In taking on the government over new legislation, which is focused primarily on intercepting communications, the battle for Legal Professional Privilege (LPP) has been keenly fought. In large measure, the lawyers who championed LPP can claim victory. Through their efforts, the new Investigatory Powers Act 2016 (IPA), which came into force on 1st January, was significantly altered while still a Bill in parliament.
But looking ahead, the key spokesman for the solicitors’ profession, Robert Bourns, remains concerned about the potentially damaging effects of the IPA: as President of the Law Society, the independent body for the profession, he represents the interests of 138,000 practising solicitors in England & Wales.
An abstract concept, LPP belongs to the client, not the lawyer – clients implicitly trust their lawyers because LPP protects their communications with them and prevents any disclosure being made without their consent. Bourns explains how it works in practice.
‘LPP is fundamentally important to the administration of justice,’ he says. ‘The vast majority of transactions, whether commercial, personal, or in the resolution of disputes, are dealt with through the use of advisors, and principally, solicitors. We rely upon certain levels of behaviour and assumptions in relation to our level of knowledge, when we are engaged by a client to undertake work on their behalf. This is dependent upon a belief and a confidence that you are being given comprehensive instructions by your client so you can advise them properly.’
Why then is LPP critical? ‘It is fundamental to clients’ willingness to tell you all that there is to be told about their particular circumstances, whether that is personal or commercially sensitive information,’ he explains. ‘They must have confidence that both their communication of that information to you and the advice that they then receive from you, is going to be regarded as confidential between the two of you. It is the foundation that we rely upon to enable us to continue to operate as a functioning society and a functioning economy.’
When the IPA was still a Bill, the Law Society, together with the Bar Council and other groups, fought very hard to remove some of the draconian sections which served to undermine LPP. ‘Governments have many priorities; I’m not sure that LPP is always at the top of the checklist,’ says Bourns. ‘We were very concerned that the Bill started off without any reference to LPP at all, so it was completely unprotected.’
The Law Society was very actively engaged, and after they had given evidence to a Parliamentary Committee, it was decided that LPP would be included in the Bill.
‘But,’ says Bourns ‘there was no provision to provide explicit protection. We didn’t regard subordinate regulation as being in any way, shape, or form adequate – in fact it arguably could have been a worse situation.’ He was gratified that the government was then prepared to engage in further consultation and consideration of how protection would be provided, which resulted in ‘a much improved position.’
Now in force as an Act, the LPA ‘obviously relies upon an exceptionality and a recognition of the public interest test,’ adds Bourns. But he cautions: ‘It does contemplate and permit information that represents LPP that is otherwise protected to fall within the hands of the security services or others. We therefore have to anticipate that there will be necessary litigation in relation to the balance of public interest in certain circumstances.’
He sees litigation as inevitable as a consequence of competing objectives: the government wants the Act to assist the security services in their work while lawyers want their clients to retain their privilege. In some circumstances, both objectives cannot be fulfilled. So does he think that politicians sometimes fail to understand the implications of the new legislation on LPP?
‘Candidly, yes,’ he says. As an example, he points to the parliamentary committee which was investigating the collapse of BHS. In the MPs’ report, published in July 2016, Linklaters and Olswang were among the named advisers that “are all culpable” for the collapse of BHS. In response, Bourns is animated: ‘They openly criticised the solicitors for the players in that investigation for not breaching client confidentiality. How could they? So we (the Law Society) need to be there, fairly continuously. It’s partly a process of education, it’s partly an active engagement in protecting LPP.’
Bourns points to a wider complacency. ‘We live in an environment, where we are extremely fortunate in being able to take certain things for granted,’ he says. ‘That’s where a lot of people are with LPP. There’s also an assumption that there is something unattractive about that degree of confidentiality. But iniquity is the exception – there is no privilege in communication between a lawyer and a solicitor that is effectively unlawful. For example, advancing a criminal conspiracy would not be privileged information.’
Moving forward, Bourns is still concerned that the significance of LPP should not be overlooked or undermined. He would be ‘inclined for the Law Society to intervene in circumstances where we saw there was an LPP issue that should be tested. That is something we have an obligation to do in the public interest – it’s part of our charter.’
Another of his concerns is the conflation of solicitors’ interests with client interests, which he suggests, is increasingly common. He adds, pointedly: ‘We owe a higher duty to the administration of justice that connects to our stewardship of LPP because there are circumstances where a solicitor will receive information from a client and say: ‘The objective you seek cannot be achieved, or we cannot act for you.’ That is an important part of being a professional, and an important role for this Society to play in reminding and promoting that value both within and beyond the profession.’
Bourns’ legacy – he retires as Law Society President in July – will be to ensure that the fight for LPP goes on.
By Dominic Carman, legal journalist