Lawyer surveillance after Charlie Hebdo

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  • Jonathan Goldsmith

Lawyer-client confidentiality could come under renewed threat following the recent terrorist attacks in Paris.

The surveillance of lawyers by governments has again burst onto the agenda. There was a debate on the subject in the European Parliament a few days ago, raised by a case in the Netherlands.

According to an account on a Dutch firm’s own website, ‘the Dutch Intelligence Service (AIVD) has often tapped the lawyers of Prakken d’Oliveira, and has done so for a long time. The Dutch minister of the interior held that a complaint filed about the tapping of Prakken d’Oliveira was partially justified… “[C]ommunication that can clearly not be considered relevant for any investigation by the AIVD” was also transcribed’.

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The Dutch are not alone. I have written before about the tapping of the phone of Nicolas Sarkozy’s lawyer, even when the lawyer was speaking to his own bar about the case. And then there are the policies of GCHQ, MI5 and MI6 in relation to listening in to lawyer-client conversations.

In Ireland, a commission of investigation was set up in April last year under Mr Justice Nial Fennelly to examine covert recording of phone calls in some Garda stations between 1980 and November 2013.

These examples are of course not all about terrorist cases. And it is clearly not only an EU problem. There was the instance of a US firm spied on during an international trade negotiation, uncovered by the Snowden revelations.

Such questions are easily raised in the European Parliament, because the EU institutions have no competence for national security matters. MEPs can rage as much as they like (and they mostly made very supportive noises during the recent debate) – while those in authority can wash their hands of responsibility.

That is what representatives of the council and commission did during the debate, saying that the surveillance in question was the responsibility solely of national governments, that they were not informed and had no power to intervene.

But this topic has particular resonance following the horrible attacks at Charlie Hebdo in Paris. I know that every newspaper article these days seems to feel the need to link itself to Charlie Hebdo, but we should not be fooled that the attacks will not in due course affect lawyers. There is already talk in the EU about the equivalent of a ‘Patriot Act’ directive.

In the UK as we know, there is frantic to-and-fro between the parties about resuscitating the Communications Data Bill, with the home secretary saying that the intelligence services need greater access to our data. Whenever there is legislation for greater access, you can be pretty sure that lawyer-client communications will be swept up thoughtlessly into new powers. Governments (and parliaments) usually don’t even think about the impact on our sector.

This is what happened post-9/11, when the anti-money laundering legislation - including the lawyer’s duty to report suspicious transactions - was passed during the immediate period of outrage.

We need to be ready with a principled and firm ‘no’ to any governmental access (or increased access) to lawyer-client data. We need to prepare the ground with arguments on rule of law, democracy, equality of arms and access to a lawyer. Others in the debate will have more general points about whether the authorities do not already have all the powers they need, and whether greater powers will actually yield more useful information.

But then we come to an interesting question, which I hardly wish to raise because an absolute ‘no’ must be the final answer. All spooks, politicians and civil servants look away now. GCHQ, switch off your cameras. What follows is a private debate among lawyers.

The question is whether we lawyers need to have default mechanisms ready in our lobbying armoury in case the arguments in the coming legislative struggle over data access go against us. We know that governments will strike quickly, while the public is still emotional. Here are some of the questions we might want to ask.

If an absolute ‘no’ to an extension of existing powers is ruled out, should there be access (or increased access) to lawyer-client data only if a judge permits it? Should it only be possible if the lawyer is complicit in the illegality being monitored? Or only if the bar president is warned that such government surveillance of the lawyer is about to take place (which is the case in Belgium)?

Or does thinking about such things weaken our absolute ‘no’? Should there not even be an internal debate within the legal profession so as to prepare ourselves for the political process about to take place?

There will be different views about both the principle and the possible default mechanism. I obviously hope that we are not forced to go down that path. But I would prefer that we have taken steps to be ready to protect our core values.

Jonathan Goldsmith is consultant to, and former secretary general of, the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs

Readers' comments (3)

  • Perhaps the absolute 'no' needs to be reinforced by the use of sophisticated encryption software one step ahead of the intelligence agencies ~ will we yet live to see the film of how the story of the BPFL (Bletchley Park for Lawyers) successfully unfolded?

    Come to think of it, does this not raise the unpalatable spectre (no reference to the forthcoming Bond film intended) of a society at war with itself?

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  • In a recent case soon to be heard by the Supreme Court under the banner of Freedom of Speech an injunction was granted that a performing artist from publishing his memoir on the grounds that its contents would be distressing for his son to read. The artist’s ex-wife had argued that his book’s descriptions of the sexual abuse that he suffered as a child were so disturbing that their son would suffer catastrophic psychological distress if he were to read it

    The Supreme Court is examining the way in which the appeal court ruled that publication of the book could amount to a civil wrong, established by a piece of Victorian case law known as Wilkinson v Downton. In this case, a man who played a practical joke on an east London pub landlady in 1897 was found to be liable for “intentional infliction of mental distress'. Matthew Nicklin QC, for the boy, said that in attempting to publish the book, the artist was reneging on an agreement made around the time of the divorce “to use his ‘best endeavours to protect the child from any information concerning [his] past previous history … which would have a detrimental effect on the child’s wellbeing’.”

    He also argues that the right to free expression, as guaranteed by the European convention, is a qualified right, which must be balanced against the well being of others. This is precisely the point made eloquently by Justice O W Holmes that, ' freedom of speech does not protect a man who shouts fire across a crowded theatre' less blasphemy committed in the full glare by men of little knowledge mocking our most revered and sacred prophet whether or not we are of faith. To that extent it can be charged and 'J' Accuse' the French authorities of a failure in tackling provocateurs for it seems 'power without responsibility is the prerogative order of the harlot running throughout the ages'.

    Violence of all forms is unacceptable in a civilised society of equals, but we must not lament on failure to address the very provocateurs of extremism for the sword of truth is mightier than a sadistic pencil used to incite hatred of the worse from- we are not amused. A society that imposes criminal sanctions against free persons for wearing the veil seen as a threat to civility is a society confused, fragile and fragmented. There is no such thing as a monolithic society of unequal’s but of rich multicultural citizens of equals, less we forget our history and lesson from Mr Hitler. Laws must be there to protect all citizens against attack of all forms not simply violence but abuse of the worse kind; the responsibility of that scared protection falls on all of us- 'J' Accuse'.

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  • I maybe misguided but I think the security services police HM Government are made up of fundamentally decent people who have to tackle the nightmare of mass terrorist murder. I have no problem in allowing access to lawyer client data perhaps subject to certain safeguards. I have no fear they will impose a police state . They are British after all. I perfectly understand why a European may be fearful

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