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Lawyer Lords speak up for legal privilege

By Michael Cross »

(5 July 2016)

Distinguished legal figures on the red benches lined up to condemn threats to professional privilege posed by the government’s investigatory powers bill as it passed its second reading in the House of Lords last week.

During the debate, peers echoed concerns raised by the Law Society and other professional bodies about the lack of statutory protection for communications between lawyers and their clients.

Cross-bencher Lord Pannick (David Pannick QC) said that the bill provided only ‘piecemeal’ protection for legal professional privilege. He accused the government of wanting to allow the authorities to listen in to legal advice and to use privileged information where there is no reason to think that the ‘iniquity exception’ applies.

‘To allow the authorities access to genuinely privileged information would inevitably mean that clients could no longer be guaranteed confidentiality by their lawyers. This would inevitably deter clients from speaking frankly to their lawyers and therefore undermine the rule of law,’ he said.

He called for protection to be written on the face of the bill and for the test for interception of privileged communications to be ‘a high one’ involving ‘exceptional and compelling circumstances’.

LibDem peer Lord Lester (Anthony Lester QC) said that where compelling evidence suggests that privilege is being abused, a judicial commissioner should be required to authorise covert information-gathering: ‘There should be no grant or modification of a warrant likely to capture privileged communication unless there is prior judicial approval.’

He noted that such protection is already written into the bill in respect of journalists’ sources.

Introducing the debate, Earl Howe, Lords defence minister, said that the proposed measure ‘strengthens checks and balances’.

[Courtesy: The Law Society Gazette]