issues - Accountablility - Hiding behind priviledge
Legal privilege protected in landmark decision
Legal professional privilege has been saved
- for the moment. It took just over 15 minutes for the Law
Lords to reach a decision on Three Rivers v Bank of England
last Thursday, so it’s fair to assume that they were
A lot turned on those 15 minutes. The Court of Appeal’s
judgment in March held that communications between the Bank
of England and Freshfields could be called as evidence in
the BCCI liquidators’ case against the bank.
That decision threatened the right of clients to talk to their
lawyers in absolute confidence, because only advice on black-letter
law would be privileged. Any discussion of tactics or presentation
could subsequently have been made public.
The decision could have totally undermined the role of solicitors
as all-round advisers. With the proliferation of inquiries
and sweeping new powers given to the regulators, lawyers have
become pivotal in an increasingly authoritarian world. Even
the Attorney General – who post-Iraq might have his
own views on the importance of privilege attached to legal
opinions – was worried about the implications.
Allied to this is the serious difficulty of defining who the
Freshfields’ client was deemed to be the Bingham Inquiry
Unit at the Bank of England, rather than the bank itself.
It would be alarming if employees who may know the facts are
not protected by privilege simply because they do not authorise
payment of the legal bill. We’ll learn more on the definition
of client when the judgment comes out in the autumn, but for
all our sakes, let’s hope it’s not too narrow.
So it was a compelling few days in court, with the box office
silks slugging it out. Pollock was against Sumption, while
Kentridge attended on behalf of the Law Society, which was
granted leave to intervene.
Pollock, in typically pugnacious form, argued that the Bingham
Inquiry, and by extension all non-statutory inquiries, had
no legal consequences. As you can imagine, this hardly went
down very well with Lord Scott – the same Lord Scott
who led the arms-to-Iraq inquiry in 1993. “Pollock got
a hard time on that one,” says one onlooker.
And to end on an unapologetically liberal note: three cheers
for Lords Brown, Carswell, Scott, Rogers, and Lady Hale for
upholding a fundamental human right in the face of the increasingly
powerful investigatory apparatus of the state. The pendulum
is swinging back.