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Commissioner upholds legal privilege despite Akzo Nobel

8 March 2012

A decision of the Scottish Information Commissioner upholding legal professional privilege in relation to advice to ministers by Scottish Government lawyers has been welcomed by the In-house Lawyers Group of the Law Society of Scotland.

In the decision, handed down before he left office last month, the Commissioner, Kevin Dunion, declined to apply the decision of the European Court in Akzo Nobel v European Commission case, which stated that in house lawyers were not entitled to legal professional privilege. should be limited to EU competition law, and should have no effect on UK domestic law.

The applicant attempted to use the Freedom of Information (Scotland) Act to access legal advice provided to Scottish Ministers regarding the compatibility of the Mental Health (Care and Treatment) Scotland Act 2003 with the European Convention on Human Rights, and contended that Akzo Nobel was relevant.

Mr Dunion however noted that the decision in Akzo Nobel related specifically to EU competition law, and he did not consider it relevant to, or creating any precedent on, legal privilege in relation to the Freedom of Information Act in this application.

Janet Hood, chair of the In-house Lawyers' Group said: "I am pleased to see that the Information Commissioner has interpreted Akzo Nobel in its correct and extremely limited interpretation as relating to EU competition law only.

“Scottish solicitors who work in-house are subject to the same rules, standards and regulation as those working in private practice, and benefit from the same professional privileges. They provide an invaluable service in delivering knowledgeable and independent advice for their employers. While they may not have a traditional client base because they act for their employer, they provide strategic input into the running of the business as well as being the legal expert responsible for running cases and implementing new legislation.”

Click here to access the Commissioner's decision.

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