Society and Faculty call for better client confidentiality protection

Stronger protections for lawyer-client communications are called for by both the Law Society of Scotland and the Faculty of Advocates, in submissions published today.

Responding to a Home Office consultation on updated draft codes of practice for the interception of communications, in relation to the protection afforded to communications attracting legal professional privilege, the Society calls for such communications to be protected from interception except in exceptional circumstances and under warrant authorised by a court of law, while Faculty also believes there should be specific protections in primary legislation.

The code contains provisions for when intercepted material is disclosed to a prosecutor, and to a judge, having been obtained by warrant under s 8 of the Regulation of Investigatory Powers Act 2000. Under the Act, the Secretary of State can issue a warrant to intercept such communications in exceptional circumstances, without seeking authorisation from the courts.

Alistair Morris, President of the Society said: “Lawyer-client confidentiality is a legal principle which has been recognised for over 400 years. A client must have complete faith in their lawyer and have confidence that whatever they disclose will remain confidential. Anything less would undermine the rule of law and our justice system.

“We welcome this updated code of practice and enhanced safeguards, which we hope will ensure that the principle of legal privilege remains protected. However, it is unacceptable that a breach of this privilege can be made by the Secretary of State without recourse to the courts. This fundamental right must be protected by judicial oversight, and as such the Secretary of State, or indeed relevant Scottish minister, should be required to obtain the appropriate authorisation from a court of law before issuing a warrant to intercept.”

In its submission the Faculty of Advocates also welcomes the revised code as a "step in the right direction", but claims that more needs to be done. 

“Given the constitutional importance of legal professional privilege, it should be specifically protected in primary legislation, by making clear that the deliberate targeting of legally privileged communications and material is unlawful, while continuing to permit the authorities to seek access to such communications and information if the lawyer-client relationship is being abused for a criminal purpose", Faculty states.

“The Faculty recognises the difficult and sensitive work which the security services, and other agencies involved in law enforcement, perform, and the importance of that work. The issue is, however, a structural one – about the proper relationship between the state and the citizen in a free society committed to the rule of law, and the way that this should be articulated and defined in legislation.

“The Faculty would be glad to work constructively with Government and with others, with a view to securing proper protection of legal professional privilege in primary legislation. Pending change in the law, it is important that the protections for LPP material should be as robust and transparent as possible."

Click to view the Society's response and the Faculty's response.