Counsel for Abdel Hakim Belhaj says government is trying to conceal its unlawful monitoring of lawyer-client conversations

This article is more than 5 years old

This article is more than 5 years old

The government is attempting to keep secret the extent of the intelligence services’ unlawful behaviour, a tribunal has heard.

An application for a confidential judgment that would never be published has been made by lawyers for MI5, MI6 and GCHQ in a highly sensitive case about the interception of legally privileged conversations between lawyers and their clients.

The request was made during a claim before the investigatory powers tribunal (IPT) brought by the Libyan dissident Abdel Hakim Belhaj and his family who were abducted in a UK-US rendition operation and returned to Muammar Gaddafi’s regime in Tripoli. The IPT deals with complaints about the conduct of the intelligence services.

Belhaj is suing the government over his treatment. Following revelations by the US National Security Agency whistleblower Edward Snowden about widespread online and phone surveillance by GCHQ and other agencies, Belhaj launched a claim in the IPT alleging that his legally protected exchanges with his lawyers had been intercepted – possibly giving the government an unfair advantage in the compensation case.

Belhaj is supported by Amnesty International, Reprieve and other human rights groups.

Lawyers for MI5, MI6 and GCHQ have already admitted that the policies and procedures they had in place to deal with legally privileged material were unlawful.

No “Chinese walls” were in place to prevent those involved in litigation seeing sensitive intelligence material. Conversations between lawyers and their clients have a protected status under English law.

Ben Jaffey, counsel for Belhaj and his family, told the tribunal: “There has been a failure of legal oversight that has allowed this to happen.

“We know these policies have had a real-world effect. In at least one case there has been tainting and there’s a risk that it could have given them an unfair advantage.”

Jaffey said the government was asking the tribunal to keep secret whether Belhaj had been the victim of “serious interference with his lawyers” and how that might have occurred.

“The proposal of [the government] is to deal with this case behind secret curtains. The public exposure of unlawfulness is very painful for the agencies. It may make it more difficult for them to do their job but such is the rule of law.”

Hugh Tomlinson QC, for Amnesty, said: “If the tribunal says nothing or says it may have happened, the public will be left thinking: ‘What has happened? Is this a can of worms? Is this an iceberg under the water?’

“There’s nothing more likely to undermine confidence in the security services than the impression that there’s dirty dealing behind the curtains and nothing has been revealed.”

The IPT, which conducts many of its hearings in secret, is empowered to consider claims on a hypothetical basis.

James Eadie QC, for the intelligence agencies, told the tribunal that making a public determination at the end of the case could endanger public safety.

Confirming to any claimant that they were being monitored would undermine the well-established government’s principle of “neither confirm nor deny” (NCND), he said.

In other cases, Eadie suggested, it might involve someone contemplating bombing the London Underground. “It’s not good enough to say [to the intelligence services] you have brought it on yourself. It’s the public who will suffer.”

He told the tribunal: “Although in a case in which the agencies have acted unlawfully, the starting point is that a successful complaint should be entitled to a statement that that has occurred, if that statement or its logical consequences … would cause real damage to national security then different considerations will be in play.”

He added: “In circumstances where to depart from the NCND approach would cause damage to national security … the tribunal should adopt an approach which does not reveal the fact that interception has occurred.”