The Law Society will continue to vigorously counter a range of threats to legal professional privilege, writes president Robert Bourns.
Legal professional privilege (LPP) is at the very heart of the relationship solicitors have with our clients. It is the trust that the law guarantees them, so that they may let us into the most intimate details of their personal and professional dealings, safe in the knowledge that what they reveal to us will go no further.
Without that assurance, clients may hold back vital information from their solicitor, seriously damaging our ability to represent them and their confidence in the rule of law.
It is therefore with growing concern that we have seen a range of threats to this vital legal institution in recent months, alongside an inclination to misrepresent and denigrate the principle.
The Investigatory Powers Bill, which is currently being considered by the House of Lords, was first drafted without express protection for LPP, potentially allowing police and intelligence agencies wide powers to access privileged information.
Consideration by the Financial Conduct Authority (FCA) of the way in-house solicitors might be covered by its new accountability regime also threatens privilege, by risking creating a situation where senior in-house lawyers might be compelled to break privilege. This could occur when in the course of an investigation into the actions of in-house lawyers the FCA needs access to privileged material, or the solicitor needs to disclose privileged material to defend themselves.
Recent comments by two parliamentary committees investigating the collapse of BHS also raised complex questions, when they criticised the witnesses before them for refusing to waive privilege. Does the supreme place of parliament in our constitutional system, and the considerable public interest in the issues it enquires into, justify pressuring people into waiving their legal rights? What sort of message does it send if they do?
Finally, recent proposals by the Solicitors Regulation Authority to allow solicitors to work for unregulated entities offering some legal services to the public further threaten LPP. As this advice may not be covered by privilege, this would both leave the clients exposed and without the protection they would expect to have, and put at risk the trust the public must have in the sanctity of their communications with their lawyer.
This final proposal is especially concerning not only for the threat it poses to LPP, but the fact that it comes from the regulator of solicitors, a body we would expect to intuitively understand the importance of protecting LPP.
As each threat has emerged the Law Society has been quick to respond. The constructive and considered response we’ve had from the government to these issues is allowing us to work towards solutions that protect LPP without defeating the important public policy objectives the government has.
For example, the government has already made changes to explicitly protect LPP in the Investigatory Powers Bill in response to our concerns, and is continuing to engage with us, the bar, and other legal experts to ensure these protections are adequate.
However, we must remain vigilant. This privilege is a cornerstone of our legal system, and the consequences of its being diminished profound. The Law Society will continue to stand up to any proposal that threatens LPP.
Robert Bourns is Law Society president