Extending the privileged few

Penny Hamilton looks at the legal privilege debate and finds that European and common law carry most weight in the argument for extension

I have long thought that legal professional privilege (LPP) should attach not only to lawyers, but to all professionals giving legal advice.

Much of the recent debate on the subject has concentrated on the issue of discrimination.

But discrimination is not the only argument for extending LPP.

Nor, for a number of reasons, is it the best one.

First, it can obscure the vital point that the privilege is primarily that of the client, not the adviser.

It also smacks of self-interest on behalf of advisers, which is unlikely to attract much sympathy.

Any argument based wholly on discrimination could be demolished at a stroke by abolishing LPP altogether, which would be to nobody's advantage.

Fortunately, it is not necessary to rely on the discrimination issue alone.

There are other, even more cogent, arguments based on both common law and European law.

The scope of LPP was ventilated before the House of Lords in the recent case of R v Special Commissioner, on the application of Morgan Grenfell & Co Ltd [2002] STC 786.

In his judgment, Lord Hoffmann observed that LPP 'is absolute and is based not merely on the general right to privacy but also on the right of access to justice'.

He referred to the earlier case of R v Derby Magistrates Court ex parte B [1996] AC 487 in which the Lords traced the development of LPP and its rationale in common law.

Having reviewed a number of authorities, Lord Taylor concluded: 'The principle which runs through all these cases...

is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth.

The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent.

Legal professional privilege is thus much more than an ordinary rule of evidence...

It is a fundamental condition on which the administration of justice as a whole rests.'

Although it was decided as early as 1792 that LPP is confined to 'counsel, solicitor and attorney', the world has changed since.

Other professionals, such as chartered tax advisers and chartered accountants, now have right of audience before some tax tribunals, and have direct professional access to counsel for all advice and some litigation.

Any member of the revenue bar can confirm that the nature of the advice sought and given differs little, if at all, whether it be a solicitor or another professional seeking it on behalf of a client.

Legal professional privilege is unlikely to be extended by statute, because no government would have the appetite to fetter the powers of its investigating and revenue-collecting authorities.

Moreover, the reality is that no court, short of the House of Lords, would be likely to upset years of precedent and extend LPP on the basis of the common law alone.

However, what may be the deciding factor is the impact of European law, and particularly the human rights legislation.

In Morgan Grenfell, Lord Hoffmann acknowledged LPP as 'a fundamental human right which can be invaded only in exceptional circumstances'.

At a seminar on LPP arranged last October by the Chartered Institute of Taxation, leading experts in the field concluded that there were good grounds in European law for extending LLP to other professionals.

Of particular relevance to tax advisers is article 8 of the European Convention on Human Rights, which gives a qualified right to respect for private and family life.

Article 8 applies to professional activities, and therefore protects both client and adviser.

Although the decided cases deal with communications with lawyers, the same principles could be applied equally to other professionals giving legal advice.

There seems to be nothing which would require a court to confine the right of professional confidentiality under article 8 to lawyers.

Ultimately, it will be the court, either here or in Strasbourg, which will decide.

Barrister Penny Hamilton is the president of the Chartered Institute of Taxation