The melancholy fact

The melancholy fact of the existence of dishonest lawyers has led to the need, on occasion, to intercept the private communications between lawyers and their clients. The House of Lords has considered whether a statutory regime had the effect of overriding the client's right to private consultation: In re McE [2009] UKHL 15 (11 March 2009).

The majority (Lord Phillips dissenting) held that as a matter of interpretation the powers of surveillance contained in the Regulation of Investigatory Powers Act 2000[UK] ("RIPA") are capable of extending to the private communications between a lawyer and his client.

Baroness Hale referred to the general terms of s 27(1) of RIPA, which make covert surveillance under the Act "lawful for all purposes". She referred to the history of surveillance legislation, which had been introduced after the ECtHR had held that the House of Lords had been wrong in thinking that there was no privacy right attaching to telephone communications: Malone v United Kingdom (1985) 7 EHRR 14. The intention of the legislation is, as Lord Neuberger said at 110, that s 27(1) should be able to impact on Convention rights and on all rights.

The leading opinion was delivered by Lord Carswell, who addressed the two arguments advanced by the appellants. These were that the principle of legality pointed to a construction of RIPA that preserved the right to private consultation with a lawyer, and that the same construction was supported by the maxim generalia specialibus non derogant.

He held that the principle of legality, stated in R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115, did not apply here as it was most unlikely that Parliament had overlooked the possibility that privileged communications might be intercepted (100), and that the maxim did not assist, as there was no surveillance legislation when the private consultation rights were established (101). This latter point looks a little weak, and Lord Neuberger added (115) that the maxim could be applied the other way around from that advanced by the appellants. That too is a bit weak, and the stronger rationale for the majority's interpretation lies in necessity (per Lord Carswell at 102).

Lord Phillips dissented on the basis that if Parliament wishes to permit the interception of privileged communications it can say so expressly (41).

Lord Neuberger referred to "the melancholy fact" (117)

" ... that there are dishonest lawyers, and it is therefore positively consistent with the permissible purpose of RIPA, and indeed with the public interest, that their freedom of action be curtailed, and that their abuse of their clients' rights of privilege and rights to privacy be exposed, and, where appropriate, punished. That applies as much to lawyers with clients in custody as to those with clients at liberty."