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New European ruling may strengthen case for further protections on LPP

by Dr Carolina Gasparoli
17 January 2017

With the Investigatory Powers Act (IPA) 2016 receiving Royal Assent on 29 November, the government accomplished its task of introducing new legislation regulating state powers in relation to bulk interception, acquisition and equipment interference by the end of the year.

The act replaced the Data Retention and Investigatory Powers Act 2014 (DRIPA), whose sunset clause expired on 31 December.

As highlighted in August in this blog, the Law Society has focused on influencing the law making process since the draft bill was introduced in November 2015, expressing concern for the lack of adequate protection for legal professional privilege (LPP).

Over the last year, our work has led the government to accept a requirement for exceptional and compelling circumstances where a warrant is intended to capture LPP communications or is likely to do so. The changes introduced 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 peers. As highlighted by the president in an article published in the Huffington Post, it is not the act that the solicitor profession would have written, but it is a significant improvement on where we began.

Human rights campaign group Liberty has announced that it will be launching a crowdfunded legal challenge against the IPA, and the Court of Justice of the European Union (CJEU) ruling on Secretary of State for the Home Department v Watson and others has provided a basis for this.

On 21 December it ruled that the 'general and indiscriminate' retention of communications data on a mass scale required by DRIPA was unlawful under EU law. The Law Society intervened in the case to outline its concern about the effect of surveillance legislation on LPP and other sensitive information which may be deliberately or inadvertently intercepted in relation to communications data, the 'who', 'where', 'when', and 'how' of a communication.

Although DRIPA was repealed, the CJEU ruling could pave the way for a legal challenge to the equivalent provisions in the IPA.

One of the concerns we repeatedly raised with the government was that communications data should be protected as it could contain privileged materials. The government decided otherwise. The ruling could potentially weaken the act while the UK remains in the EU, as it lacks protection for communications data. After Brexit a new chapter opens up, as the act could be deemed incompatible with the European Convention of Human Rights and EU data protection legislation. Ironically, what the government refused to protect under the act could become a wider issue about the UK's future relations with the EU.

Dr Carolina Gasparoli


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