Faculty: Greater protection for legal professional privilege needed in codes

Draft new Codes of Practice under the Regulation of Investigatory Powers (Scotland) Act 2000 have been prepared by the Scottish Government, in the wake of the Investigatory Powers Act 2016.

In response to a consultation on the draft codes, the Faculty said the importance of protecting legal professional privilege (LPP) had been recognised for centuries, because of its essential role in securing the rule of law.

“The Faculty is concerned that the protection proposed in the new codes does not properly reflect the central importance of LPP in securing the rule of law in a democratic society,” the Faculty stated.

It highlighted that lawyer-client communications which furthered a criminal purpose did not fall within the scope of LPP, and that LPP was different from other categories of confidential information considered in the draft codes – discussions with a minister of religion, an elected representative, a doctor or a journalist.

“Whilst maintaining the confidentiality of those exchanges is undoubtedly important, it is not, in the Faculty’s view, an essential part of securing the rule of law,” added the Faculty.

“That is the feature that gives LPP its special status and which should, the Faculty suggests, justify an enhanced and rigorous protection. From our reading of the draft codes, however, LPP is treated in substantially the same terms as those other categories of confidential information.”

In the Faculty’s opinion, there was insufficient consideration in the codes of the consequences of intercepting LPP in terms of Article 6 of the European Convention on Human Rights (right to a fair trial).

Also, the deliberate targeting of matters subject to LPP was “unacceptable”, and where LPP was intercepted incidentally or inadvertently, there should be an obligation to destroy such information once it had been identified as such.

“The recognition of the importance of LPP to the securing of the rule of law is not peculiarly Scottish (or British). The core ideal is recognised throughout Europe,” said the Faculty.