Lawyer-Client Communications should have Constitutional Protection

Suggested constitution clause (borrowed from a New Zealand provision):

'Genuine communications between lawyers and their clients are protected.  They may not be intercepted or used against a client.  A communication is so protected if:

(a) It is a confidential communication, whether oral or written, passing between—

i) a legal practitioner in the practitioner's professional capacity

and another legal practitioner in such capacity; or

ii) a legal practitioner in the practitioner's professional capacity -

and the practitioner's client, whether made directly or indirectly through an agent of either; and

(b) it is made or brought into existence for the purpose of obtaining

or giving legal advice or assistance; and

(c) it is not made or brought into existence for the purpose of

committing or furthering the commission of some illegal or

wrongful act.'

 

Idea behind the draft clause:

1. Understand the law and apply it to commerce and other transactions so as to avoid infringing laws and to create binding obligations;

2. Have access to justice before the courts whether as a claimant or a defendant. 

It is distinct from and superior to general rights to privacy and has always been given separate recognition and protection by our common law long before the article 8 right to to act was drafted and incorporated into UK law. 

It is so important that it shpuld be enshrined in a written constitution.

edited on Apr 13, 2015 by Ian Smith

Ian Smith Apr 5, 2015

Dear All,

I am posting a quick comment here and in my other ideas.

Firstly, I want to say how much I have enjoyed seeing all of your contributions on this and other ideas and how impressed I am with the range of expertise and erudition which has filled these debates.

Secondly, I wish to put forward a couple of suggestions as to a way forward at this stage.  They are:

A.   I suggest that we all refrain from further voting until the ideas have been refined and represented and have then been debated for a while.  My thinking here is that we will want to see the reshaped ideas and see the comments on those refined ideas before we decide whether they are to be voted up or down,  I do not think that we should refrain from voting on comments but perhaps try not to vote to hastily on them.

B.  Now that the hurly burly of the "Hacking" phase (some of it quite savage) has passed, I hope and wish that we will adopt a more collaborative and less combative approach in our commentary, so that commentary is given a chance to be constructive and really do the job of refining the ideas in question.

C.  I would hope that we can refrain from attacking the very existence of the idea under discussion in this phase or the fact that it has successfully gone through to this phase against the wishes of those who voted it down.  I sincerely hope that the previous critics of an idea, will still respect that it found favour with the crowd and now help to refine the idea in this phase.

Thirdly, I will try my best not to introduce any more typos and mangled phrases! 

Best wishes for the holiday week end!

Ian 

Ian Smith Apr 7, 2015

Dear All,

Before I draft a suggested clause for the constitution, I should be very grateful if you would let me have any further thoughts on this idea and in particular the form of a constitutional clause.

Kind regards,

Ian

Daniel Gaunt Apr 9, 2015

Ian - this clause should also include communications between individuals and their MPs. 

Tom Austin Apr 9, 2015

Yes, you are on the ball 'deg'. Perhaps something to set out what communications should be regarded as 'privileged', and what such privilege should entail.

View all replies (2)

Tom Austin Apr 8, 2015

This is probably better viewed in relation to Article 6, Right to a fair trial.

This appears to be the argument of 'Reprieve' & 'Liberty' have much to say...

https://www.liberty-human-rights.org.uk/human...ht-fair-hearing

Daniel Gaunt Apr 13, 2015

Genuine communications, whether oral or written and however transmitted, between a) lawyers and their clients and b) members of parliament and their constituents are protected.  Except with the express permission of either party to the communication, they may not be intercepted or used against either party or any third party.  

This provision shall apply equally to related communications passing between two or more legal practitioners acting in a professional capacity in relation to any such communication, and between an MP and the MP's parliamentary staff acting in a professional capacity in relation to any such communication.

Communication for the purpose of committing or furthering the commission of some illegal or wrongful act shall not be considered a genuine communication afforded such protection. 

Imogen Galilee Apr 13, 2015

I like the drafting of this ... but some thoughts on the final paragraph:

How would we know whether that exception applies, unless the right had already been violated? We'd have to know what the communication was to know the purpose, surely?

Maybe a better way of phrasing it would be using the words you used in paragraph two: "communication between a client and his or her lawyer in their professional capacity...", raising the possibility that ... if one was to establish that the lawyer, say, was not actually giving legal advice ... then the communication wouldn't be protected.

(One could perhaps even read 'professional capacity' as implied?)

Imogen Galilee Apr 13, 2015

Guys, I would note: we have this proposal - https://constitutionuk.com/post/79718

If you want this to explicitly mentioned, why not simply add 'this particularly applies to communication between lawyer-client, and MP-constituent'?

Would you even need to say that - considering the fact that the 'right to communicate without interception' proposal completely covers the ground? I would argue ... clearly no.

Scott Wilson Apr 14, 2015

I agree, I wouldn't want there to be some sort of higher standard given to communications with an MP than with my doctor, mother or anyone else. 

 

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