Governments should never be allowed to authorise surveillance of lawyers’ secret conversations – otherwise politicians become judge and jury in their own case.
Whom would you prefer to authorise secret surveillance of your client secrets – a politician or a judge? That is a bit of a trick question, because the real answer is ‘neither, the confidentiality between lawyer and client is absolute’, unless the lawyer’s communications are part of a criminal purpose.
But governmental opinion will not allow this purity, and so the question still arises. I see from early indications that the government is thinking of opposing the recommendation made in the report by David Anderson QC into mass surveillance - A Question of Trust – Report Of The Investigatory Powers Review - in which he said that the current system of authorisation by politicians should be replaced by one involving judges.
There are arguments both ways. The politician is probably better able to see the secret intelligence in the round and in all its depth; the politician has been elected to make difficult judgements on political matters on our behalf (whereas the judge is unelected). But the arguments on each side are not balanced. There is a clinching argument on behalf of the judiciary, which can be best seen from the following case in which my organisation, the Council of Bars and Law Societies of Europe (CCBE), is involved in the Netherlands.
The case concerns the law firm of Prakken d’Oliveira. In December 2014, it became known that the Dutch intelligence service (AIVD) had spied on the law firm, frequently and over a long period. According to the relevant government minister, the AIVD should be allowed to tap a lawyer’s telephone conversations, even if that lawyer is not a threat to national security. Prakken d’Oliveira believes that the Dutch regulations need to be amended so that a lawyer’s conversations can only be tapped after a judge has given permission to do so.
Here is a clear reason why government ministers should not make the decision – because otherwise they are judge and jury in their own case.
Separating the judicial decision from the role of one of the parties is a longstanding and essential element in justice and the rule of law. That is why we should support the Anderson recommendation for judicial authorisation.
It is worth repeating the report’s recommendations in full, since – although they do not allow for absolute confidentiality – they treat lawyer-client confidentiality with some respect (Recommendations 67-69):
‘67. When the communications data sought relates to a person who is known to be a member of a profession that handles privileged or confidential information (including medical doctors, lawyers, journalists, members of parliament or ministers of religion), the new law should provide for the DP [Designated person (including in the security and intelligence agencies)] to ensure that (1) special consideration is given to the possible consequences for the exercise of rights and freedoms, (2) appropriate arrangements are in place for the use of the data, and (3) the application is flagged for the attention of ISIC inspectors [the new judicial body, the Independent Surveillance and Intelligence Commission].
‘68. If communications data is sought for the purposes of determining matters that are privileged or confidential such as (e.g.) (1) the identity or a witness or prospective witness being contacted by a lawyer or (2) the identity of or a journalist’s confidential source, the DP should be obliged either to refuse the request or to refer the matter to ISIC for a judicial commissioner to decide whether to authorise the request.
‘69. A Code of Practice, and/or ISIC guidance, should specify (1) the rare circumstances in which it may be acceptable to seek communications data for such a purpose, and (2) the circumstances in which such requests should be referred to ISIC.’
This is little different from the conclusion of another recent report on mass surveillance (they come thick and fast these days, for obvious reasons). This one was from the Council of Europe – Venice Commission: Update of the 2007 Report on the Democratic Oversight of the Security Services and Report on Democratic Oversight of Signals Intelligence Agencies, (adopted in March 2015). The report said:
‘Methods must be devised to provide lawyers and other privileged communicants and journalists with some form of protection, such as requiring a high, or very high, threshold before approving signals intelligence operations against them, combined with procedural safeguards and strong external oversight.
‘…But unless there is evidence of involvement of the lawyer, priest etc. in crime or conduct damaging to national security, interception of privileged communications by means of signals intelligence should not be lawful.’
This is good news. It would be even better if confidentiality were treated as absolute from the point of view of government spying, unless the lawyer is involved in a criminal purpose. But until that happens, we lawyers should campaign to ensure that it is judges who decide, not politicians.