Civil Liberties: The EU saves the day (almost)…

The Government's Snoopers' Charter's on the ropes after ECJ rules bulk data collection illegal, says David Spencer.

The Snoopers' Charter has upset a lot of people in recent weeks, with widespread media criticism and a petition to repeal it securing well in excess of the 100,000 signatories needed to force the Government to consider it for debate.

Sadly, all of these objections have been a case of too little, too late. As the Government's response to the Petition made clear, the Investigatory Powers Bill, as it was, received several debates in both Parliamentary chambers before finally being passed on Halloween.

Amidst the hysteria around Brexit, a lot of other important Government work has been completely overlooked by both the media and the British people, and the Snoopers' Charter is perhaps the most serious of these. Given the highly intrusive provisions in the Act, it is likely to be a matter of lasting regret to the British people that it was not scrutinised properly at the time.

Or will it? With the law approved and now signed off by the Queen, it came come into effect in the UK on 1 January. But a recent ruling (from the EU of all places) has the potential to have pulled the rug out from under the Government's feet.

European Court of Justice ruling

It all stems from a court case originally brought by the unlikely alliance of then backbench Conservative MP David Davis and the deputy leader of the Labour Party, Tom Watson.

Supported by various campaign groups including Liberty, the Law Society, the Open Rights Group and Privacy International, they asked the UK High Court to rule on the legality of the bulk data collection provisions included in the Data Retention and Investigatory Powers Act 2014.

Their case was that these provisions were unlawful and the High Court ruled in their favour. Inevitably, the Government appealed and the Appeal Court then referred the case to the European Court of Justice (ECJ).

Needless to say, the case has been dragging along for a long time now. So long in fact that David Davis MP has, in the meantime, joined the Government as Secretary of State for Exiting the European Union, and so removed his name from the case.

It has continued without him, however, and on 21 December the ECJ handed down its ruling. And it couldn't have been clearer.

The ECJ judges concluded that the "general and indiscriminate retention" of electronic communications data was illegal under EU law. In explaining their ruling, they stated, as privacy advocates have argued for many years, that it is possible to draw "very precise conclusions" from such data about the people it relates to.

And there was more. The judges went on to state that the collection of electronic communications data should require the authorisation of a court in each individual case and that it should only be collected for the purpose of "fighting serious crime".

In a damning conclusion, they stated that the indiscriminate collection of data "cannot be considered to be justified within a democratic society."

Elation

Among those campaigners who have been trying for the past year to draw attention to the intrusive nature of the Investigatory Powers Bill, there was elation.

Martha Spurrier of Liberty said "Today's judgment upholds the rights of ordinary British people not to have their personal lives spied on without good reason or an independent warrant. The government must now make urgent changes to the Investigatory Powers Act to comply with this."

Meanwhile, Jim Killock of the Open Rights Group concurred saying that "The government must act quickly to rewrite the Investigatory Powers Act or be prepared to go to court again."

Timely Ruling

Coming as it did, just a couple of weeks before the Investigatory Powers Act comes into force, this ruling couldn't be more timely. Because although it relates to the Data Retention and Investigatory Powers Act 2014 (a piece of legislation which the new Snoopers' Charter supersedes) it has destroyed one of the core provisions of the new law.

The Investigatory Powers Bill enshrines in British law that the bulk collection of the communications data of everyone in the UK is now permitted, but the ECJ says such data collection is illegal.

So, what are the implications of the for the Investigatory Powers Act in 2017? It should first be noted that the ruling does not mean the new law will not come into force on 1 January as planned. The ECJ ruling was not explicitly about this new legislation and so there is plenty of scope for the Government to play for time.

The official Government response indicated that this was precisely what they would do. The Home Office said in a statement that they were "disappointed" at the ruling, but insisted that the Government would "be putting forward robust arguments to the court of appeal about the strength of our existing regime for communications data retention and access."

As the Open Rights Group has indicated, they can expect swift legal challenges to the new laws off the back of this ruling, and as things stand, these are likely to succeed. But the big unknown factor is the timeframe.

Such legal proceedings, with appeals thrown in, can take years, and years offers the Government a potential loophole: Brexit.

Once Britain exits the EU, it seems likely that ruling of the ECJ will no longer apply in the UK. The timeframe for Brexit is currently expected to be two years from this coming March and it is quite feasible that any legal cases against the Investigatory Powers Bill could take longer than that.

So, in a final irony, it seems likely that one of the main deciding factors, in this case, will be a policy which currently sits on the desk of one of the men who brought the case in the first place; Secretary of State for Exiting the European Union, Rt Hon David Davis MP.

Doesn't politics have a wonderful way of throwing up these existential dilemmas!