Act of Parliament on surveillance must protect 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 Chairman of the Bar, Alistair MacDonald QC, responding to today's intelligence and security report.
He said: "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.'
"The Government recently admitted that the security services breached Articles 6 and 8 of the European Convention on Human Rights which relate to privacy and a fair trial. An overhaul of surveillance legislation cannot come soon enough."
The Government's admission was made as it became known that the Bar Council of England and Wales, the Bar Council of Northern Ireland and the Faculty of Advocates in Scotland had given notice that they proposed to intervene in the on-going Belhaj case, during which security agency policies were disclosed. Those disclosures revealed the lack of protection for legal professional privilege.
"Existing rules governing how security agencies spy on UK citizens are made up from a mix of judgments, policies and codes of conduct. Primary legislation is essential in order for Parliamentarians fully to debate and clarify the law and to set clear boundaries for surveillance activity.
"Access to professional data, including that covered by legal professional privilege, should be protected in law and be subject to independent, judicial oversight. We look forward to engaging with stakeholders and Parliamentarians to ensure any forthcoming legislation provides the right level of protection."
Communications between lawyer and client are subject to legal professional privilege. If the state eavesdrops on privileged communications to gather intelligence, clients will feel unable to speak openly with their lawyers, which will damage their case, and could wreck it.
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.
While the ISC report addresses the law as it relates to the intelligence and security Agencies, the same arguments clearly apply to other public authorities such as the police and other law enforcement agencies, and we await the further reports covering similar ground which will arrive in the next few months from David Anderson QC, the Independent Reviewer of Terrorism Legislation, and the Royal United Services Institute.