The jurisdiction of England and Wales sounds at least three of the alarm bells warning of threats to legal independence set out in a major report from the International Bar Association.
In a draft report published in Washington DC, the International Bar Association’s presidential task force on the independence of the legal profession raises concerns about threats to legal professional privilege, regulators answerable to government and political attacks on lawyers acting in controversial cases.
Several are illustrated with a UK example.
Task-force chair Sylvia Khatcherian stressed that the report did not set out to benchmark individual countries. However, the Law Society welcomed the report as identifying areas where legal independence is under attack across the world – including in the UK.
Overall, the report, drawn up by 15 lawyers from Africa, the Americas, Asia and Europe, lists 10 ‘indicia of independence’, beginning with constitutional guarantees of judicial independence. It also provides a check-list of 34 common threats to them.
Among those present in England and Wales is ‘the proliferation of new categories of unregulated legal professionals who provide legal services’.
On regulation, the Legal Services Board features as an example of ‘external involvement in the regulatory scheme’. While this does not in itself harm the ability of lawyers to carry out their professional duties ‘where there is some executive control over the regulatory process the risk of infringements on lawyers’ professional independence is greater’.
The UK is also mentioned in the context of ‘media, community and political pressure at times of war, terror or emergency’.
The report notes that former prime minister David Cameron ‘has openly criticised several law firms who have undertaken the representation of victims of alleged abuse and unlawful killing in the hands of British soldiers’.
Urging the legal profession to stand together, Law Society chief executive Catherine Dixon said: ‘We must never take the independence of the legal profession for granted. In the UK legal professional privilege (LPP) is under attack.
‘The report also identifies a risk to independence of the legal profession in the UK because the oversight regulator, the LSB, is a body of government.
‘It is notable that in a recent LSB report outlining its vision of regulation this government body failed to recognise the importance of an independent legal profession, which if lost would undermine the very fabric of our society and our ability to maintain the rule of law.’
IBA president David W Rivkin (pictured) of New York-based firm Debevoise and Plimpton said that threats to independence occurred in developed as well as developing countries. ‘Growing threats to national security have led many governments to abridge liberties and not pay attention to attorney-client privilege’.
Bar chairman Chantal-Aimee Doerries said that while the UK still enjoyed an independent legal profession and judiciary, the price of its preservation is eternal vigilance. ‘It is imperative in this context and in the light of threats to legal independence that the legal profession stands together,’ she said.