McE, Re (Northern Ireland)

The House considered the interaction between the Regulation of Investigatory Powers Act 2000 (in particular section 27 and the Part II authorisation regime) and (i) the common law right of legal professional privilege and (ii) statutory rights of detained persons to consult a solicitor privately (for example section 58 PACE and article 59 PACE (NI) / paragraph 7 of Schedule 8 to the Terrorism Act 2000).

The majority held that RIPA, read with its Code of Practice, can lawfully authorise covert surveillance of communications that would otherwise attract legal professional privilege: section 27(1)'s declaration that conduct authorised under Part II "shall be lawful for all purposes" was properly read to cover privilege and to be intended by Parliament. The majority also held that consultations carried out under statutory private-consultation rights may be subject to properly authorised intrusive surveillance, provided the authorisation regime and safeguards meet Convention requirements of necessity, proportionality and legal certainty.

The Court also endorsed the Divisional Court's conclusion that, as at the time of the applications, the directed-surveillance regime and Code did not provide adequate safeguards to justify monitoring of detained persons' private consultations; accordingly the Divisional Court's finding that the existing authorisation regime was inadequate was left undisturbed. The Lords emphasised the need for clearly defined statutory or code safeguards (including limitations on authorisation and the permitted use of material obtained) if privilege-protected communications are to be monitored.

Background and facts:

• Several appellants, detained in Northern Ireland, sought assurances that consultations with their solicitors (and in one case with an independent psychiatrist) would not be subject to covert monitoring after press coverage of a high-profile matter involving surveillance of solicitor-client consultations. The police and relevant authorities declined to confirm or deny whether monitoring would take place.
• The applicants applied for judicial review in the Divisional Court (Northern Ireland) which held that monitoring consultations in police stations or prisons could not lawfully be authorised under the Home Office Code of Practice in its then present form and granted declarations in the applicants' favour. Questions of law of general public importance were certified and leave to appeal to the House of Lords was given.

Nature of the claim / relief sought:

• The applicants sought declarations that covert directed surveillance of lawyer–client consultations and doctor–patient consultations in custody would be unlawful and that the refusal to give assurances that no such monitoring would occur violated their rights.

Issues framed by the court:

1. Whether RIPA and its authorisation scheme affected the common law right of legal professional privilege.
2. Whether RIPA qualified or overrode statutory rights of detained persons to consult a solicitor privately (section 58 PACE et al.).
3. Whether the Code and authorisation regime met the Article 8 requirements of the European Convention on Human Rights in respect of such surveillance.

Court's reasoning and disposition:

• The majority (Lords Hope, Carswell, Hale and Neuberger) read section 27(1) of RIPA in its statutory and legislative context (including prior interception and surveillance legislation and Strasbourg jurisprudence) and concluded that Parliament intended that surveillance lawfully authorised under Part II could be "lawful for all purposes", potentially including communications covered by legal professional privilege. They accepted that neither legal professional privilege nor statutory private-consultation rights are absolute and that properly authorised surveillance may be permissible where necessary and proportionate and subject to adequate safeguards.
• However, the majority also accepted the Divisional Court's subsidiary conclusion that the directed-surveillance regime and the safeguards in the Code, as then constituted, were insufficient to justify monitoring of detained persons' private consultations; the Secretary of State had not appealed that factual/legal conclusion and had not yet taken the steps said to be necessary (for example reclassification to intrusive surveillance and additional safeguards). The House therefore dismissed the appeals.
• Lord Phillips gave a separate opinion, dissenting on the question whether RIPA qualified statutory rights to consult a solicitor privately: he would have held that RIPA and its Code could regulate the interaction of surveillance with LPP but did not impliedly authorise covert surveillance of statutory private consultations absent express parliamentary provision. His opinion stressed the principle of legality and the maxim generalia specialibus non derogant. The difference between the majority and Lord Phillips concerned statutory construction and the proper application of constitutional presumptions, but all members of the Appellate Committee agreed that the existing Code and directed-surveillance regime were inadequate to justify monitoring in custody.

Wider comment:

• The Lords emphasised the importance of clear statutory and administrative safeguards governing authorisation, the level of authorising officer, review and the permitted use or retention of material which may be subject to legal professional privilege.

Appeal dismissed. The majority held that RIPA (section 27(1) and the Part II authorisation scheme), read in its legislative and Convention context, can authorise covert surveillance that discloses communications covered by legal professional privilege and may, with appropriate safeguards, extend to statutory private consultations in custody; however, the Divisional Court correctly held that the directed-surveillance authorisation regime and Code in their then form did not provide adequate safeguards and so could not lawfully justify monitoring of detained persons' private consultations. A strong emphasis was placed on the need for clear safeguards concerning authorisation, classification (directed v intrusive), and use of privileged material. Lord Phillips dissented on the construction point concerning statutory private-consultation rights, applying the principle of legality and generalia specialibus non derogant.

Divisional Court (Northern Ireland) [2007] NIQB 101 (declarations granted; several questions of law certified) -> Appeal to House of Lords ([2009] UKHL 15). No appeal was taken by the Secretary of State against the Divisional Court's finding that the Code/regime was inadequate.