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The Investigatory Powers Bill and legal professional privilege

07 November 2016

Alexandra Cardenas discusses the third reading of the Investigatory Powers Bill and the strengthening of legal professional privilege.


This week, the High Court ruled that the government does not have power to trigger article 50 without parliamentary approval and a vote from MPs. The government said that it would appeal this decision. Some commentators have suggested that the prime minister may be forced to call a general election next year to ensure she has enough support in parliament if the government loses this appeal.

In parliament, the third reading of the Investigatory Powers Bill was approved and the amendments tabled by the government to strengthen protection of legal professional privilege were accepted by Labour, Lib Dem and crossbench peers. The changes give greater protection to legally privileged material accidentally caught in a legitimate search, ensuring its retention is subject to a public interest test.

Over the last year, we have worked closely with the government to ensure that adequate safeguards to legal professional privilege were included in the bill. During third reading, the Law Society was praised for the 'invaluable work' done on behalf of lawyers and their clients by both Baroness Hamwee and Lord Pannick.

The bill is now back in the House of Commons for consideration of Lords amendments, as part of the so-called 'ping pong' stage. The bill is likely to receive royal assent over the next few weeks, certainly before the end of the year.

Oral justice questions also took place this week. The key topics discussed were the review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), court reform, and human rights and the armed forces. There was also a specific question on legal aid deserts. The public affairs team briefed a number of MPs ahead of the session and our legal aid deserts campaign was mentioned by courts and justice minister, Sir Oliver Heald MP.

The House of Commons elected two new members of the Justice Select Committee, Keith Vaz MP (Lab) and Kate Green MP (Lab) in replacement of Andy McDonald MP and Dr Rupa Huq MP who were appointed shadow secretary of state for transport and shadow home office minister respectively after the shadow cabinet reshuffle.

Monday 31 October

Parliament

House of Lords

Investigatory Powers Bill - Third Reading

Third reading of the Investigatory Powers Bill was approved and the amendments tabled by the government were accepted by Labour, Lib Dem and crossbench peers. The changes give greater protection to legally privileged material accidentally caught in a legitimate search, ensuring its retention is subject to a public interest test. The Law Society was praised for the 'invaluable work' done on behalf of lawyers and their clients by both Baroness Hamwee and Lord Pannick. The Investigatory Powers Bill is expected to receive royal assent by the end of the year.

Read the transcript

Tuesday 1 November

Parliament

House of Commons

Oral Justice Questions

The key topics discussed were the review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), court reform, and human rights and the armed forces. There was also a specific question on legal aid deserts. The public affairs team briefed a number of MPs ahead of the session and our legal aid deserts campaign was mentioned by courts and justice minister, Sir Oliver Heald MP. The main points were as follow:

Legal aid - LASPO

  • Ministers repeated the commitment to carry out the LASPO review within 3-5 years of implementation. Sir Oliver Heald pointed out that we are only at the beginning of that window.
  • Following our briefing, Rob Marris MP (Lab) asked about legal aid deserts. Sir Oliver said that some areas had 1 provider due to low need, and that there was adequate coverage.
  • Shadow courts and legal aid minister Christina Rees MP asked whether the government would broaden the exception case funding (ECF) criteria. Sir Oliver said that ECF was a vital part of the justice system and that the government would keep this area under review.
  • Christina Rees also said that women had to face their abusive ex-partners as a result of legal aid cuts. The parliamentary under-secretary of state for victims, youth and family justice, Dr Philip Lee, said that the government recognised that women needed more support in such circumstances and that this support, including legal aid, was in place for victims of domestic violence.

Court Reform

  • Sir Oliver praised Lord Justice Briggs's work, and reiterated the government's commitment to digital courts in some cases. He said that the government would introduce an online procedure for lower value dispute resolution. Challenged on fee increases, particularly a 500 per cent increase in immigration tribunal fees, and their impact on access to justice, Sir Oliver pointed out that a remission scheme was in place.

Human Rights

  • Sir Oliver said that the government will set out its bill of rights plan in due course.
  • In relation to the Iraq Historic Allegations Team (IHAT) and vexatious claims, the minister said that soldiers should not be subject to vexatious claims, but claims of criminal activity should be properly investigated. He also said that the government would remove barriers to deporting foreign criminals.
  • Pardons for those convicted under defunct criminal law on homosexuality was raised, particularly in reference to Scotland. The parliamentary under-secretary of state for prisons and probation, Sam Gyimah MP, pointed out that a system was already in place to allow those convicted of offenses no longer on the books to have the offence disregarded.

Indian Legal Services Market

  • Former courts and legal aid minister Shailesh Vara MP asked about the government's work to liberalise the Indian legal services market. The lord chancellor congratulated him on his work whilst a minister and reiterated the government's commitment to delivering an agreement between the English and Welsh and Indian legal professions.

Read the transcript of the questions

Wednesday 2 November

Parliament

House of Lords

Policing and Crime Bill

The Policing and Crime Bill is at committee stage where further amendments are considered.

Thursday 3 November

Parliament

House of Commons

Debate on the effect of the UK leaving the EU on financial and other professional services

Liz Kendall MP (Lab) and Chris Leslie MP (Lab) sponsored a backbench debate on the effect of the UK leaving the EU on financial and other professional services. Although the debate mainly focused on the implications of Brexit for the financial services sector, Bob Neill MP (Con), the chair of the Justice Select Committee, and Joanna Cherry MP (SNP), the spokesperson for justice and home affairs, mentioned the importance of accessing the single market for the legal services sector too.

Bob Neill noted that access to the single market for the financial sector was linked up to other services like the legal sector, which was crucial to back financial services. Joanna Cherry MP noted that lawyers and law firms were worried about Brexit. In particular, she highlighted the importance for lawyers to retain the right to practice across EU members states. She noted that lawyers depend on their clients and that they cannot provide good service to them if they cannot practice.

Friday 4 November

Nothing to report.

Tags: Investigatory Powers Bill | legal aid | Parliament | Brexit | criminal legal aid | legal professional privilege

About the author

Alexandra Cardenas is Head of Public Affairs and Campaigns at the Law Society. Public Affairs manages the relationships with parliament and government. She is a dual qualified solicitor in England and Wales (2014), and Colombia (2002). Prior to the Society, she practised as a human rights lawyer and worked at Macmillan Cancer Support and Animal Defenders International.

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