Government plans to give the Legal Services Board (LSB) powers to raid the premises of frontline regulators and seize documents have been strongly criticised for their lack of safeguards and inadequate protection of legal professional privilege (LPP).
The draft Legal Services Act 2007 (Warrant) Regulations 2012 are the Ministry of Justice’s second attempt to introduce the powers after queries raised by Parliament’s joint committee on statutory instruments caused a halt the first time in March 2010.
The draft regulations allow the LSB to apply to a judge in certain circumstances for a warrant authorising it to enter and search the premises of an approved regulator and take possession of any written or electronic records. They have been sent to stakeholders for comment but are not subject of a consultation.
The Bar Council has raised lengthy objections of the draft, expressing particular concern that it has dropped safeguards from the original version that were designed to ensure that warrants are obtained only where appropriate and are restricted to the purposes for which they were needed. It argued that the judge must be satisfied that a warrant is “a necessary and proportionate” step.
Among the changes are that instead of the LSB having to take “all reasonable attempts” before a warrant could be issued, this has been watered down to “reasonable attempts”. It said the Ministry of Justice’s original 2009 consultation paper on the regulations said the warrant powers were intended only to be used where necessary and only where all other possible avenues have been tried or considered.
The Bar Council added the draft is not sufficiently clear that where a regulator shares premises with a representative body – as the Bar Council does with the Bar Standards Board – the LSB should be unable to obtain or exercise a warrant in relation to records held by the organisation in any capacity other than as an approved regulator.
It also claimed that provisions in the regulations to protect LPP had been watered down so that they only prohibit the copying of protected items. “What the regulations do not prohibit is: (1) the issuing of a warrant in relation to such items; (2) a search for such items; (3) the seizure and removal of such documents from the premises of an approved regulator; (4) the reading of such documents; or (5) the use of any information contained in or derived from such documents.”
The Bar Council pointed out that the draft regulation does not protect the LPP of any person other than the approved regulator. “The Bar Council may hold documents that are the subject of another person’s legal privilege… There is no justification in the Act for any such privilege being ignored or overridden.”
A Bar Standards Board spokeswoman told Legal Futures that it too had queried the rationale for the removal of provisions relating to applications for and the contents of warrants.
A spokeswoman for the Solicitors Regulation Authority said it considered the draft regulations but had no comments to make. “We asked to be kept informed.”
The LSB’s own response to the regulations dealt purely with drafting issues.