Following the frank admission by the Dutch Minister of Security that a law firm, Prakken d’Oliveira, had been under surveillance for years by the Dutch secret service, a question was raised in the European Parliament last week concerning the apparent tolerance by the EU of secret surveillance of legal communications and the steps which would be taken to ensure that Member States respected lawyer-client confidentiality.

The Council of Bars and Law Societies of Europe, representing lawyers across Europe, had collated evidence indicating that lawyer-client communications have been monitored over the last few years by police or intelligence services in France, the United Kingdom, Ireland, the Czech Republic and Latvia. Expressing their deep concerns about this practice, MEPs asked for action to be taken by the EU including the conduct of investigations, application of sanctions and the adoption of legislation.

The response on behalf of the Council was simple: the collection and processing of personal data for the purpose of national security is not regulated currently by EU law - the Lisbon Treaty explicitly states that national security remains the sole responsibility of the Member States. This may be true, but does not deal with the MEPs’ concern.

Confidential communications between lawyer and client are protected in every member state in some form, whether called professional secrecy or legal professional privilege. This protection is recognised by both the European Court of Justice and the European Court of Human Rights. Further, within criminal proceedings, article 4 of the European directive 2013/48/EU on the right of access to a lawyer obliges member states to respect the confidentiality of communication between suspects or accused persons and their lawyer.  As the way in which personal data is collected and processed for the purpose of national security is determined by each Member State, the practices and guidelines which dictate when, who and how surveillance of legal communications is conducted will differ between states.

The conduct of surveillance is, by definition, unknown and therefore impossible to challenge. Therefore, an adequate system to monitor the exercise of this intrusive power is vital. Given the critical importance of lawyer-client confidentiality to the administration of justice, the question remains whether the EU should specifically protect this right to confidentiality. Whilst it is unlikely that Member States would agree to provide absolute protection to legal communications from surveillance, a common system of safeguards applicable across the EU may be the first step to allaying growing concerns.