UK Government concession on monitoring legally privileged communications

20 Feb

The UK Government has conceded that policies on the surveillance of lawyer-client communications are not fully compliant with the European Convention on Human Rights.

In a statement, the Government said the concession did not mean there had been "any deliberate wrongdoing on the part of the security and intelligence agencies".

It added, however, that the agencies would work with the independent Interception of Communications Commissioner to ensure that policies met all human rights obligations.

Last November, disclosure of policies by MI5, MI6 and GCHQ relating to the surveillance of lawyer-client communications was made during a hearing of the Investigatory Powers Tribunal (IPT), which examines complaints against the intelligence services.

The IPT is dealing with a case brought on behalf of two Libyans, Abdel-Hakin Belhaj and Sami al-Saadi, who allege involvement by MI6 in their abduction and return to Libya in 2004, and unlawful interception of their communications with lawyers.

Following the disclosure, the Dean of Faculty, James Wolffe, QC, wrote to the Advocate General for Scotland saying that it raised questions of legitimate concern.

Also, an unprecedented joint statement underscoring the importance of lawyer-client confidentiality was issued by the Bar Council of England & Wales, the Bar Council of Northern Ireland, the Faculty of Advocates, the Law Society of Scotland, the Law Society of England & Wales and the Law Society of Northern Ireland.

The Belhaj/al-Saadi case is due to be heard by the IPT next month, and in advance of it, a Government spokesperson said: "Our security and intelligence agencies are subject to robust legal oversight and independent safeguards. The concession the Government has made relates to the agencies' policies and procedures governing the handling of legally privileged communications and whether they are compatible with the ECHR.

"In view of recent IPT judgments, we acknowledge that the policies applied since 2010 have not fully met the requirements of the ECHR, specifically Article 8. This includes a requirement that safeguards are made sufficiently public. It does not mean that there was any deliberate wrongdoing on the part of the security and intelligence agencies, which have always taken their obligation to protect legally privileged material extremely seriously. Nor does it mean that any of the agencies' activities have prejudiced or in any way resulted in an abuse of process in any civil or criminal proceedings.

"The agencies will now work with the independent Interception of Communications Commissioner to ensure their policies satisfy all of the UK's human rights obligations. This work has already begun with publication earlier this month of an updated draft Interception Code of Practice. This draft, which is currently out to consultation, sets out enhanced safeguards and provides more detail than ever before on the protections that must be applied to privileged material."