Friday, March 13, 2009

Law Lord: government sanctioned illegal surveillance

Via Nicholas Bohm on the ukcrypto list, comes a link to a fascinating decision from the House of Lords this week on the surveillance of lawyers' discussions with their clients facilitated by the Regulation of Investigatory Powers Act, 2000. Lord Phillips, dissenting from the majority view, says:
"The appeal raises... two issues of general importance:

i) What impact, if any, does the Regulation of Investigatory
Powers Act 2000 (“RIPA”) have on the common law right
of legal professional privilege (“LPP”)?
ii) What impact, if any, does RIPA have on the right accorded
by a number of statutory provisions of a person detained in
a police station or in prison to consult a lawyer privately?

52. On 30 November 2007 the Divisional Court held that monitoring
of legal consultations in police stations or prison cannot lawfully be
authorised under the Code in its present form. The reaction of the
Secretary of State to that finding was made clear by Mr Fordham in his
written case on her behalf. This was that, contrary to the decision of the
Divisional Court, the Code covered consultations between legal advisers
and their clients. I quote from paragraph 7(4)(5) that case:

“(4) The safeguards contained within RIPA and the Code
are sufficient to ensure, in the case of directed surveillance
in both of the relevant factual scenarios, the requisite
quality of law to satisfy the Art. 8 requirement “in
accordance with the law”.

(5) The Secretary of State nevertheless recognises the
sensitivities that surround the possible use of directed
surveillance in the two factual contexts at issue, and has
carefully considered the Divisional Court’s concern
regarding the adequacy of the safeguards that would apply
at the point when any such directed surveillance was
authorised. The Secretary of State would wish to make
clear at the outset that, as a matter of policy, she considers
it desirable to take the steps necessary to remedy the
concern identified by the Divisional Court. In effect,
directed surveillance of legal consultations in detention
would fall to be assimilated to “intrusive surveillance” for
the purpose of prior authorisation. That could readily and
properly be achieved by an order under RIPA s. 47(1)(b)
characterising as “intrusive”, surveillance in locations
where it is known that consultations are taking place
between detainees and their legal advisers.”

53. This stance was not satisfactory. The Divisional Court did not
express concern. It made a finding of law against the Secretary of State.
She chose not to appeal against that finding. In those circumstances it
was not open to her to consider as a matter of policy whether to “take
the steps necessary to remedy the concern identified by the Divisional
Court”. The position was simply that unless and until she took the
appropriate steps she could not lawfully continue to carry out
surveillance on legal consultations in prisons or police stations..."
Baroness Hale however, reluctantly says:
"67. I agree, for the reasons given by my noble and learned friends
Lord Hope of Craighead and Lord Carswell, that RIPA does permit
the covert surveillance of communications between lawyers and their
clients, even though these may be covered by legal professional
privilege and notwithstanding the various statutory rights of people
in custody to consult privately with their lawyers. This is an
unpalatable conclusion, but one to which I am driven both by the
plain words of the Act and by the history of legislation on this
Lord Carswell:
"92. The appellants have brought this appeal in order to challenge the
finding of the majority of the Divisional Court that RIPA was
intended to extend to legal or medical consultations...
The Secretary of State has, however, stated
that she is willing to make an order under section 47(1)(b) of RIPA
characterising surveillance of consultations between detainees and
their legal advisers as intrusive surveillance, with the safeguards
which go with that level of surveillance. If done, this would make
consideration of directed surveillance of such consultations
superfluous. It is regrettable, however, that no step has yet been
taken to make the necessary order, notwithstanding the fact that the
present practice was declared unlawful over a year ago, and no
appeal was brought against the court’s decision. Having said this, I
do not propose to enter into further discussion of the proportionality
of directed surveillance of legal or medical consultations, save to say
that I agree with the conclusion reached by the Divisional Court...

100. I commence with the wording of RIPA. In its natural and
ordinary sense it is capable of applying to privileged consultations
and there is nothing in its wording which would operate to exclude
them... It seems to me unlikely that the
possibility of RIPA applying to privileged consultations could have
passed unnoticed. On the contrary, it is an obvious application of the
Act, yet no provision was put in to exclude them.

105. I conclude accordingly that Parliament intended that the covert
surveillance provisions of RIPA should extend to the type of
lawyer/client and doctor/patient consultations which are ordinarily
protected by legal professional privilege."
Lord Neuberger:
"106. In my view, Part II of the Regulation of Investigatory Powers Act
2000 (“RIPA”) permits covert surveillance of communications and
consultations between a person in custody and his or her lawyer,
notwithstanding that such communications enjoy legal professional
privilege, and despite such a person’s statutory right to consult a
solicitor privately."

108. If covert surveillance is carried out in accordance with Part II of
RIPA, the natural meaning of the opening words of section 27(1) is
that, whatever rights would otherwise be infringed thereby, the
surveillance is nonetheless lawful. As Lord Phillips’s admirable
survey of the law demonstrates, this case involves two rights, which
are different, but very closely connected, namely the right of a
person to consult a lawyer in private, and the right to legal
professional privilege in connection with communications with one’s
lawyer. Any modern civilised legal system recognises the
fundamental importance of these two rights, and therefore one feels
an instinctive initial reluctance to hold that section 27(1) permits
covert surveillance of such consultations and communications, as it
would appear significantly to undermine such important rights.
109. However, while these two rights are very important, neither can
possibly be regarded as unqualified. Both rights can self-evidently
be abused for improper, even criminal, purposes; indeed, as a result
of such abuse, the rights themselves could fall into disrepute...

111. It must be acknowledged that there are two inherent paradoxical
problems in the exercise of intercepting or listening in on privileged
communications and private consultations between lawyer and
client. First, the authorities cannot know if the privilege and right to
privacy are being abused and that the iniquity exception applies,
until the interception or listening in has occurred and its results
examined. Secondly, the authorities cannot warn the parties in
advance that interception or listening in will or will not occur, as to
do so would defeat the whole point of the exercise. Further, it is selfevident
that knowing that a consultation or communication may be
the subject of surveillance could have a chilling effect on the
openness which should govern communications between lawyer and
client, and is the very basis of the two rights. However, none of these
problems can call into question the lawfulness of the statutory
authorising of the surveillance of privileged communications,
although they underline the fundamental requirement of clear and
stringent rules governing the authorisation, circumstances, manner,
and control over the fruits, of any such surveillance.

112. Accordingly, there is nothing intrinsically objectionable in a
statute which authorises surveillance of communications and
consultations between a lawyer and client, provided that the statute
includes safeguards which ensure that such authorisation complies in
all respects with the requirements of the Convention. Additionally, I
see no reason why the safeguards cannot be in a Code of Practice, at
least if the statute provides that such a code has to be created and
complied with (as is the position here – see sections 71 and 72 of
RIPA); that is all the more true where, as here, the code has to be
laid before Parliament...

118. Lord Phillips has characterised the nature of the decision of the
majority of your Lordships as being that RIPA permits the Code to
authorise surveillance of communications between lawyers and their
clients, whether or not in custody. That is indeed as far as our
decision in this case goes, and we should not, I think, be taken as
thereby endorsing the provisions of the Code, as we are not directly
concerned with those provisions, and, in particular, whether they
comply with the requirements of the Convention. Indeed, in my
view, it must be highly questionable whether the Code sufficiently
clearly identifies (or limits) either the circumstances in which
surveillance may or may not occur, or how the information thereby
obtained may or may not be used. At least as at present advised I
share the doubts and concerns about the Code expressed by Lord
Phillips at paras 49 to 51. The question of the use of material
obtained by surveillance could have arisen in one of the cases before
us, namely that of M, had he not been released without charge, and,
in that connection, I agree with Baroness Hale’s observations at
paras 71to 74.

119. I also respectfully agree with what Lord Phillips says at paras 52
and 53. Having decided not to appeal the Divisional Court’s decision
that surveillance of privileged and private consultations under the
present regime is unlawful, the Secretary of State should have
ensured that such surveillance did not take place or she should have
promptly changed the regime so as to comply with the Divisional
Court’s decision. As Lord Carswell points out, more than a year has
elapsed since that decision, and your Lordships were told that the
Secretary of State was not even in a position to produce a draft
regulation embodying the changes to ensure that such surveillance
was carried out legally. Unless no surveillance of privileged and
private consultations has been going on for the past year in the
United Kingdom (which appears most unlikely), this strongly
suggests that the Government has been knowingly sanctioning illegal
surveillance for more than a year. If that is indeed so, to describe
such a state of affairs as “regrettable” strikes me as an
So RIPA can facilitate surveillance of privileged consultations between solicitors and clients but only under carefully regulated conditions which should be specified in the RIPA Code of practice, which in turn would make it compliant with the European Convention on human rights. Though it wasn't a question for the Lords in this instance, however, the Code was declared not compliant with the Convention by the Divisional Court a year ago and so, Lord Neuberger says, the government has probably been "knowingly sanctioning illegal surveillance for more than a year" and government suggestions that such a state of affairs is "regrettable" strikes him as an "understatement."

Translating from law-lord-ese he's basically saying the Secretary of State has been outrageously incompetent in not getting the RIPA Code put in order.

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