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The right to speak in safety with a lawyer: in defence of legal professional privilege

1 August 2016

The turmoil caused by the EU referendum has dominated the political debate, inside and outside Westminster, for the last few weeks. However, it is business as usual in Parliament and both Houses are scrutinising the Investigatory Powers Bill introduced by the new Prime Minister, Theresa May, when she was still Home Secretary. 

The Investigatory Powers Bill is a substantial revision and modernisation of our current investigatory powers legislation, the Regulation of Investigatory Powers Act 2000 or RIPA. Although the Bill has important implications for the privacy of us all, a survey conducted by Liberty revealed that 72% of respondents knew nothing about it.

The Law Society has been influencing the law making process since the Bill started its parliamentary journey as draft legislation in November. At that stage, we expressed concern that it contained no protection for legal professional privilege (LPP). RIPA itself is also silent on LPP, but in 2009 the House of Lords ruled that legally privileged communications could be lawfully intercepted.

In our evidence to the Joint Parliamentary Committee reviewing the draft Investigatory Powers Bill we argued for protection of privileged communications. Our recommendation, strongly made on our behalf by Colin Passmore, Senior Partner at Simmons & Simmons, was accepted by the Committee. As a result, when the Bill was introduced to Parliament in March, it contained explicit provisions relating to LPP. Unfortunately, these provisions still allow the authorities to intercept privileged communications between lawyers and their clients. 

The Bill is now making its way through the House of Lords. The Law Society, along with the Bar Council, other professional bodies, and JUSTICE, has drafted amendments to the Bill, tabled on our behalf by Lord Pannick QC. Our amendments have received cross-party backing, a welcome indication of strong support for one of the fundamental principles of the rule of law: that people should be able to get legal advice from their lawyer in confidence and without fear of their communications being intercepted. 

The Government has signalled that it is taking our concerns seriously. Moving forward, the Law Society is committed to working with the Government and others to make sure that everyone’s right to receive legal advice in confidence remains a fundamental part of our justice system.