The Government has been forced to release secret policies which show that GCHQ and MI5 have for years advised staff that they may “target the communications of lawyers,” and use legally privileged material “just like any other item of intelligence.”
The disclosure comes in response to a case brought in the Investigatory Powers Tribunal (IPT) by the al Saadi and Belhadj families, who were subjected to rendition and torture in a joint CIA-MI6 operation. Both families — assisted by legal charity Reprieve and solicitors Leigh Day — have brought litigation about the kidnappings. The families allege that, by intercepting their privileged communications with Reprieve and Leigh Day, the Government has infringed their right to a fair trial.
Legal privilege is a central principle of British law, which protects confidential communication between a lawyer and their client. If the Government is able to access such communications, it hands itself an unfair advantage in court.
The Government documents show that there is a real risk that private lawyer-client material intercepted by the agencies has been allowed to “taint” the case brought in the High Court against the Government by the victims of the 2004 rendition operation, which included four children aged 12 and under and a pregnant woman among its victims.
Because of a lack of effective information barriers between the intelligence officers carrying out interception and the agencies’ legal staff, Reprieve is concerned that Government lawyers involved in the High Court case may have seen confidential communications between the families and their legal team. The documents show that MI5 only put in place such barriers in January this year — once the IPT claim was already underway and a judicial review was threatened — while MI6 has almost no guidance for its officers on the interception and use of legally privileged material.
Although there is no indication that the documents released today contain any national-security sensitive material, the Government had previously claimed on three separate occasions that they could not disclose them on this basis — before agreeing to do so last week.
Cori Crider, a director at legal charity Reprieve and US counsel for the Belhadj and al Saadi families said:
“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?”
Richard Stein, Partner at Leigh Day said:
“After many months’ resistance, the security services have now been forced to disclose the policies which they claim are in place to protect the confidential communications between lawyers and their clients. We can see why they were so reluctant to disclose them. They highlight how the security services instruct their staff to flout these important principles in a cavalier way. We hope the Tribunal will tell the government in no uncertain terms that this conduct is completely unacceptable.”