18
Investigatory Powers Commissioner ’s Annual Report 2019
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 (IPC)
has a statutory role in authorising and overseeing the acquisition and retention of such
material. The IPA and Codes of Practice (CoP) introduce specific safeguards for confidential
or privileged material. These safeguards enhance the provisions in the Regulation of
Investigatory Powers Act 2000 (RIPA)9 to protect sensitive material.
Legal professional privilege (LPP)
3.2
Legal professional privilege protects the right to seek legal advice and conduct litigation
confidentially. Material subject to legal privilege, which would include most conversations
and written advice between an individual or organisation and a legal advisor or
representative, are protected by specific safeguards in a combination of primary legislation
and the IPA and Codes of Practice.
3.3
Authorities must inform IPCO if they think it is necessary to retain LPP material. The
decision to do so is considered and approved, if appropriate, by a Judicial Commissioner
(JC). In these circumstances, the material and proposed use and handling arrangements are
considered in order to determine whether the public interest in retaining it outweighs the
public interest in the confidentiality of the item.
3.4
In IPCO’s 2018 Annual Report we noted an expectation that the number of LPP-related
issues that would be brought to our attention would likely increase in 2019 because of
changes in protections set out in both the 2018 CoP for Covert Surveillance and Property
Interference and the CoP for Covert Human Intelligence Sources (CHIS). There were two
requests in 2019 to task CHIS to obtain LPP material.
LPP oversight
3.5
9
The requirement to safeguard LPP material is familiar to all of the authorities we oversee
and as a result the level of compliance is generally good (see paragraph 12.31). Authorities
continue to be cautious in their categorisation of LPP material and so we have a high level
of confidence that material relating to legal advice is being properly handled.
The Regulation of Investigatory Powers (Scotland) Act (RIP(S)A 2000 regulates the use of surveillance and
CHIS in Scotland.