The regime under which UK intelligence agencies, including MI5 and MI6, have been monitoring conversations between lawyers and their clients for the past five years is unlawful, the British government has admitted.
The admission that the activities of the security services have failed to comply fully with human rights laws in a second major area – this time highly sensitive legally privileged communications – is a severe embarrassment for the government.
It follows hard on the heels of the British court ruling on 6 February declaring that the regime surrounding the sharing of mass personal intelligence data between America’s national security agency and Britain’s GCHQ was unlawful for seven years.
The admission that the regime surrounding state snooping on legally privileged communications has also failed to comply with the European convention on human rights comes in advance of a legal challenge, to be heard early next month, in which the security services are alleged to have unlawfully intercepted conversations between lawyers and their clients to provide the government with an advantage in court.
The case is due to be heard before the Investigatory Powers Tribunal (IPT). It is being brought by lawyers on behalf of two Libyans, Abdel-Hakim Belhaj and Sami al-Saadi, who, along with their families, were abducted in a joint MI6-CIA operation and sent back to Tripoli to be tortured by Muammar Gaddafi’s regime in 2004.
A government spokesman said: “The concession the government has made today relates to the agencies’ policies and procedures governing the handling of legally privileged communications and whether they are compatible with the European convention on human rights.
“In view of recent IPT judgments, we acknowledge that the policies adopted since [January] 2010 have not fully met the requirements of the ECHR, specifically article 8 (right to privacy). This includes a requirement that safeguards are made sufficiently public.
“It does not mean that there was any deliberate wrongdoing on their part of the security and intelligence agencies, which have always taken their obligations 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.”
He said that the intelligence agencies would now work with the interception of communications commissioner to ensure their policies satisfy all of the UK’s human rights obligations.
Cori Crider, a director at Reprieve and one of the Belhaj family’s lawyers said: “By allowing the intelligence agencies free reign to spy on communications between lawyers and their clients, the government has endangered the fundamental British right to a fair trial.
“Reprieve has been warning for months that the security services’ policies on lawyer-client snooping have been shot through with loopholes big enough to drive a bus through.
“For too long, the security services have been allowed to snoop on those bringing cases against them when they speak to their lawyers. In doing so, they have violated a right that is centuries old in British common law. Today they have finally admitted they have been acting unlawfully for years.
“Worryingly, it looks very much like they have collected the private lawyer-client communications of two victims of rendition and torture, and possibly misused them. While the government says there was no ‘deliberate’ collection of material, it’s abundantly clear that private material was collected and may well have been passed on to lawyers or ministers involved in the civil case brought by Abdel hakim Belhaj and Fatima Boudchar, who were ‘rendered’ to Libya in 2004 by British intelligence.
“Only time will tell how badly their case was tainted. But right now, the government needs urgently to investigate how things went wrong and come clean about what it is doing to repair the damage.”
Government sources, in line with all such cases, refuse to confirm or deny whether the two Libyans were the subject of an interception operation. They insist the concession does not concern the allegation that actual interception took place and say it will be for the investigatory powers tribunal hearing to determine the issue.
An updated draft interception code of practice spelling out the the rules for the first time was quietly published at the same time as the Investigatory Powers Tribunal ruling against GCHQ earlier this month in the case brought by Privacy International and Liberty.
The government spokesman said the draft code set out enhanced safeguards and provided more detail than previously on the protections that had to be applied in the security agencies handling of legally privileged communications.
The draft code makes clear that warrants for snooping on legally privileged conversations, emails and other communications between suspects and their lawyers can be granted if there are exceptional and compelling circumstances. They have to however ensure that they are not available to lawyers or policy officials who are conducting legal cases against those suspects.
Exchanges between lawyers and their clients enjoy a special protected status under UK law. Following exposure of widespread monitoring by the US whistleblower Edward Snowden in 2013, Belhaj’s lawyers feared that their exchanges with their clients could have been compromised by GCHQ’s interception of phone conversations and emails.
To demonstrate that its policies satisfy legal safeguards, MI6 were required in advance of Wednesday’s concession to disclose internal guidance on how intelligence staff should deal with material protected by legal professional privilege.
The MI6 papers noted: “Undertaking interception in such circumstances would be extremely rare and would require strong justification and robust safeguards. It is essential that such intercepted material is not acquired or used for the purpose of conferring an unfair or improper advantage on SIS or HMG [Her Majesty’s government] in any such litigation, legal proceedings or criminal investigation.”
The internal documents also refer to a visit by the interception commissioner, Sir Anthony May, last summer to examine interception warrants, where it was discovered that regulations were not being observed. “In relation to one of the warrants,” the document explained, “the commissioner identified a number of concerns with regard to the handling of [legal professional privilege] material”.
Amnesty UK’s legal programme director, Rachel Logan, said: “We are talking about nothing less than the violation of a fundamental principle of the rule of law – that communications between a lawyer and their client must be confidential.
“The government has been caught red-handed. The security agencies have been illegally intercepting privileged material and are continuing to do so – this could mean they’ve been spying on the very people challenging them in court.
“This is the second time in as many weeks that government spies have been rumbled breaking the law.”