Nick Thomas Symmonds

Nick Thomas-Symonds MP

The late Lord Denning thought the "keystone of the rule of law" was judicial independence. He was, of course, right. But, in turn, that central rock is held in its place by many others. One of these is having lawyers appearing in our courts who represent their clients fearlessly and to the best of their ability. 

This is what makes the communication between clients and lawyers so important. People must be able to speak to their representatives in confidence: what is known as legal professional privilege is crucial. The then Whig Lord Chancellor, Brougham, captured the practical significance of this in the case ofGreenough v Gaskell (1833) 1 M & K 98: "If the privilege did not exist at all, every one would be thrown upon his own legal resources, deprived of professional assistance, a man would not venture to consult any skilful person, or would only dare tell his counsellor half his case". 

Such precious legal principles should always be defended whatever the circumstances. Its significance was highlighted during the Government's introduction of the Counter-Terrorism and Border Security Bill into the House of Commons in June 2018. One of its worrying provisions meant that, at our borders, officials would have been able to listen in on conversations between those who are stopped and their lawyers. 

Strong protections at our borders are very important. In addition, people consulting lawyers behind glass, in view of others, can often be necessary for safety. Yet overhearing what is said is quite another matter. If clients wish to waive privilege and divulge this, that is of course their right. However, such a right can only be exercised if the privilege exists in the first place. It is thrown away at our peril. 

The Government argued that it was necessary for three principal reasons. First, that a telephone call to a lawyer might be used by a person stopped to tip off others that they had been apprehended. Second, the lawyer consulted might themselves use the information to notify others of the fact of the person being detained. Third, the lawyer might pass on information to a third party inadvertently. 

Throughout the passage of the Bill through Parliament, as Shadow Security Minister and Shadow Solicitor-General, I argued against this. This was not a situation where liberty and security needed to be traded off. Rather, there was a simple, workable, practical solution: a duty solicitor scheme. Appropriately regulated, all can have confidence that a set of highly trained lawyers adhering to the highest professional standards would provide legal advice in confidence without any of the risks the Government identified being realised. 

Working with other parties in the Commons and my Labour Party colleagues in the House of Lords, cross-party support built up for this proposal and, then, in January 2019, the Government accepted this solution. Brexit is, understandably, dominating the headlines.  Nobody doubts the process of leaving the EU is all-encompassing and affects so many areas of our everyday lives. But this change in approach - so important for our legal system - should not pass unnoticed. 

Nick Thomas-Symonds MP, Shadow Minister for Security and Solicitor General.