Confidentiality under threat

New legislation could undercut lawyer-client confidentiality, lawyers have warned as Parliament gears up to debate the Investigatory Powers Bill.

The Bar Council, Law Society and other professional bodies made an appeal last week to MPs and Peers of all parties to make sure the Bill does not put lawyer-client confidentiality under risk. Their briefing calls for legal professional privilege to be given statutory protection in the Bill.

The government has not yet revealed what exactly the Bill will propose. However, lawyers fear it could enable public authorities to snoop on communications between clients and their lawyers.

They point out that privilege does not apply where the lawyer-client relationship is being abused for a criminal purpose, and call for a system of prior judicial authorisation for all covert information-gathering by a public authority.

Alistair MacDonald QC, chair of the Bar, says: “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 eavesdropped 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 must make sure that legislators do not sleep-walk into approving a bill that would corrupt the administration of justice.”

Jonathan Smithers, president of the Law Society, says: “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.”