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UK spies accessed lawyers' papers


The MI5 building in London

The MI5 building in London

The MI5 building in London

Security and intelligence agencies have accessed lawyer-to-client materials covered by legal professional privilege (LPP), previously top-secret documents have revealed.

MI5, MI6 and GCHQ until recently did not have policies that blocked their lawyers and officials from seeing intercepted privileged material about cases they were involved in, the documents also show.

Policy papers held by all three agencies on dealing with LPP material have been disclosed through the Investigatory Powers Tribunal (IPT), which examines complaints against the intelligence services and government use of surveillance.

The documents have been released following a claim brought on behalf of Abdel Hakim Belhaj and Sami al-Saadi who, along with members of their families, were kidnapped and sent to face punishment in Libya in 2004.

Campaigners and lawyers involved with the hearing said the disclosures raise "troubling implications for the whole British justice system" as the Government could be handed an unfair advantage in court if it has access to privileged materials.

"It's now clear the intelligence agencies have been eavesdropping on lawyer-client conversations for years," said Cori Crider, a director at Reprieve and US counsel for the Belhaj and al-Saadi families.

"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?"

Disclosure of all the materials was resisted on national security grounds by the Government until an IPT hearing last week when it reversed its position.

LPP ensures clients know that certain documents and information provided to lawyers cannot be disclosed and recognises the client's human right to be candid with his legal adviser without fear of later disclosure to his prejudice.

GCHQ policy for its staff says "you may in principle target the communications of lawyers", although it adds "you must give careful consideration to necessity and proportionality".

The Security Service, also known as MI5, tells its intelligence officers that "in principle, and subject to the normal requirements of necessity and proportionality, LPP material may be used just like any other item of intelligence".

The guidance goes on to flag the "particular sensitivity" attached to privileged material and the need to "test thoroughly" the justification for its use.

MI5 guidance published in January says there is no "legal prohibition" on its lawyers reading privileged material relating to civil claims in which they are advising; however, it should be "avoided" to prevent prejudicing the proceedings.

Before this, policy enacted in April 2011 said there was no requirement for MI5 staff to decline privileged material if they are advising on a matter related to that material.

In at least one instance, MI5 reveals that privileged information has been inappropriately passed to lawyers involved in litigation against the agencies where "the potential for tainting" was identified.

GCHQ guidance enacted in 2010 explained that its information about an "event" - such as the fact of a meeting with a lawyer, client or a witness - does not require protection.

The Secret Intelligence Service (SIS) guidance states that legal advisers should ensure privileged material is not passed to other staff working on the civil proceedings.

However, the policy outlines potential exceptions where there is "an overriding intelligence requirement" or when the information contains references to MI6 staff, in which case "action may need to be taken to protect staff".

After the Edward Snowden disclosures on mass surveillance were published, f amilies involved with the Belhaj case brought a claim to the IPT over concerns that their private discussions with legal charity Reprieve and law firm Leigh Day were being intercepted.

The families have brought litigation about the kidnappings and allege that any interception of privileged communications has infringed their right to a fair trial.

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."

Cases affected could include hearings at the Special Immigration Appeals Commission, control order hearings and civil proceedings brought in the wake of the Snowden revelations, the lawyers claim.

Senior Tory MP David Davis described the revelations as a "national scandal" that has broken a longstanding convention that lawyer-client communications are protected from state intervention.

Deputy Speaker Eleanor Laing said it was not a matter for her and that no one had contacted her about explaining the news to MPs.

Raising a point of order in the House of Commons, Mr Davis said: "A matter which amounts to a national scandal broke this morning in a public hearing of the Investigatory Powers Tribunal.

"It has long been taken as the standard in this country that the relationship between a lawyer and a client is protected by privilege and communications between them are protected from intervention by the state.

"What has become clear this morning is that not only is that not the case at the moment but that each of the three agencies have got policies for handling legally-protected material and in one case for deliberately withholding that material even from secret courts and security-cleared special advocates.

"My question to you is how do we deal with this? Have you had any approaches from the Government to come to this House to explain precisely how this came about?"

Ms Laing replied: "The House will be aware that it's not a matter for immediate action by the chair so I cannot give you advice except to say that I have no notice of anyone wishing to come to the House to explain the matter further.

"The matter of privilege is one of very great importance to this House and to this Parliament and I'm sure that what you have said will be noted by those who ought to note it."

Rachel Logan, Amnesty UK's legal adviser, said: "We now know that the Government sees nothing wrong in routinely spying on the confidential communication between lawyers and clients.

"This clearly violates an age-old principle of English law set down in the 16th century - that the correspondence between a person and their lawyer is confidential.

"It could mean, amazingly, that the Government uses information they have got from snooping on you, against you, in a case you have brought.

"That affords the Government an unfair advantage akin to playing poker in a hall of mirrors."

Liberty's director of policy, Isabella Sankey, said: "This explosive disclosure makes a sham of the privileged relationship between lawyer and client and undermines the fairness of any case involving the state.

"It's shameful that they indulge in blanket surveillance. It's a scandal that they target the lawyers of those that challenge their actions."

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