Does the battle against terrorism mean that we should accept some interception of lawyer-client messages?

Well, well, well – which side are lawyers to support? This week saw a clash of values in which we are forced to choose between two strong and sometimes opposing benefits.

On the one hand, the new head of GCHQ, Robert Hannigan, accused the US internet giants in a widely publicised article in the Financial Times of becoming ‘the command and control networks of choice’ for terrorists, citing Islamic State (Isis) as an example of a violent group benefiting from the new post-Snowden climate.

‘Techniques for encrypting messages or making them anonymous, which were once the preserve of the most sophisticated criminals or nation states, now come as standard. These are supplemented by freely available programmes and apps adding extra layers of security.’ He added that the intelligence agencies have a good story to tell about their treatment of data privacy. Obviously, when they are investigating and protecting us from people hell-bent on murdering us, most people would support GCHQ.

On the other hand, we learned from Reprieve, the international NGO which fights for rights to a fair trial, that this same GCHQ, together with MI5 and MI6, have questionable policies in relation to the protection of confidential information which passes between lawyers and their clients. The Reprieve case is that of Mr Belhadj. To summarise briefly, he was an opponent of Colonel Gaddafi who was rendered with the assistance of British intelligence to Libya during Colonel Gaddafi’s rule, where he was tortured.

Documents implicating British intelligence were found in Tripoli after Colonel Gaddafi was overthrown. Reprieve forced the UK government to disclose extracts from MI5’s, MI6’s, and GCHQ’s policies on lawyer-client spying. To be fair to GCHQ, they come out of it much better than MI5 and MI6 (as Reprieve points out, the various government spying agencies have different and inconsistent advice to their staff about how to deal with lawyer-client confidentiality).

Here is some of GCHQ’s advice, the scope of which may chill you:

‘19. You may in principle target the communications of lawyers. However, you must give careful consideration to necessity and proportionality, because lawyer-client communications are subject to special protection in UK law on grounds of confidentiality known as Legal Professional Privilege. If you intend to or have inadvertently targeted lawyers’ communications, and it seems likely that advice to a client will or has been intercepted, you must consult Legal at GCHQ who will seek LA advice.’

GCHQ does not consider ‘events’ data, such as whether there was contact between a lawyer and X, to be subject to legal professional privilege.

To return to my clash of values, these policies (and, as I say, MI5’s and MI6’s are worse) are something which I suspect lawyers will not in principle accept – particularly if government lawyers on one side of a case gain access to information about what has passed between the lawyer and client on the other. Is this part of the good story in relation to data privacy which Mr Hannigan has to tell us? Will this persuade lawyers to support his plea to US tech giants to reduce the power of their encryption and other privacy software, to allow GCHQ access?

Many questions arise. Does the battle against horror-shows like Isis mean that we should accept some interception of lawyer-client messages? How do you arbitrate when two strong benefits clash? And the old chestnut: Quis custodiet ipsos custodes?

My answer is this. We are lawyers, and it is our role in a democratic society, which accepts that there are competing claims and values, to look after lawyers’ interests – which in this case are based on the interests of our clients and the rule of law. No one else will take on the task. We are not obliged to look after the interests of the whole of society when acting for our clients.

As such, we should condemn the government’s revealed policies for the officially sanctioned breach of lawyer-client confidentiality.

But what about the horrible case where access to the information which passes between lawyer and client may be crucial in stopping an attack? Let us suppose that the information arose through an indiscriminate trawl and not a targeted search of suspicious activity. Would you be prepared to die for the sanctity of confidentiality?

That’s a question to ponder.

Despite my unreserved and wholehearted support for the principle of confidentiality, I would not be prepared to die for it. Would you?

Jonathan Goldsmith is 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