Faculty welcomes GCHQ ruling on legally privileged material

Government Communications Headquarters (GCHQ) has been required by a tribunal to undertake to destroy documents containing legally privileged material which was obtained by unlawful surveillance.

The Investigatory Powers Tribunal (IPT) made a determination in favour Sami al-Saadi, a former opponent of the Gaddafi regime, who alleged involvement by MI6 in his abduction and return to Libya in 2004, and unlawful interception of his communications with lawyers.

Similar claims were made by a second Libyan, Abdel-Hakim Belhadj, but the Tribunal announced that it had found only in favour of Sami al-Saadi and in relation to only two documents held by GCHQ.

"These two documents contain information which is subject to the privilege of (Sami al-Saadi). It is important to record that, although that information is covered by privilege it did not disclose nor refer to any legal advice," said the IPT in its Determination.

"...to emphasise the importance of the protection of legally privileged material the Tribunal has required GCHQ to give an undertaking that the parts of the documents containing legally privileged information will be destroyed or deleted so as to render such information inaccessible to the agency in the future."

Earlier in the case, disclosure had been made of policies by MI5, MI6 and GCHQ relating to the surveillance of lawyer-client communications. As the Tribunal notes, the Faculty had considered intervening in the proceedings but did not proceed to do so when the UK Government conceded that the regime did not comply with the European Convention on Human Rights. The Tribunal declared that "since January 2010 the regime for the interception/obtaining, analysis, use, disclosure and destruction of legally privileged material has contravened Article 8 ECHR and was accordingly unlawful."

New Codes have been drafted and, in a submission to the Government, the Faculty welcomed those as a "step in the right direction."

However, it added: "They do not go far enough in protecting lawyer-client confidentiality. Given the constitutional importance of legal professional privilege, it should be specifically protected in primary legislation, by making clear that the deliberate targeting of legally privileged communications and material is unlawful, while continuing to permit the authorities to seek access to such communications and information if the lawyer-client relationship is being abused for a criminal purpose."

Commenting on the IPT's Determination, James Wolffe, QC, Dean of Faculty, said: "I welcome the IPT's decision which reaffirms the importance of legal professional privilege and the importance of having a public and transparent process by which the State can be held accountable for any violation of a citizen's fundamental human rights. I look forward to the outcome of the recent consultation on new codes which should further secure these important rights."

The Determination is at http://www.ipt-uk.com/docs/Belhaj_Determination_final.pdf and the Judgment at http://www.ipt-uk.com/docs/ABDEL_HAKIM_BELHADJ_Final.pdf