CILEx: Legal professional privilege under threat from draft 'Snooper's Charter'

The Chartered Institute of Legal Executives (CILEx) is requesting the government make important amendments to the controversial Draft Investigatory Powers Bill.

CILEx has joined the Law Society and the Bar Council in calling for statutory protection of privileged communications.

The representative body for legal executives believes the draft Bill could miss the chance to protect the confidentiality of communications which should be subject to legal professional privilege. 

In applying a ‘one-size-fits-all’ approach to such sensitive information, the Bill is ‘unsatisfactory and potentially unlawful,’ according to the association.

CILEx president, David Edwards, said legal professional privilege should have ‘full protection’ under the Act.

‘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,’ he added.

In addition, CILEx has expressed concern that 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 given to the government to authorise interception in ‘urgent cases’ overlooks the fact that this will likely be in the majority of cases, said CILEx.

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, it added.

CILEx advocates this as ‘an important step in upholding the rule of law and protecting the public’. Where concerns are raised over national security and personal freedoms, ‘judicial approval of all intercept warrants as recommended by David Anderson QC, is both achievable and necessary,’ it said.

In a statement released by the Law Society, chief executive Catherine Dixon supported the government’s intention to ‘strengthen the oversight and authorisation framework for investigatory powers’ but was concerned by a lack of ‘explicit protection’ for clients when communicating with their legal advisers.

‘Legal professional privilege is a vital part of the administration of justice. It protects a client’s fundamental right to be candid with their legal adviser without fear that someone is listening in,’ she said. ‘It does not pose a risk to legitimate investigations because it does not apply when a crime is suspected.’

Dixon added: ‘The government had the opportunity to signal its intention to give appropriate protection to the client-lawyer relationships that a civilised society depends on. We hope that they will reconsider and take the opportunity to safeguard what is widely recognised as a fundamental right.’

Matthew Rogers is an editorial assistant at Solicitors Journal matthew.rogers@solicitorsjournal.co.uk