Simultaneous attacks on legal professional privilege by the UK and French governments provided the background to an historic agreement signed yesterday between legal representative bodies in England and Wales and France.
A memorandum of understanding agreed by the Law Society and the Conseil National des Barreaux (CNB), the national body representing lawyers in France, recognises a joint commitment to the rule of law, human rights and access to justice.
The two organisations will also 'engage in ongoing and effective dialogue on the regulation of foreign lawyers in their respective jurisdictions'.
Signing the agreement, Pascal Eydoux (pictured), president of the CNB and Jonathan Smithers, Law Society president, stressed the importance of legal professional privilege. 'It is essential to the trust citizens place in justice,' Eydoux told a seminar in Chancery Lane.
However the event heard examples of privilege coming under attack from both governments.
Florent Loyseau de Grandmaison, vice-president of the CNB human rights and civil liberties committee, said that lawyer-client confidentiality had been rendered meaningless by the state of emergency imposed by the government after the Paris terrorist attacks of 13 November. It was last month extended to 26 May.
'In France today the security services are entitled to listen to communications without any prior notification,' de Grandmaison said. 'Police rules rank higher than lawyers’ rules,’ he added.
'The state of the law today is that we cannot assure clients that at some point and some time their information will not come out.’
Professional privilege specialist Colin Passmore, senior partner at international firm Simmons & Simmons, said that the investigatory powers bill currently before parliament would set a 'malignant precedent' in expressly permitting breaches of professional privilege.
He condemned as meaningless a government promise that interception would be allowed only where 'necessary and compelling'.
The existence of an express power 'is likely to mean that it will be used more often than not', he said. Alongside the new law increasing pressure from investigatory bodies on clients to waive confidentiality means 'privilege is being slowly undermined in this country'.
Also on the seminar agenda was business and human rights, in particular the two countries' different approaches to implementing elements of the UN Guiding Principles on Business and Human Rights into legislation.
A law expected to be passed in France in June will require companies employing more than 5,000 people in France to show they have audited their suppliers for safety risks, Anne Vaucher, chair of the CNB's human rights commission said.