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Legal professional privilege must be safeguarded if data is retained

20 July 2016

The advocate general (AG) of the Court of Justice of the European Union (CJEU) yesterday gave his opinion on a court challenge by Labour's Tom Watson and Conservative David Davis (who has now withdrawn following his appointment to the cabinet), asserting that UK government data retention legislation is 'incompatible with EU law'.

The AG gave his opinion that while government retention of data may be compatible with EU law, it must be subject to strict measures that safeguard professional privilege - which keeps a client's communications with their legal adviser confidential and is a cornerstone of the justice system. The AG gave his opinion ahead of a Court of Justice ruling which is expected in the coming weeks, and which often follows the AG's opinion.

The Law Society intervened in the case, outlining to the court its concern about the effect of the legislation on legal professional privilege, which protects communication between solicitors and clients. 

'Legal professional privilege is the very heart of the solicitor-client relationship, ensuring that our clients can seek legal advice in confidence,' said Law Society president Robert Bourns.

'The Law Society welcomes the view of the advocate general, which reflects our own, that data should only be retained if there are strict measures in place to protect fundamental rights, including the right to professional privilege. We await the ruling of the Court of Justice with interest.

'If the trust implicit in legal professional privilege is undermined, whether through inattention or unjustified intrusion, a fundamental pillar of our justice system is weakened.'

Ends

About the Law Society

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Press office contact

Harriet Beaumont | harriet.beaumont@lawsociety.org.uk