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Private Legal Advice Must Be Protected

Private Legal Advice Must Be Protected

Following a report published today by Her Majesty’s Inspectorate of Constabulary (HMIC) on the use of undercover police officers, the Bar Council, which represents barristers in England and Wales, has urged the Government to protect the fundamental right of citizens to hold private conversations with their lawyers.
 
The issue has been debated at Committee and Report Stages of the Protection of Freedoms Bill in the House of Lords. An amendment, proposed by Baroness Hamwee at the suggestion of the Bar Council, would protect legal professional privilege (LPP) in all but those circumstances where it is being abused in furtherance of criminal purpose. It would bring the Regulation of Investigatory Powers Act 2000 (RIPA) in line with existing legislation and would contribute towards the Home Secretary’s stated aim “to roll back the creeping intrusion of the state into our everyday lives”. The amendment was opposed by the Home Office Minister, Lord Henley, and subsequently withdrawn.
 
Michael Todd QC, Chairman of Bar, said:
 
“Today’s report by HMIC emphasises the need for stricter and more coherent rules around the surveillance of individuals by the state. Unfortunately, it does not address a key concern raised by the case of DC Kennedy: that he may have been privy to legally privileged communications between fellow defendants and their lawyers and could have passed that material to the Crown.
 
“It is extremely disappointing that the Government has not so far taken the opportunity presented by the Protection of Freedoms Bill to reassert the fundamental right of an individual to consult their lawyer in private. This is a right which was unintentionally eroded by RIPA, as confirmed by the 2009 House of Lords judgment In Re McE.
 
“RIPA contains no express provision about legal privilege, so the issue was not debated when the legislation was considered by Parliament. Whenever Parliament has had an opportunity to consider LPP, it has consistently voted to protect it, subject to the provisions contained within the proposed New Clause.
 
“The Government’s response to Tuesday’s debate, when Baroness Hamwee moved the New Clause and spoke forcefully of its importance, was very worrying. The Government appears to want to continue to be able to erode this fundamental human right for investigatory purposes. In our view, this is unacceptable. We urge the Government to address this issue again. The Bar Council will continue to pursue this matter forcefully, in the public interest.”

 

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