Legal privilege broken by government agencies, documents show

UK intelligence agencies have been permitted to intercept lawyer-client communications covered by legal professional privilege, newly released official documents show.

Guidance documents permitting the surveillance were released in proceedings before the Investigatory Powers Tribunal, on behalf of two Libyans who are suing the UK Government for alleged complicity in their detention and rendition by US authorities. Ministers had sought to prevent disclosure of the documents on national security grounds.

Each of the three agencies – the security intelligence body MI5, the worldwide intelligence-gathering operation MI6, and the electronic intelligence-gathering organisation GCHQ – is involved in the disclosures. It appears that until recently, none of them had policies in place to prevent intercepted privileged material being used. 

MI5 continues to regard legally privileged material as "just like any other item of intelligence", though notes the "particular sensitivity" attached to it and the need to "test thoroughly" the justification for its use.

GCHQ says its staff "may in principle target the communications of lawyers", though they "must give careful consideration to necessity and proportionality".

It also appears that in one case involving MI5, Government lawyers may have wrongfully benefited from intercepted communications.

Before the tribunal, Dinah Rose, QC for one of the men, said there was a real risk that confidence in the justice system would be undermined if these matters were not fully explored. "These policies raise a strong prima facie case that there has been abuse of process and that real injustices may have been done."

She added that there were still no proper barriers between those receiving the intercepted material and those handling litigation.

Rachel Logan of Amnesty UK said the practice gave the Government "an unfair advantage akin to playing poker in a hall of mirrors".