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EU judges could limit UK surveillance powers before referendum

by Owen Bowcott (via EU judges in Luxembourg could limit key powers in UK surveillance laws just weeks before Britain votes on its EU membership. An emergency hearing on the bulk interception of communications data has been scheduled for 12 April at the European court of justice (ECJ), whose rulings are binding on UK courts. Its final decision could have a decisive impact on the powers of GCHQ, the Cheltenham-based monitoring agency, and could come shortly before Britons decide whether to remain in or leave the EU on 23 June. At issue is the effect of an influential earlier ECJ ruling, Digital Rights Ireland, which has already been used to overturn the government’s Data Retention and Investigatory Powers Act 2014 (Dripa) on the grounds that it is “inconsistent with European Union law”. The challenge has been brought by two MPs, the Conservative David Davis and Labour’s deputy leader, Tom Watson. Davis is expected to attend the Luxembourg hearing. The case will focus on the legality of how police and intelligence services access retained data, judicial authorisation of the process and bulk interception of information relating to emails, phone calls and text messages. The case raises such significant dilemmas in balancing conflicting interests of online privacy and national security that at least nine other EU countries and the European commission have also made submissions. Those issues are all crucial aspects of the investigatory powers bill, also known as the snooper’s charter, which has had its second reading in parliament and will lay down the rules for future government surveillance. Clarification of EU law was sought by the court of appeal. In granting the expedited hearing, the president of the ECJ, the Belgian judge Koen Lenaerts, said the dispute was over Home Office powers “to require public telecommunications operators to retain communications data for a maximum period of 12 months, retention of the content of the communications concerned being excluded”. The judge also noted: “It is clear that national legislation that permits the retention of all electronic communications data and subsequent access to that data is liable to cause serious interference with the fundamental rights laid down in articles 7 and 8 of the charter of fundamental rights of the European Union.” The role of the ECJ, the EU’s highest court, has become more controversial as the referendum campaign is about to get under way. Whereas judgments from the European court of human rights in Strasbourg have only to be taken into account, those from the ECJ effectively have the force of law in UK courts. For years ECJ cases dealt almost exclusively with commercial matters, but the court’s reach has expanded recently to include privacy, prisoners’ rights and whether women can wear headscarves at work. In an attempt to limit the power of EU judges, the government – initially spurred on by Boris Johnson and Michael Gove – is preparing a sovereignty bill which is said to transform the UK’s supreme court into a constitutional court capable of resisting undesirable rulings from EU judges. The legal principle is largely untested. A case called Gauweiler, about European Central Bank monetary policy, which involves the German constitutional court may yet provide a legal check on EU judges. Asked whether a UK sovereignty bill would be launched during the referendum campaign, a spokesperson for the Cabinet Office, which is overseeing the review, said: “There will be details in due course.” There is a chance the ECJ judges hearing the case, one of whom is likely to be British, may not deliver their verdict before the referendum, although court documents acknowledge the need for an urgent reply. A number of organisations – including Privacy International, the Law Society and Open Rights Group – have also intervened in the ECJ case. Millie Graham Wood, from Privacy International, said: “[We believe] that existing EU law rules out data retention regimes of the kind contained in Dripa and reflected in the investigatory powers bill. “Blanket retention of communications data without suspicion violates the right to privacy, as well as putting the security of personal data at risk of attack by criminals and others.” Daniel Carey, a solicitor who will represent Privacy International at the Luxembourg hearing, said: “This will be an important hearing for everyone’s data protection rights. [Dripa] creates a privatised database of everyone’s communications activity, and the investigatory powers bill only extends these powers further. “The regime of judicial authorisation in that bill has no application to data retention orders and applies only to local authorities when accessing retained data. We are asking the [ECJ] to make clear that powers of data retention and access must be confined to what is necessary and proportionate, and that these are not platitudes but legal principles that prohibit the broad powers the government seeks.” 16 aprile 2016

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