There was a time when it was difficult to engage anyone’s interest in the subject of government surveillance of lawyers’ correspondence – I suppose because no-one thought that it happened. But Edward Snowden’s revelations changed all that. And now such surveillance is rarely out of the news.
In the UK, there was the recent court case involving the Data Retention and Investigatory Powers Act 2014 (DRIPA), where part of the Act was disapplied after March 2016. The court had a special section on legal professional privilege, where it cast doubt on the interpretation of one of the DRIPA Codes of Practice that only the content of lawyer-client messages is subject to protection from surveillance (and not meta-data, like the time of sending the message). The court concluded that lawyers’ privilege needs special consideration and attention.
It is interesting to note that the court highlighted at the outset of its judgement that the case could only be brought because the UK is a member of the EU: ‘At common law, Acts of the United Kingdom Parliament are not open to challenge in the courts. But the position under EU law is different. Decisions of the CJEU as to what EU law is are binding on the legislatures and courts of all Member States.’ Is this yet another point to be brought into the array of arguments during the forthcoming referendum?
A UK Member of the European Parliament – Claude Moraes, member for London, who is also chair of the Parliament’s Civil Liberties, Justice and Home Affairs Committee (LIBE) – is the sponsor of a resolution in the Parliament on electronic mass surveillance of EU citizens, which is currently making its way through the Parliamentary process. The resolution welcomes the inquiries of the German Bundestag, the Council of Europe, the United Nations and the Brazilian Senate (that’s it for enquiries), but remains ‘highly disappointed by the overall lack of sense of urgency and willingness shown by most Member States and the EU Institutions to seriously address the issues raised’, and ‘considers the Commission’s reaction to the resolution so far highly inadequate given the extent of the revelations’, going so far as to threaten the Commission that it will ‘place certain budgetary resources for the Commission in a reserve until all recommendations have been properly addressed’. The huffing and puffing shows how hard it is to force governments and their agencies to change their ways.
Various amendments have been proposed to the resolution, for instance that ‘mass surveillance severely undermines the rights of EU citizens to be protected against any surveillance of confidential communications with their lawyers and therefore violates the EU Charter of Fundamental Rights, notably Articles 6, 47 and 48’ along with the directive on right of access to a lawyer (2013/48/EU).
In France, they have recently undergone a similar process to our DRIPA case, but before rather than after the law was enacted. French law permits a bill to be submitted to the Constitutional Council for an opinion on its constitutionality, and this is what happened with the recent Intelligence Bill (Loi renseignement), passed in the wake of the Charlie Hebdo attack. Its decision was published on 23 July, finding the bill constitutional overall and only censoring some articles. The bill is now on its way to become law. One of the articles censured aimed to create a special emergency procedure to intercept communications in case of ‘urgent threats’ without any prior authorisation. As a result of the decision, this procedure will not be applied to the surveillance of lawyers.
Finally, I reported recently about a court decision in the Netherlands, where the law firm of Prakken D’Oliveira sued the Dutch government for spying on its communications. The law firm won the case, but the government has now appealed. The grounds of appeal are the following: the decision does not sufficiently take into account the difference between the position of a lawyer within the context of intelligence gathering for national security purposes and the position of a lawyer in relation to criminal investigations; the case law of the European Court of Human Rights does not require the use of intelligence gathering methods be subject to the supervision of a judicial authority - other forms of review and control, such as a parliamentary body with sufficient competence, may also be adequate; and by requiring the provision of judicial review before the use of special powers against persons having legal privilege, the court de facto obliged the Dutch State to adopt new legislation, which the court had no competence to do (even though the Dutch government has announced that it will provide for some kind of independent review regarding the tapping of lawyers).
The good thing about these examples is that they keep lawyers’ values at the forefront of decision-making on surveillance.