Bar Council Annual Report 2016-17

Aim 1 - Legal Professional Privilege

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Legal Professional Privilege

Investigatory Powers Bill

The Bar Council led a multi-stakeholder campaign targeting Government, Parliament and the media to amend provisions of the Investigatory Powers Bill in order to limit state surveillance of legally privileged communications.

The position presented by the Bar Council, Law Society, CILEx, The Bar of Northern Ireland, Faculty of Advocates, Liberty and Justice, was that legally privileged material should never deliberately be targeted and should be destroyed if obtained inadvertently.

Having engaged with the Government extensively during pre-legislative scrutiny, the Bar Council’s Surveillance and Privacy Working Group worked with MPs and Peers from across all the main parties to draft and support amendments to the Bill in both Commons and Lords committees.

The Bar Council also produced a ‘Speak in Safety’ event chaired by Joanna Cherry QC MP with the National Union of Journalists, the Law Society, and the All Party Parliamentary Groups on Legal and Constitutional Affairs and on the Rule of Law. Speakers included David Anderson QC (then the Government reviewer of terrorism legislation) and former Director of GCHQ, Sir David Omand. The aim of the event was to draw attention to the implications of the surveillance provisions that the Government sought to enact through the Bill.

Whilst the Government was not willing to accept the Bar’s position that legally privileged material should never be targeted, the campaign resulted in a threshold test whereby such communications could be targeted only in exceptional and compelling circumstances, and where there is a threat to life, limb or national security.

Looking ahead

In April 2017, after the Investigatory Powers Act had received Royal Assent, the Bar Council responded to the Government’s consultation on codes of practice where, amongst other things, it recommended legal training for those who authorise surveillance warrants, and sought recognition that certain communications data can be subject to legal privilege.

The Bar Council awaits the Government response, and the publication of further codes of practice relating to the Act.

Draft Finance Bill

In January 2017, the Bar Council wrote to Her Majesty’s Revenue & Customs (HMRC) setting out amendments to the anti-money laundering and tax avoidance enabler provisions of the draft Finance Bill 2017, to prevent barristers from being unfairly penalised for maintaining legal professional privilege or advising on the law.

Looking ahead

These parts were dropped in the final version of the Finance Act 2017, although their re-introduction to Parliament is anticipated and the Bar Council will again engage constructively with the Government to ensure that legal privilege is not undermined.

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Luke Robins-Grace
Senior Communications Adviser 
0207 630 4689