Orders and proceedings in Belhadj

The government invoked national security concerns to resist disclosure of GCHQ’s, MI5’s and MI6’s policies. However, two hours before a scheduled hearing before the IPT on November 6, 2014, the government produced extracts of top secret guidelines showing that the UK intelligence services had been intercepting attorney-client communications.

On February 26, 2015, the IPT ordered that in accord with the Respondents’ concession, “there be a declaration that since January 2010 the regime for the interception/obtaining, analysis, use, disclosure and destruction of legally privileged material has contravened Article 8 ECHR and was accordingly unlawful.” By contrast, the March 12, 2015 Report of the UK Parliament’s Intelligence and Security Committee (the “ISC”) had only suggested that statutory guidelines replace or supplement the agencies’ internal guidelines on the treatment of privileged information. The Committee’s particular conclusions in regard to the Belhadj case were entirely redacted from the Report.

In addition to declaring that the regime governing the interception and use of privileged material was illegal, on February 26, 2015, the IPT also ordered that a closed hearing be held on “whether the Claimants’ legally privileged communications have in fact been intercepted/obtained, analysed, used, disclosed or retained (“relevant interception”).” A hearing open to the public was scheduled for March 12 to consider “on the hypothetical assumption (the true position being neither confirmed nor denied), that there have been relevant interception, what if any remedies should be granted to the Claimants.”

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