After the Snowden leaks, British lawyers expressed fears that the government’s mass surveillance efforts could undermine the confidentiality of their conversations with clients, particularly when those clients were engaged in legal battles with the state. Those fears were well-founded.
On Thursday the legal charity Reprieve, which provides assistance to people accused of terrorism, U.S. death row prisoners and so on, said it had succeeded in getting the U.K. government to admit that spy agencies tell their staff they may target and use lawyer-client communications “just like any other item of intelligence.” This is despite the fact that both English common law and the European Court of Human Rights protect legal professional privilege as a fundamental principle of justice.
The revelation came through an Investigatory Powers Tribunal (IPT) hearing about the kidnapping, rendition and torture of two families – named al Saadi and Belhadj, and including four children and a pregnant woman – by the Americans, the British and Libya’s Gaddafi administration in 2011.
The families subsequently sued the British government over what they claimed were ineffective policies for protecting legal professional privilege, then complained to the IPT – the body that supposedly provides judicial oversight for the U.K.’s myriad surveillance operations – that the interception of their communications with their lawyers meant they couldn’t get a fair trial.
Reprieve noted that the government had previously claimed three times that it could not disclose the information it has now disclosed (PDF) in heavily redacted form. According to that information, the acceptability of spying on lawyer-client communications is largely backed up by the Regulation of Investigatory Powers Act (RIPA), which was recently revised to allow surveillance of all sorts of online channels, as well as of phone calls and emails.
Domestic spy agency MI5 (officially known as the Security Service, though the avoidance of the term “SS” is understandable) did advise its staff against using legal professional privilege (LPP) material, but only in January this year, after the claimants in this case applied for interim injunctions. Signals intelligence agency GCHQ (the NSA equivalent) lets its own staff use LPP material but blocks it from finding its way to external “customers” or being used in court cases. The Secret Intelligence Service (SIS/MI6, a.k.a the James Bond lot) provides broad exemptions that allow its staff to access LPP material when there is “an over-riding intelligence requirement” or “the information contains references to SIS or Security Service staff and indicates that information concerning members of staff was in the hands of extremists, in which case action may need to be taken to protect staff.”
According to Reprieve director Cori Crider, who has also acted as U.S. counsel for the Behladj and al Saadi families:
It’s now clear the intelligence agencies have been eavesdropping on lawyer-client conversations for years. Today’s question is not whether, but how much, they have rigged the game in their favour in the ongoing court case over torture. The documents clearly show that MI5’s and GCHQ’s policies on snooping on lawyers have major loopholes. And MI6’s ‘policies’ are so hopeless they appear to have been jotted down on the back of a beer mat.
This raises troubling implications for the whole British justice system. In how many cases has the Government eavesdropped to give itself an unfair advantage in court?
So, the British authorities can use RIPA to spy on lawyers, and they can use it to spy on journalists (a systemic practice, National Union of Journalists general secretary Michelle Stanistreet testified before Parliament earlier this week.)
It’s a bit like GCHQ’s recently-revealed spying on other countries’ delegations during climate change talks. Internationally or domestically, it seems no information is off-limits if the British authorities are being challenged. That’s your surveillance state, right there.