Statutory register of government lobbyists will preserve legal professional privilege

Out-Law News | 18 Sep 2014 | 12:58 pm | 2 min. read

Law firms that lobby the government on behalf of clients will not need to disclose any information protected by legal professional privilege (LPP) when a new statutory register is up and running, the UK government has confirmed.

The recently enacted Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act will establish a statutory register of third-party 'consultant lobbyists' on which those who undertake the business of consultant lobbying will be required to register. Consultant lobbyists, such as lawyers, accountants and other professionals, will be required to disclose the names of their clients and declare whether or not they subscribe to a relevant code of conduct as part of the registration process.

A new Registrar of Consultant Lobbyists will be established as an independent statutory office under the Act, with duties to keep and publish the register as well as to monitor compliance with and enforce the registration requirements. Section 9 of the Act gives the registrar the power to serve information notices on registered consultant lobbyists and those that it has "reasonable grounds for believing" should be registered, requiring them to supply information.

According to the draft regulations, the registrar will not be able to request information on "any communication between a professional legal adviser and the adviser's client in connection with the giving of legal advice" or "in connection with or in contemplation of proceedings" as part of this power. A "professional legal adviser" as defined by the regulations will include "any person representing such a client".

In its consultation on the draft regulations, the Cabinet Office said that restricting the registrar's ability to request communications subject to LPP was the only limitation it was considering placing on its power to request information.

"This is to guarantee the long-standing confidentiality of such protected material and ensure that legal advice can be given freely without fear of it being disclosed to the registrar in future," it said in its consultation.

"We believe that this is an appropriate and proportionate limitation on the ability of the registrar to request information in order to monitor compliance with the requirements of this part of the Act. We do not believe that there are other categories of information that the registrar should be prevented from requiring," it said.

LPP, or 'legal advice' privilege, keeps communication between a lawyer and their client confidential and it means that information cannot be disclosed even during the course of most trials. LPP attaches to communications, and evidence of those communications, which were created for the purpose of giving or obtaining legal advice. In order for LPP to apply, the documents in question must be confidential.

According to the Cabinet Office, the new register will increase transparency and help to drive up standards by enhancing scrutiny of the ethical principles to which lobbyists subscribe. It will complement the government's existing transparency initiatives, including the quarterly publication of details of ministerial meetings with organisations and the industry's existing self-regulatory regime, and address existing limitations meaning that it is not always clear whose interests are being represented by consultant lobbyists.

The Cabinet Office is also seeking views on the categories of information that should be included on the register, as well as a possible charging structure. Its preferred approach is that the register by funded by the lobbying industry through a flat-fee subscription charge.