Jean-Yves Gilg

Editor, Solicitors Journal

Mass retention of data only allowed in fight against serious crime, says AG

Mass retention of data only allowed in fight against serious crime, says AG


AG opinion is clear indicator that proposed IP Bill breaches human rights, says Liberty lawyer

Communications data may only be retained where it is strictly necessary and proportionate to the fight against serious crime, a legal opinion to the European Court of Justice (CJEU) has declared.

Advocate General (AG) Henrik Saugmandsgaard Øe delivered his preliminary opinion a year after the England and Wales High Court ruled the Data Retention and Investigatory Powers Act (DRIPA) was inconsistent with EU law.

The judicial challenge had been brought by Labour deputy leader Tom Watson and former Conservative shadow home secretary, now Brexit secretary, David Davis, over the powers given to the home secretary to retain communications data at their discretion. Davis withdrew from the case following his appointment to Theresa May's government.

Following the government's appeal on the High Court ruling, the Court of Appeal had sought the view of Europe's highest court which is now likely to follow the opinion.

AG Saugmandsgaard Øe said: 'The general obligation to retain data must be strictly necessary to the fight against serious crime' and 'must be proportionate', while respecting the right for private life and the protection of personal data.

Combating ordinary offences and the smooth conduct of proceedings, other than criminal proceedings, was not deemed capable of justifying data retention. The content of communications is not the subject of that retention obligation.

Watson, represented by Liberty, said the finding had showed 'the prime minister was wrong to pass legislation when she was home secretary that allows the state to access huge amounts of personal data without evidence of criminality or wrongdoing'.

'Labour has already secured important concessions, but I hope the government she leads will now revisit it, he continued. 'The opinion makes it clear that information including browsing history and phone data should not be made available to the security services and other state bodies without independent authorisation.

'The security services have an important job to do, but judicial oversight is vital if we are to maintain the right balance between civil liberties and state power.'

Jim Killock, executive director at Open Rights Group, said the ruling 'recognises that blanket data collection interferes with our privacy rights'.

'We must now see the repeal of national legislation that obliges telecoms companies to collect data about our personal phone calls, text messages, emails and internet usage,' he added. 'This collection is indiscriminate and reverses the presumption of innocent until proven guilty.'

The decision is a blow to the UK government as the draft Investigatory Powers (IP) Bill currently goes through parliament.

Liberty's legal director, James Welch, added: '[The] opinion is a clear message to our blinkered government - your proposed new law breaches our human rights.'

Lawyers and MPs have called for the new law to enshrine legal professional privilege (LPP) and protect client-lawyer communications.

It came as no surprise then that the Law Society, which intervened in the CJEU case by outlining its concern about the effect of the legislation on legal professional privilege, welcomed the AG's opinion.

'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.'