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IPCO Annual Report 2018
3. Protecting confidential or
privileged information
Overview
3.1
The Investigatory Powers Act 2016 (IPA) provides enhanced protection for certain forms of
confidential or privileged information and the Investigatory Powers Commissioner’s Office
(IPCO) has a statutory role in authorising and overseeing the acquisition and retention
of such material. The Act and Code of Practice (CoP) introduce specific safeguards for
privileged material.
Legal professional privilege (LPP)
3.2
These safeguards reflect the fundamental right of individuals and organisations to seek
legal advice and to conduct litigation in a confidential manner without fear that those
communications will be targeted, save in certain defined circumstances.
3.3
For example, a warrant to intercept communications will only be granted in exceptional and
compelling circumstances if the purpose, or one of the purposes, is to acquire or select for
examination items subject to LPP. This measure protects individuals and companies seeking
legal advice and ensures that a higher level of protection is established for members of the
legal profession. Additionally, authorities must inform IPCO if they think it is necessary to
retain LPP material; this decision is subject to approval by a Judicial Commissioner (JC).
3.4
The amended CoP for both Covert Surveillance and Property Interference and Covert
Human Intelligence Sources (CHIS), published August 2018, contain enhanced regimes for
the reporting of the inadvertent acquisition of LPP material as well as a more formal role
for the Investigatory Powers Commissioner (IPC) in determining whether public authorities
can retain such material. Although this relates to the Regulations of Investigatory Powers
Act 2000 (RIPA), the new Codes mirror the enhanced protections within the IPA 2016. We
anticipate that our 2019 Annual Report will reflect a significant increase in LPP issues that
have been brought to our attention by public authorities.
3.5
IPCO also provides advice when an authority is uncertain whether an item is legally
privileged. In these circumstances, the material is considered in order to determine
whether the public interest in retaining it outweighs the public interest in the
confidentiality of the item.
LPP oversight issues
3.6
Overall, compliance with LPP safeguards during 2018 was good. Only one public authority
notified us of an instance when LPP material had been acquired under the IPA in circumstances
not anticipated at point of application. In that case, the relevant authority ensured that the
material acquired was handled in accordance with the CoP and that the confidentiality of the
material was protected prior to it being assessed by IPCO. We have noted that public authorities
are usually cautious, sometimes extremely so, regarding the potential acquisition of LPP.