The government has indicated that legal professional privilege will be protected in its planned statutory register of lobbyists.
The Cabinet Office yesterday published a consultation on the register and what it will include.
Section four of the draft statutory instruments says the registrar may not require a person to supply information on ‘any communication between a professional legal adviser and the adviser’s client’ in connection with the giving of legal advice.
The registrar will also not be able to demand to see communications between lawyers and clients ahead of legal proceedings, such as a tribunal.
The draft regulation states the term ‘professional legal adviser’ covers anyone representing a client.
The consultation document says: ‘In draft regulation four we have made provision that the registrar may not request the communications which are subject to legal professional privilege.
‘This is to guarantee the long-standing confidentiality of such protected material and ensure that legal advice can be given freely without fear of it being disclosed to the registrar in the future.’
Information covered by legal professional privilege is likely to be the only category of information the registrar is prevented from seeing.
The consultation proposes that the registrar may serve an information notice on ‘any registered person’ (for example a registered consultant lobbyist) or any person who is not entered in the register but whom the registrar has reasonable grounds for believing to be a consultant lobbyist.
The Cabinet Office proposes that the register should be funded by the lobbying industry through a flat-fee subscription charge.
The registrar, set to be appointed this autumn, will have the power to impose charges, which will be the same no matter what the size of business involved.
The regulations will come under the recently enacted Transparency of Lobbying, Non-party, Campaigning and Trade Union Administration Act.
Iain Anderson, chairman of the Association of Professional Political Consultants, said the group supported the proposal to protect legal privilege but had objections to the funding proposals.
He added: ‘The APPC’s main concern with the draft proposals is that at this stage the consultation is proposing a flat fee for registrants, regardless of consultancy size, for funding the register. This is likely to be concerning for many potential registrants.’
The protection of legal professional privilege – and its implications for a potential conflict of interest between adviser and client – was a key concern of the in-house sector in the drafting of the legislation.
Four years ago the European Court of Justice ruled that in-house counsel had no right to legal professional privilege in a cartel investigation carried out by the European Commission.
The judgment followed a bid by paint manufacturer Azko Nobel to clarify the status of in-house lawyers.