CILEx concerns on LPP

CILEx response to Draft Investigatory Powers Bill

10 November 2015

Electronic communicationsThe Chartered Institute of Legal Executives (CILEx) is requesting the Government make important amendments to the Draft Investigatory Powers Bill.

This complex area of law is in need of consolidation, however the Draft Bill may potentially miss the opportunity to protect the confidentiality of communications which should be subject to Legal Professional Privilege (LPP). The Draft Bill applies a ‘one-size-fits-all’ approach to such sensitive information, which is unsatisfactory and potentially unlawful.

CILEx president, David Edwards FCILEx said: “CILEx believes that Legal Professional Privilege, which ensures that communications between a lawyer and their client remain confidential, should have full protection. Separate codes of practice will not provide adequate safeguards, and without full protection our members are concerned the relationship of trust between lawyer and client could be undermined. Such greater protection would provide reassurance to the public.”

Additionally, CILEx is concerned the proposed two stage authorisation process, whereby the Secretary of State issues a warrant which is then approved by a Judicial Commissioner, could be easily circumvented in a large number of circumstances. The power for the Secretary of State to authorise interception in “urgent cases” overlooks that this will likely be the majority of cases.

If there is judicial oversight, the evidence that is obtained is more likely to be accepted and adduced in serious cases. Without the oversight, evidence is more likely to be challenged, and dismissed on technicalities. This is an important step in upholding the rule of law and protecting the public. In matters of national security and personal freedoms, judicial approval of all intercept warrants as recommended by David Anderson QC, is both achievable and necessary.