protect legal professional privilege from the activities of public authorities seeking to use investigatory powers, including the acquisition of communications data.
4. The new law should make clear that the deliberate targeting and use of legally privileged information is unlawful.
5. Protecting legally privileged communications would not pose any risk to legitimate investigations because legal professional privilege does not apply where the lawyer-client relationship is being abused for a criminal purpose.
6. More generally, the new law should include a system of prior judicial authorisation for all covert information-gathering by a public authority.
7. Bulk interception of communications or retention of communications data is questionable in a democratic society, but if such powers are approved by parliament, there should be special provisions to protect privileged communications between lawyers and their clients.
Commenting, current Law Society President, Jonathan Smithers, stated:
‘Legal professional privilege protects a client’s fundamental right to be candid with their legal adviser without fear that someone is listening in or that what they say will be disclosed to their prejudice.
‘The absence of explicit protection for legal professional privilege in earlier surveillance legislation has been of long-standing concern to the Law Society. Documents released before the Investigatory Powers Tribunal earlier this year illustrated the inadequacy of the existing legislation.
‘The government now has the opportunity to debate legislation that gives statutory protection to the client-lawyer relationships that a civilised society depends on, while including safeguards against abuse for criminal purposes.’
Also commenting, Bar Council Chairman, Alistair MacDonald QC, stated:
‘Intelligence agencies must not be allowed to spy on communications between clients and their lawyers. When you are defending yourself against the state or find yourself in a dispute against a public authority, it would be grossly unfair for them to listen in on conversations with your lawyer.
‘We have seen too many examples of prosecutions wrecked because it was found that a public authority had eaves-dropped on a conversation that should have remained private.
‘This is not special pleading for lawyers; the privilege is that of the client. Legal professional privilege has existed for centuries to enable clients to have a fair trial. We will be studying the draft Investigatory Powers Bill closely in the hope that it provides sufficient protection for privileged communications and the associated meta-data, which reveals information such as who sent it, when, where and from which device.
‘No argument at all has been made as to why privilege should be revoked and we must make sure that legislators do not sleep-walk into approving a bill that would corrupt the administration of justice.’
For more information, please visit: https://www.lawsociety.org.uk/news/press-releases/lawyers-call-for-statutory-protection-of-lawyer-client-communications/
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