Law Society and Faculty respond to Home Office consultation on interception of communications

Communications between lawyers and their clients must not be intercepted except in exceptional circumstances and under warrant authorised by a court of law, the Law Society said today.

Currently, the secretary of state can issue a warrant to intercept such communications in exceptional circumstances, without seeking authorisation from the courts.

Alistair Morris, president of the Law Society of Scotland said: “Lawyer-client confidentiality is a legal principle which has been recognised for over 400 years.

“A client must have complete faith in their lawyer and have confidence that whatever they disclose will remain confidential.

“Anything less would undermine the rule of law and our justice system.

“We welcome this updated code of practice and enhanced safeguards, which we hope will ensure that the principle of legal privilege remains protected.

“However, it is unacceptable that a breach of this privilege can be made by the Secretary of State without recourse to the courts.

“This fundamental right must be protected by judicial oversight, and as such the secretary of state, or indeed relevant Scottish minister, should be required to obtain the appropriate authorisation from a court of law before issuing a warrant to intercept.”

The Faculty of Advocates offered to work with UK government towards legislation which would protect lawyer-client confidentiality against surveillance by the intelligence and security services.

In its submission to the UK government, the Faculty said that legal professional privilege (LPP) was a cornerstone of the administration of justice in a society governed by the rule of law.

It commended as a “step in the right direction” new draft Codes of Practice to be applied to intelligence and security agencies under the Regulation of Investigatory Powers Act 2000, but sounded a warning that more needed to be done.

“Insofar as the draft Codes improve the protection given to LPP material, they represent a step in the right direction. However, they do not go far enough in protecting lawyer-client confidentiality,” said the Faculty, in response to a consultation on the draft Codes.

“Given the constitutional importance of legal professional privilege, it should be specifically protected in primary legislation, by making clear that the deliberate targeting of legally privileged communications and material is unlawful, while continuing to permit the authorities to seek access to such communications and information if the lawyer-client relationship is being abused for a criminal purpose.

“The Faculty recognises the difficult and sensitive work which the security services, and other agencies involved in law enforcement, perform, and the importance of that work. The issue is, however, a structural one – about the proper relationship between the state and the citizen in a free society committed to the rule of law, and the way that this should be articulated and defined in legislation.

“The Faculty would be glad to work constructively with Government and with others, with a view to securing proper protection of legal professional privilege in primary legislation. Pending change in the law, it is important that the protections for LPP material should be as robust and transparent as possible…

“If a lawyer is to fulfil his or her proper function within the framework of a society governed by the rule of law, it is essential that clients are free – and, as importantly, feel free – to speak frankly and candidly to their lawyers, and lawyers are free – and feel free – to give candid advice to clients.”

The Faculty stressed that lawyer-client communications which were in furtherance of crime or fraud were not covered by LPP.

Therefore, a prohibition on the deliberate targeting or the retention of LPP material “ought not to inhibit the security services in detecting and preventing serious crime.”

The full paper can be read here.