THE STATE must protect freedoms as well as safety, says James Wolffe
Recently, I attended a meeting of the Council of European Bars and Law Societies, the CCBE, in Gdansk. The CCBE represents the bars and law societies of Europe – and, through them, more than one million European lawyers. It provides a forum within which the European bars can discuss issues of common interest and is the voice of the legal profession at European level.
The Gdansk meeting took place in the Occupational Health and Safety Building of Gdansk Shipyard. From this building, Solidarity, led by Lech Walesa, organised the strikes which led, in 1980, to the recognition of free trade unions for the first time in Communist Europe – the first step towards a free and democratic Poland, and, indeed, towards the collapse of Communism across eastern and central Europe.
We heard addresses from two sons of Gdansk: Lech Walesa himself, and Donald Tusk, the current President of the European Council. Lech Walesa spoke about the events of 1980. He communicated the moral courage of those involved, when no-one could have predicted how events would unfold, and there was a substantial Soviet military presence in Poland.
President Tusk referred, in his remarks, to the role of the legal profession in upholding the rule of law as an element of a free and democratic society. It was moving to be reminded of that truth, in that setting, and in the company of colleagues from the independent bars and law societies of countries which, before 1989, did not enjoy rights and freedoms which we take for granted.
The involvement in the CCBE of lawyers from countries with very diverse historical experiences enriches its work. Take the issue of surveillance, which is currently on the CCBE’s agenda. Lawyers from countries which, before 1989, had Communist regimes have a particularly acute appreciation of the way in which state surveillance can undermine not only individual privacy but – if directed at lawyers – the fair administration of justice, and the rule of law itself.
As my 17th-century predecessor, Sir George Mackenzie, said: “It is in the interest of the Commonwealth to have that freedom allowed, and secured without which men cannot manage their affairs and private business.” He recognised then, as all of us should today, that the confidentiality of communications between lawyers and their clients must be protected if clients are to be properly represented, and if lawyers are to fulfil their proper role in the administration of justice.
The issue is a very live one. In February, the UK government conceded, in the Belhaj case, that since January 2010 the regime for interception/obtaining, analysis, use, disclosure and destruction of legally privileged material has been unlawful; and the government is consulting on a revised code of practice. On 1 July, a Dutch court concluded – in a case in which the CCBE intervened – that the arrangements under which the Dutch security services may breach lawyer-client confidentiality are not attended with sufficient safeguards. The court has given the Dutch government six months in which to remedy the deficiencies.
Surveillance of lawyers is only one aspect of much larger issues concerning the use of surveillance powers. Three weeks ago, David Anderson QC, the UK government’s Independent Reviewer of Terrorism Legislation published a review of the current legislative arrangements. He concluded that we need a comprehensive new law. He described the current legal regime as “fragmented, obscure, under constant challenge and variable in the protections that it affords the innocent”.
No sensible person denies the need for the security services and other agencies, who are dedicated to keeping us safe, to have the powers they need to fulfil their tasks. But if public bodies are to be given intrusive powers, those powers must, as Mr Anderson said, “be shown to be necessary, clearly spelled out in law, limited in accordance with international human rights standards and subject to demanding and visible safeguards”. Establishing a regime which meets these criteria should only enhance the confidence of the public in the essential work of those agencies.
I hope that the UK government will accept Mr Anderson’s recommendation and bring forward legislation which strikes the right balance between security and privacy. I hope too that, in framing such legislation, the government will recognise that, in relation to lawyer-client communications, what is at stake is not privacy alone, but the absolute right, which we all enjoy, to an effective defence and to a fair trial. For the state has a responsibility to protect not only our safety, but our freedoms, too.
• James Wolffe is Dean of the Faculty of Advocates www.advocates.org.uk