Legal professional bodies today called for formal measures to protect professional privilege following a reported admission by the government that its policies governing the interception of communications between lawyers and their clients were unlawful.
The admission was made in submissions to the Investigatory Powers Tribunal, which is hearing a case brought by Libyans Abdul Hakim Belhaj (pictured) and Fatima Boudchar, who were rendered to Libya in 2013 in a joint operation by UK and US security forces.
Belhaj and Boudchar filed a case with the tribunal in 2013 alleging that UK intelligence services had eavesdropped on confidential communications between them and their lawyers while the pair were in detention.
Last November, the government was forced to release documents showing that such interceptions had taken place.
Legal activist charity Reprieve has today released emails from the Treasury Solicitor's Department which state the practice was not compatible with the European Convention on Human Rights.
The email said: 'The respondents accept that since January 2010 the policies and procedures for interception/obtaining, analysis, use, disclosure and destruction of legally privileged material have not been in accordance with human rights legislation specifically article 8(2) of the ECHR.'
The Libyans’ lawyer, Cori Crider, of Reprieve, accused the government of allowing intelligence agencies free rein to spy on communications between lawyers and their clients.
The Law Society said the documents released before the tribunal illustrate the inadequacy of the existing law. ‘The absence of explicit protection for legal professional privilege in the Regulation of Investigatory Powers Act 2000 (RIPA) has been of longstanding concern to the Law Society and we have raised our concerns with the Home Office.
‘Legal professional privilege protects a client’s fundamental human right to be candid with their legal adviser without fear of later disclosure to their prejudice. Legal professional privilege is essential to the administration of justice and a pillar of rule of law.’
Its concerns were echoed by the Bar Council. ‘Spying on conversations protected by legal professional privilege is fundamentally unacceptable and constitutes a breach of the rule of law in all but a handful of highly exceptional cases,’ said Alistair MacDonald QC, chairman of the bar.
Recent anti-terror measures ‘drove a truck through this centuries’-old principle’, he said.
‘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, and the law should reflect that.’