Protecting confidentiality

Alistair MacDonald QC on LPP and its historical origins; a client’s right of access to confidential advice; how RIPA overruled this principle of confidentiality; and the need for a robust, statutory framework.

The issue of legal professional privilege (LPP) has been prominently in the news recently and I wanted to share with you some of the things we have been doing to ensure that proper safeguards are in place for its protection.

To that end, there has been a great measure of unity between the Bars of England and Wales, Scotland and Northern Ireland and I was in Edinburgh to speak at a meeting to discuss LPP as part of the first European Lawyers’ Day.

I suspect that, unless you have to research the subject, or you are an expert in it, LPP is something that we all rather take for granted. We learn about it at our mother’s knee in the course of our legal studies and we make use of it every day in the course of our working lives without giving a lot of thought to its origins or the rationale for its existence.

In fact, it is a legal doctrine that goes back a very long way. Reference was made to it in a case of 1577 and it has been a bedrock of the rule of law, or so we thought, since. Lord Brougham said this in the case of Greenough v Gaskell [1833] 1 M and K 98: “The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors or any particular disposition to afford them protection ... But it is out of regard to the interests of justice, which cannot be pholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, everyone would be thrown upon his own legal resources, deprived of professional assistance, a man would not venture to consult any skilful person, or would only dare tell his counsellor half his case.”

If I may digress for a moment, how relevant are the words of Lord Brougham about the need for skilled legal advice in the light of the dismantling of legal aid in civil and matrimonial cases brought about by LASPO?

But returning to the point as far as LPP is concerned, the court made it clear that the privilege was that of the client and not the lawyer. The reason for the existence of the privilege was also set out with clarity.

It was so that the lay client could set out their case, warts and all, so as to receiv skilled, and confidential advice as to the strength of their position.

In the Morgan Grenfell case [2003 1AC 563, LPP was again considered and, in addition to the privilege conferred as part of common law rights, Lord Hoffman was clear that it formed part of the client’s Article 8 rights as well.

Finally, it was thought that there was one exception to this unfettered privilege; namely the so-called “iniquity exception” which means nothing more than that if the otherwise privileged communications were in furtherance of crime or fraud, they would not be protected. However, in a Northern Irish case called In Re McE [2009] UKHL 15, the Supreme Court considered two issues.

The first was the impact of RIPA 2000 on the common law right of legal professional privilege. The second was the impact of RIPA on the right of a person detained by the police to consult a solicitor in private. They held, with reluctance, that RIPA did permit covert surveillance of communications between lawyers and their clients, notwithstanding LPP and the statutory rights of people in custody to consult their lawyers privately.

It is important to recognise that the powers and duties conferred by RIPA to undertake this form of surveillance were to be exercised in accordance with codes of practice, which have been issued by the Home Secretary. The extent of surveillance has only recently become clear in cases such as that of Bel Hadj, which has demonstrated that LPP is now being breached on a regular basis.

The Paris murders by extremist gunmen who were known to the security and police services, have already attracted considerable support for an extension of surveillance powers. That surveillance can save lives seems undeniable. However, it is one of the objectives of extremists who are willing to commit barbaric crimes in support of purportedly religious or political ends, that the hard-won liberties of the civil population should be curtailed and that a wedge should be driven between those in society with different views about the degree to which personal freedoms should be sacrificed on the altar of public safety.

As a caring society, we cannot simply leave these issues to senior officers of the police and the security services acting purportedly under mere codes of practice. What is surely needed more than ever before is a rigorous statutory framework under which surveillance is authorized and conducted. To return to Edinburgh, and the first European Lawyers’ Day, that was the substance of a declaration made by the Bars of England and Wales, Scotland and Northern Ireland.

In addition, last week, I wrote to the Attorney General seeking the same result. I will update you when I receive a reply.

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