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’.
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