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| Data retention powers referred to European court | Data retention powers referred to European court |
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| Key questions over the extent of the UK government’s powers to intercept and retain online and phone data have been referred to the European court of justice (ECJ) in Luxembourg. | |
| The court of appeal has declined to overturn an earlier legal victory over surveillance legislation by the Conservative MP David Davis and Labour’s deputy leader, Tom Watson, in which the high court declared the Data Rentention and Investigatory Powers Act 2014 (Dripa) “inconsistent with European Union law”. | The court of appeal has declined to overturn an earlier legal victory over surveillance legislation by the Conservative MP David Davis and Labour’s deputy leader, Tom Watson, in which the high court declared the Data Rentention and Investigatory Powers Act 2014 (Dripa) “inconsistent with European Union law”. |
| Related: High court rules data retention and surveillance legislation unlawful | Related: High court rules data retention and surveillance legislation unlawful |
| The decision to refer the short-lived Dripa to the ECJ, the highest court in the European Union for EU law, could have significant, longer-term consequences for the new surveillance law the government is preparing. | The decision to refer the short-lived Dripa to the ECJ, the highest court in the European Union for EU law, could have significant, longer-term consequences for the new surveillance law the government is preparing. |
| Three appeal court judges – lords justices Patten, Lloyd Jones and Vos – said the issue of data retention was of “general and wide-reaching importance” and it was inevitable it would be referred to the ECJ . | |
| The British judges did form a “provisional view” that the precedent case at the ECJ, known as Digital Rights Ireland, “does not lay down mandatory requirements of EU law with which national legislation must comply. That interim conclusion is at odds with the earlier ruling in favour of the MPs.” | The British judges did form a “provisional view” that the precedent case at the ECJ, known as Digital Rights Ireland, “does not lay down mandatory requirements of EU law with which national legislation must comply. That interim conclusion is at odds with the earlier ruling in favour of the MPs.” |
| However, the court of appeal judges noted that courts in six other EU states – Austria, Slovenia, Belgium, Romania, Holland and Slovakia – have declared national data retention laws to be invalid on the basis of the previous Digital Rights Ireland case. They asked the Luxembourg court to expedite the Dripa appeal. | However, the court of appeal judges noted that courts in six other EU states – Austria, Slovenia, Belgium, Romania, Holland and Slovakia – have declared national data retention laws to be invalid on the basis of the previous Digital Rights Ireland case. They asked the Luxembourg court to expedite the Dripa appeal. |
| Dripa requires internet and phone companies to keep their communications data for a year and regulates how police and intelligence agencies gain access to it. | Dripa requires internet and phone companies to keep their communications data for a year and regulates how police and intelligence agencies gain access to it. |
| The decision to strike down the law was, however, suspended until March next year, by which stage the government’s new investigatory powers bill is expected to be enacted. | The decision to strike down the law was, however, suspended until March next year, by which stage the government’s new investigatory powers bill is expected to be enacted. |
| Davis and Watson have argued that Dripa permits police and security services to spy on citizens without sufficient privacy safeguards. They maintain that the legislation is incompatible with article eight of the European convention on human rights (the right to respect for private and family life), and articles seven and eight of the EU charter of fundamental rights (respect for private and family life and protection of personal data). | Davis and Watson have argued that Dripa permits police and security services to spy on citizens without sufficient privacy safeguards. They maintain that the legislation is incompatible with article eight of the European convention on human rights (the right to respect for private and family life), and articles seven and eight of the EU charter of fundamental rights (respect for private and family life and protection of personal data). |
| Lawyers for the two MPs complained that use of communications data was not limited to cases involving serious crime, that individual notices of data retention were kept secret, and that no provision was made for those under obligation of professional confidentiality, in particular lawyers and journalists. Nor, they argued, were there adequate safeguards against communications data leaving the EU. | Lawyers for the two MPs complained that use of communications data was not limited to cases involving serious crime, that individual notices of data retention were kept secret, and that no provision was made for those under obligation of professional confidentiality, in particular lawyers and journalists. Nor, they argued, were there adequate safeguards against communications data leaving the EU. |
| Rulings by the ECJ in Luxembourg relate to EU regulations and are more binding on British courts than the decisions made by the European court of human rights in Strasbourg. | Rulings by the ECJ in Luxembourg relate to EU regulations and are more binding on British courts than the decisions made by the European court of human rights in Strasbourg. |