Lawyers call for legal professional privilege to have statutory protection

The right to communicate with a lawyer without fear of having messages intercepted by the security services is a basic principle of the rule of law, says the Law Society.

Responding to the government's consultation on new property interference and interception of communications codes of practice, the president of the Law Society, Andrew Caplen, said that the potential for surveillance of lawyer-client communications could have a chilling effect.

'Suspecting that you cannot speak to your lawyer candidly or advise your client confidentially is corrosive of the entire legal process.'

He continued: 'The Law Society has long called for review and reform of the legislative framework for surveillance in the UK and for statutory guarantees recognising the importance of client-lawyer confidentiality.

'Now even the Parliamentary Intelligence and Security Committee has called for reform and we agree. Legal professional privilege is a fundamental common law right that underpins basic human rights including the right to a fair trial. The next government should move quickly to protect it.'

The Bar Council has also responded to the Home Office consultation and called for primary legislation to enshrine the protection of legal professional privilege.

'If parliament passes new laws on surveillance and intelligence, conversations between lawyers and clients must stay out of bounds for the security services,' said the chairman of the Bar, Alistair MacDonald QC, responding to the recent intelligence and security report.

'The committee is absolutely right: security service intrusion should not be "unconstrained" and privacy should only be compromised where there is "lawful purpose" and where it is "determined to be necessary and proportionate",' he added.

The Bar Council has insisted there must be a fundamental reform of the Regulation of Investigatory Powers Act 2000 (RIPA) and surveillance laws more generally.

The Bar Council states that where agencies suspect communications between lawyer and client are being used for the furtherance of criminal activity, they must consult an independent lawyer before proceeding with surveillance.

In addition, the council feels that the bar for targeting privileged information is too low, with threat to 'life or limb' and 'national security' covering an 'ill-defined range of circumstances'. The council instead proposes a higher threshold of 'an imminent threat of death or serious injury, or a severe threat to national security'.

Further, when presented with an application to intercept privileged information, the Bar proposes that the Secretary of State must consider alternatives before granting permission. Inadvertently intercepted material must be securely destroyed.

Finally, the council argues that the government's proposal that a lawyer not be consulted 'other than in exceptional circumstances' does not treat the material with sufficient sensitivity and does not serve as an appropriate standard.

The consultation comes after a recent case against the security forces, which was brought by Abdel Hakim Belhaj, a Libyan opponent of the former Gaddafi regime. MI5, MI6, and GCHQ conceded that 'from January 2010, the regime for the interception/obtaining, analysis, use, disclosure and destruction of legally privileged material has not been in accordance with the law for the purposes of Article 8(2) of the European convention on human rights and was accordingly unlawful'.

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