Does the new Data Use and Access Bill risk you losing Legal Professional Privilege?

Legal Professional Privilege is an essential safeguard in our legal system. Lawyers talk of privilege as an absolute right, which belongs to the client. It exists as a protection to the individual to entitle you to tell your lawyer anything without anyone else having a right to know what you discuss, and the case of Greenough v Gaskell in 1883, Lord Brougham LC described it in this way:

“…if the privilege did not exist at all, everyone would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case. If the privilege were confined to communications connected with suits begun, or intended, or expected, or apprehended, no one could safely adopt such precautions as might eventually render any proceedings successful, or all proceedings superfluous.”

As the House of Lords confirmed in 2004; ‘[privilege]…attaches to all communications made in confidence between solicitors and their clients for the purpose of giving or obtaining legal advice even at a stage when litigation is not in contemplation.’

There are very few statutory provisions that abrogate the right to privilege – the main one being the Regulations of Investigatory Powers Act 2000 (specifically The Regulation of Investigatory Powers (Covert Human Intelligence Sources: Matters Subject to Legal Privilege) Order 2009). However, new the Data Use & Access Bill (the Bill) threatens a new erosion of privilege.

How could the Bill impact legal privilege?

The Bill plans to change things in regard to privilege, creating a right for a third party to check it. This means losing control of the advice and threatens a fundamental of English Common law. The intention is that data controllers must now inform data subjects when legal professional privilege is used to withhold documents, and the Information Commissioner (ICO) gains the power to review privileged documents to verify the claim. However, giving the right to review is breaking the protection of privilege. Importantly, if the Commissioner demands to be given a copy of a document to do this review, then the loss of control of the document means there is a risk of that information leaking.

If this new power is created it could create headaches for legal advice. The giving to the data subject a right to make a request to the ICO to review the application of the exemption, to lodge a complaint with the ICO and right to apply to the Court presents the very real risk of loss of privilege.  It is essential that privilege is not lost, sharing with another risks losing it, and even if privilege is deemed to survive loss of control it can still mean the information leaks.  The current position is that lawyers are trusted to confirm something is privileged, but this Bill suggests lawyers are not trusted to respect their duties, otherwise why would you need to check?  This goes against the understanding that as officers of the court they can be trusted.

Privilege is conferred on communications between a client and their lawyers as opposed to specifically confidential communications justified by reference to the special nature of the administration of justice. Indeed, the fact that solicitors are officers of the Court has always indicated a particular link with the administration of justice to which other professionals are not subject. A similar result is reached for barristers by reason of their Code of Conduct; and more generally nowadays by those authorised persons who are entitled to provide the reserved legal activities relating to the conduct of litigation and the rights of audience by reason of their related Codes of Conduct.  Yet this proposal seems not to care about those professional duties and safe guards to ensure privilege is used properly.

When it comes to privilege, you cannot ‘pick and choose’ what is and is not disclosed: Where the privilege in a communication has been waived, the document in its entirety, including all admissions in it, will be put before the court. (Somatra Ltd v Sinclair Roche & Temperley [2000]).

Judges have long recognised the importance of privilege, but perhaps politicians have forgotten:  In R v Derby Magistrates ex parte B [1996], Lord Taylor summarised the risk of loss of privilege very clearly:

“But the drawback to that approach [namely that the protection is not absolute] is that once any exception to the general rule is allowed, the client’s confidence is necessarily lost. The solicitor, instead of being able to tell his client that anything which the client might say would never in any circumstances be revealed without his consent, would have to qualify his assurance. He would have to tell the client that his confidence might be broken if in some future case the court were to hold that he no longer had ‘any recognisable interest’ in asserting his privilege. One can see at once that the purpose of the privilege would thereby be undermined.”

If the Bill is not amended, then soon lawyers may have to qualify their assurance on privilege.

If you have questions or concerns about the Bill, please contact James Tumbridge.