Lawyers welcome EU court ruling in defence of legal professional privilege

The Court of Justice of the European Union ruled that EU law precludes national legislation that prescribes general and indiscriminate retention of data except in the fight against serious crime.

The Law Society of England and Wales and Bar Council of England and Wales made submissions in the case of Secretary of State for the Home Department v Watson and others, to outline concern about the impact on legal privilege and other sensitive information which may be deliberately or inadvertently intercepted.

Legal bodies across the UK had previously united to lobby the government over provisions in the Investigatory Powers Bill which they said would threaten legal professional privilege.

Subsequent amendments to allay their concerns received a mixed response. The Law Society of England and Wales said the changes were a “significant improvement”, but “not as comprehensive as the legal community felt was appropriate”.

Tim Musson, convener of the Law Society of Scotland’s privacy law committee told Scottish Legal News: “This ruling on the UK’s Data Retention and Investigatory Powers Act echoes the UK’s High Court ruling in 2015 that it was illegal.

“The DRIPA legislation, which has since been scrapped, had been fast-tracked through the UK Parliament in a matter of days and we raised serious concerns at the time that it was not being subjected to the appropriate levels of parliamentary scrutiny and debate that good law demands.

“The European Court of Justice ruling highlights the importance of protecting client and lawyer communication. Confidential information between a lawyer and a client contributes to the rule of law, the proper functioning of the courts and is in the interests of justice. This information requires protection as it’s essential to ensure a client can speak freely with his or her lawyer and that the advice they receive will not be disclosed to the police, the security service or the media.

“The recently passed Investigatory Powers Act has similar issues with respect to legal professional privilege and other surveillance issues. It remains to be seen whether there will any legal challenge to this and whether it will be successful. We argued at the highest level, alongside the other law societies, for stronger protection for legal professional privilege and some concessions were made. We are waiting to see if the Codes of Practice will give further reassurances.”

Speaking after yesterday’s ruling, Robert Bourns, president of the Law Society of England and Wales, said: “Legal professional privilege is a fundamental part of the relationship that solicitors have with their clients, ensuring that our clients can seek legal advice in the confidence that it cannot be disclosed to a third party.

“Today’s ruling from the European Court strongly supports the need to protect sensitive information such as legally privileged material, which is private information belonging to the client, and to ensure it is accessed only when absolutely necessary, with robust and independent oversight.

“The Law Society has worked constructively with government to seek protection for legally privileged material in surveillance law and regulatory regimes. We look forward to continuing this positive engagement as the ministers take steps to implement this ruling.”