83.
We accordingly resolve Issue 9 in favour of the Respondent. The s.5 regime
prior to February 2015 was compliant with the Convention.
Issue 10 Legal and Professional Privilege
84.
Issue 10 is: Does the system relating to LPP communications derived from CNE
since February 2015 comply with the Convention? Mr Jaffey raised briefly at
one stage the question of journalistic sources, but that forms an entirely separate
topic, with which this judgment does not deal. The Respondents accepted in
Belhadj 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. This Issue 10
therefore relates only to the period since February 2015 and whether, in relation
to LPP, the E I Code has remedied the problem. Mr Jaffey raised only three
points by way of continuing criticism, and in the event all of them have become
moot so far as any continuing problem is concerned.
85.
The first related to GCHQ’s definition of legal and professional privilege, which
had previously appeared not to include litigation privilege. Mr Jaffey accepts
that this has now been made good by the adoption in the E I Code of a definition
of privilege analogous to that in the Police Act, which does not exclude
litigation privilege.
86.
The second criticism related to the fact that the Respondents have said that they
were establishing appropriate ‘Chinese walls’ which would satisfy Mr Jaffey’s
concerns but did not yet appear to have done so. According to Mr Martin’s
second statement at paragraph 18, the practice, now described in a document
headed “Summary of GCHQ Policy on Handling Material Derived from the
Interception of Communications of Individuals Engaged on Legal Proceedings
where HMG has an Interest” was still awaiting formal approval. Mr Eadie told
us on instructions that the policy had in fact been implemented while still in
draft in April 2015, but accepted that nevertheless it had not yet been approved,
albeit imminently was to be so. He also referred to paragraph 3.19 of the E I
Code, by which the detailed guidance in paragraphs 3.1-3.18, with which Mr
Jaffey takes no exception, “takes precedence over any contrary content of an
agency’s internal advice or guidance”. Nevertheless we have now been
supplied since the hearing with confirmation that this policy was approved, in
November 2015.
87.
The third problem was that of metadata, which could attract LPP by reference to
communications with lawyers, even without their content. There was no dispute
between Counsel that metadata might attract LPP. There was no specific
mention of metadata in the E I Code, although that of itself would not be a
problem. What is a problem is that there is an apparent express exclusion from
potentially LPP material of metadata in an internal GCHQ document called
“Summary of GCHQ LPP and Sensitive Communications Policy”. Because of
the lack of mention of metadata in the E I Code, this would not benefit from the
‘override’ of clause 3.19, and plainly there has been the risk of somebody
incorrectly relying upon such guidance. Mr Eadie told us that this guidance
would be corrected, and since the hearing a copy of such corrective policy has