Tuesday, 19 July 2011

When Privileges Collide

The British Constitution is a polite conversation.

There are tensions, but they are rarely articulated.

The parties know full well that confrontations are possible, but good sense and good manners will usually ensure that nothing becomes too embarrassing for anyone involved.

And so it is with the various "privileges" and analogous rights known to English law.

A privilege confers a right - often an absolute right or discretion - on those who wish to invoke its protection.

There are a number of such privileges in English law.

For example, there is "parliamentary privilege" which ensures that anything said in respect of parliamentary proceedings is free from any civil action or criminal law sanction.

There is also the universal jurisdiction of the High Court. There is no "order" which the High Court cannot make, even if it is futile and not capable of practical execution.

One of the most intriguing aspects of the Trafigura litigation was the possibility that a High Court injunction could be held to restrain parliamentary privilege: an unmoveable object and an irresistible force.

In the end, the apparent conflict was resolved, as it often is in domestic matters before the crisis comes to a head.

Today's evidence by James Murdoch at the select committee is suggestive of another such conflict.

He was relentless in blaming the external lawyers: the more he called them "distinguished external counsel" the more he dumped on them.

His lawyers cannot say anything back: News International have "legal professional privilege" which prevents disclosure of their legal advice. There will be confidentiality obligations too.


But what if the House of Commons were to summon the external lawyers and ask them to give evidence?

It may be that the lawyers could not be compelled to provide evidence on pain of "contempt of Parliament".

However, if they chose to give evidence that would surely be free of any threat of civil suit.

Parliamentary privilege would trump legal professional privilege and confidentiality. (Though there may be professional code aspects not rebutted by Parliamentary privilege.)

It would be a fascinating prospect, not least for constitutional law geeks.

A staple of story telling since early human history is to pit two absolute powers against each other. The tradition continues in superhero comics and fantasy films.

There is always drama in the clashes of titans.

The skill of the storyteller is not just to posit such a match, but to engross the listener or reader in how the contradiction is resolved.

Could "parliamentary privilege" be used to defeat "legal professional privilege"?

Or would the latter prevail?

One does not know what would happen when such privileges collide.


Anthony Z said...

Surely the parliamentary privilege, drawn from Art 9 Bill of Rights will prevail over any professional privileges? I would certainly hope so.

Kate Rowlands said...

In my view, legal professional privilege must prevail. Otherwise Parliament would have power over people not before it. LPP is that of the client, not the lawyer. If the lawyer is before the Court, but not the client, Parliament cannot and should not override the protection of the client.
Parliament is the servant of the people and should not compel breaches of contract!

D-Notice said...

In costs hearings, where particular items are disputed, the Court can look at documents in the Solicitors files in order to determine whether they are reasonable.

Presumably, the same situation would apply by to proceedings in Parliament: The Committee could ask to see certain documents, and I doubt the Solicitors would be unlikely to resist such an Order, so they can show that they were acting reasonably...

Steve Jones said...

I would have thought that the terms under which a select committee might summon company representatives to give evidence and what questions they might be able to ask would be subject to some form of review within Parliament. As a ruse to free a legal firm from its duty of client confidentiality, I would have thought this might fail some guidelines. Isn't there a Parliamentart body that checks for abuse of privilege?

I suspect many professions have to put up with not being able to answer criticism because they are bound by client confidentiality. (Different if there's a formal complaint to a regulatory body).

PurbeckPashmina said...

Surely it depends on how much the lawyers were paid and how much they'd be paid while in jug?

See the N o W folk now released.

Mark Phillips said...

Kate R: doesn't your point about LPP turn on why there is LPP, and doesn't that depend on why the instructions were given and why any advice prepared? Or do you say LPP is a coverall protection for the client. NI may have contemplated civil AND criminal proceedings but not, surely, a select commitee.

Lmbsaflavin said...

If summoned H&L would turn up and say "no comment" a lot. Most likely nothing further would happen: I think it incredibly unlikely the Speaker would take it further whereas if they actually breached confidence they would kiss goodbye to their clients.
I'm surprised they went as far as using the word "inaccuracies" in their release today. Carefully phrased though it was.

Nicholas said...

Two thoughts ...

1. LPP - this is a human right protected under the European Convention (although not expressed as such, there is a body of case law that makes it clear that Article 8 extends to communications with a lawyer). So in my view, contempt of Parliament would not trump LPP.

2. If a client defames his/her lawyer in relation to the advice given by that lawyer, is there a point at which the client is treated as having waived privilege by his/her conduct?

Lauren said...

This is a tough question for lawyers to answer, but Parliamentary rules are clear - Parliament takes precedence over legal obligations. Where the two collide, Parliament reigns.

The Canadian Parliament recently encountered just this situation when demanding the legal advice given to the government over the transfer of detainees in Afghanistan. Both solicitor-client privilege and national security exemptions were cited to explain why documents could not be produced and why witnesses could not testify. Erskine May and O'Brien and Bosc (parliamentary bibles) make clear that while these may be invoked, they have no standing in the court of law that is Parliament.

Only Parliament can constrain its own privileges, via legislation, resolution or changes to standing orders, and unless it has chosen to do so (as in the case of the sub judice convention adopted by Westminster in 2001), privilege prevails over existing laws. From O'B & B:

"In practice, standing committees may encounter situations where the authors of or officials responsible for papers refuse to provide them or are willing to provide them only after certain parts have been removed. Public servants and Ministers may sometimes invoke their obligations under certain legislation to justify their position. Companies may be reluctant to release papers which could jeopardize their industrial security or infringe upon their legal obligations, particularly with regard to the protection of personal information. Others have cited solicitor-client privilege in refusing to allow access to legal papers or notices.

These types of situations have absolutely no bearing on the power of committees to order the production of papers and records. No statute or practice diminishes the fullness of that power rooted in House privileges unless there is an explicit legal provision to that effect, or unless the House adopts a specific resolution limiting the power. The House has never set a limit on its power to order the production of papers and records."

In a decision widely-watched by constitutional experts around the world, last year, the Speaker of the Canadian House underlined that Parliament has the absolute, unfettered right to demand documents, regardless of national security or solicitor-client concerns.

Witnesses who fail to answer or provide documents can be reported to the House for contempt. Citing 'professional obligations' is like telling Parliament the dog ate your homework. It simply isn't an excuse.

It is correct that any papers or evidence given to a committee fall under privilege, therefore witnesses benefit from the same protection afforded to MPs. This evidence cannot be used in a civil or criminal case (the client could not sue the lawyer for turning over documents).

Can reference the decisions if anyone's interested - motion to demand documents passed the HoC on 9th Dec 2009, and Speakers' ruling was on 27th April 2010.

The Chimp's Raging Id said...

IANAL, but isn't the confidence that exists between a client & legal counsel absolutely paramount and unbreakable in an adversarial legal system? It would concern me greatly (as an admittedly poorly informed layperson in such matters) if legal counsel could be compelled to testify against their client. (As an aside, is our constitutional law really so ill defined? If so, what should we be doing to correct this?)

While at best tangentially related, I've seen many confidentiality agreements in my time, and every single one has noted that it can be broken by a party to the agreement if a party is compelled by a court of competent jurisdiction. This, to me, seems perfectly reasonable (e.g. it should not be possible to draw up a contract that bound someone to concealing criminal offences). Dragging legal counsel into the parties who could potentially forced to divulge contractually protected information would seem unnecessary and fraught with potential difficulties.

simon mckay said...

There are two frames within which this issue needs to be considered; the legal and regulatory. Whatever the scope of parliamentary privilege and whether the Murdoch's lawyers could give evidence, its reach would not extend to the regulatory position. Both the Solicitors Regulation Authority and Legal Services Ombudsman would still have jurisdiction to consider the matters from a professional-regulatory perspective.
Of course the simplest solution would be for the clients to waive privilege (a question they were not asked yesterday).

rogerh said...

I doubt H&L will get called. Neither NI nor Parliament wants the full story to come out. Think of two gorillas each clutching the other's testicles - Parliament and NI are in much the same position.

botzarelli said...

If H&L were to issue defamation proceedings NI would have little choice but to waive privilege in its communications with H&L if it wished to defend the action.

Even without any civil or criminal liability the potential SRA sanctions for breaching client confidence and acting against the client's interests would be very serious for H&L, not to mention the potential impact that this would have on its relationships with other clients. It would also put the SRA in a very difficult position where it would be likely to be heavily criticised whichever approach it took to the issue.

Hackgate is a particularly colourful case but the broader issue about protecting LPP is very important. It would be seriously adverse to the public interest if businesses whose internal governance structures and processes showed potential criminality (eg participation in a cartel, breaches of health and safety legislation) were discouraged from investigating them and seeking independent legal advice. Those sorts of cases would also potentially be investigated or discussed in Parliament from time to time. Avoiding that harm may well be worth missing out on the juicy parts of NI v H&L.

My guess is that NI will waive privilege if on more detailed internal review and the advice it is now receiving it concludes that the "blame H&L" defence will be successful. If it is more borderline they won't. It would then be up to H&L to decide whether to go for a defamation action - however, they'd be pretty mad to do so unless they found themselves losing a load of clients in the aftermath of NI's allegation.

Adam said...

I think the key to this is in your third paragraph:

"but good sense and good manners will usually ensure that nothing becomes too embarrassing for anyone involved."


It's perhaps an interesting academic exercise to speculate on what might happen if Parliament were to require the lawyers to answer questions that would breach their confidentiality obligations. However, I think it's inconceivable that Parliament would actually choose to do so. They are surely aware of what an impossible position it would put the lawyers in. To do so in spite of that would be a flagrant breach of good sense and good manners.

Dominic Sayers said...

I also ANAL.

Yesterday, Mr James cited three reasons for not answering questions:

(1) prejudicing pending legal actions
(2) commercial confidentiality and
(3) contractual obligations

If he is right (and he also INAL) then Parliamentary Privilege is constrained by all sorts of other obligations. Why would legal professional privilege be any different?

Lmbsaflavin said...

@botzarelli (1) I can't see how H&L could issue defamation proceedings without breaching their duty of confidentiality - what exactly would the pleadings say? A client suing a solicitor waives privilege, but a solicitor cannot simply ignore privilege in order to sue the client.
(2) Parliamentary privilege would, as generally understood, preclude regulatory action as well as any legal action

Andrew said...

What an interesting conundrum.

How does Parliament enforce the attendance of witnesses and the disclosure of documents? Does it issue some for of court orders under penalty for non-compliance? Can it send in the police to seize documents? Even so, Parliament cannot force someone to speak, but they could penalise the person for not speaking.

The collision of Parliamentary sovereignty and fundamental human rights would be interesting. Perhaps, Parliament would have to give way, as it did for EU law in Factortame. But perhaps the right to legal professional privilege is not so absolute as has been suggested above. LPP is more extensive in the UK than many other European jurisdictions; the Supreme Court is currently considering whether LPP should be extended to accountants giving advice on tax law in the Prudential case, and in house lawyers do not benefit from LPP as against the European Commission.

If testimony before Parliament benefits from absolute privilege, how could a regulatory body punish a lawyer for speaking? Obviously their clients could walk away.

botzarelli said...

lmbsaflavin - I'm not sure how H&L would breach client confidence by issuing proceedings. The claim would be that Rupert Murdoch's comments in the WSJ and elsewhere were defamatory. It would only be if Murdoch (and other defendants within the NI group) were to defend the claim (eg by arguing that the comments were true or a fair comment) that the confidences underlying the advice given by H&L would be potentially breached and in that case it would be as a result of the client's own act. Surely that would be a voluntary waiver of LPP?

SteveEvans77 said...

I'm afraid in this case capitalism trumps legal technicalities. They would never breach the confidentiality of their clients - it would simply cost them too much business. Given the choice between risking a charge of contempt of parliament, or losing their business, I don't think it would be a very long discussion at the partners meeting.

Court No. 83 said...

It goes back to the whole nature of law. Nobody has ever got to the bottom of what that is. Statute law is the will of the people expressed through Parliament; common law is justice for the people expressed through the Court. Only statute can specifically overrule common law, and not vice versa.

Being summoned to Parliament is equivalent to being brought before the people. The will is expressed through the committee. If the committee wishes to see the legal advice, that is effectively the people wanting to see it; the whole nature of the legal system in which a contract for giving legal advice exists is due to the willingness of the people to allow it to happen. So it seems to me that that trumps a private arrangement between private entities.

It is therefore up to Parliament to deny itself. Which it may choose to do; it may choose to see the legal advice. If it does the latter, it’s equivalent to passing a law, which a Court would uphold.

It does however lead to the question what would happen if Parliament passes an unconscionable law...

Lauren said...

To answer a few questions about Parliament - Parliament has a committee - Standards and Privileges - that helps it regulate its own internal affairs. But it doesn't 'police' them.

Parliament, and Parliament alone has the privilege to regulate its internal workings - including the physical buildings, free speech, staffing, how it passes laws and carries out its duties. This privilege doesn't apply to the laws Parliament passes. Laws fall under normal legislation - that is to say they can be challenged in the courts if they are unconscionable or discriminatory. Parliament's internal practices fall under privilege, and therefore cannot be challenged in the courts.

Unless Parliament agrees itself to restrain a privilege - by explicitly passing a law or motion - then laws do not apply to privilege. This would include the Human Rights Act and European legislation. It also isn't accurate to compare Westminster with other European Parliaments. They don't derive their privilege in the same way. You can only compare Commonwealth Parliaments using the Westminster system.

Parliament has a legislative function (passing laws), but it also functions as the highest court in the land. While it may not be wise for Parliament to take the nuclear option and pass a motion demanding papers or legal advice, it is perfectly within Parliament's right to do so.

In practice, other Commonwealth parliaments encountering this situation have chosen to hear evidence concerning solicitor-client privilege or national security in camera.

As a court, Parliament has mechanisms to enforce its orders. Its demands - through motions - have the weight of a subpoena, and the Sergent at Arms is authorised to seize documents and people. While Parliament (like a court) cannot force people to answer, it can levy penalties, like fines, summoning to the bar of the House, and even jail. Yes, there is a Parliamentary jail. Hasn't been used for decades, but it exists.

Stephen said...

Well, the point is that legal professional privilege and contempt of Parliament are two opposing but well matched forces and there isn't a “this one clearly wins" answer to this problem.

ObiterJ said...

Legal professional privilege (lawyer/client) belongs to the client.

Parliamentary privilege is there to protect freedom of speech in proceedings in parliament.

Under common law, parliament is a "court" and has a certain - rather vaguely defined power to deal with contempt.

Would the lawyer who pleaded legal professional privilege be in contempt of parliament?

I would submit not given the lack of clarity which exists in the law. Why should he be somehow automatically in contempt because he says that he is unable to answer since he is bound by legal privilege which his client has not released him from.

However, the lawyer who chose to answer questions might breach legal professional privilege but would be protected by parliamentary privilege from any action.

Good manners and gentleman's agreements are not really a proper basis on which to manage the constitution of a country. It is open to Parliament to legislate so that legal professional privilege is overridden. Of course, if parliament were to do this, there could be a human rights challenge.

Having said all of this, I think the Canadian situation referred to by Lauren is interesting. In that situation, the Canadian Parliament was seeking to hold the Canadian executive to account - a proper role for a democratic parliament. It would be ridiculous if Ministers and officials could hide behind legal privilege in the face of the very democratic body there to hold them to account.

In the UK, the Labour government refused to publish the "Goldsmith advice" on the legality of the Iraq military action. However, it was not parliament asking for it.