Outcome of hearing at European court of justice likely to influence final shape of government’s investigatory powers bill

The legality of Britain’s surveillance laws will come under the intense scrutiny of 15 European judges on Tuesday in a politically sensitive test case that could limit powers to gather online data.

The outcome of the hearing at the European court of justice (ECJ) in Luxembourg is likely to influence the final shape of the government’s investigatory powers bill and will test judicial relationships within the EU.

Around a dozen EU states including the UK have intervened in the challenge against the government’s Data Retention and Investigatory Powers Act 2014 (Dripa) that was originally brought by two MPs, the Conservative David Davis and Labour’s deputy leader, Tom Watson. The British case is being heard in conjunction with a Swedish case based on similar principles.

ECJ rulings are binding on British courts and its decision could have a decisive impact on the powers of GCHQ, the Cheltenham-based monitoring agency. The case may have further significance as it is being heard in the run-up to the UK’s EU referendum on 23 June.

The high court in London has already ruled that the powers in Dripa are inconsistent with European Union law, and as a result those powers are due to expire at the end of this year. The court of appeal is asking the ECJ to clarify the impact of an earlier ruling, known as Digital Rights Ireland, which limits the collection of data.

Davis, an arch-Eurosceptic, therefore finds himself in the curious position of asking EU judges to overturn Westminster legislation. He is expected to find time to attend the ECJ hearing on Tuesday.

The court’s final decision is expected to be delivered after the referendum but it is possible that the Danish advocate-general in the case could deliver his preliminary opinion before 23 June.

The case is likely to set clearer guidance on the legality of bulk interception of emails and online data by intelligence agencies.

A Home Office spokesperson said: “We are clear that the UK regime for communications data retention and acquisition contains very stringent safeguards to protect privacy and data. We hope that the ECJ will recognise that any omissions in the original EU directive are unrelated to the UK regime.”



Once the ECJ has given its opinion, the court of appeal in London will then have to apply that decision to UK surveillance legislation. Davis and Watson are being represented by lawyers for the civil rights group Liberty.



Silkie Carlo, policy officer for Liberty, said: “The ECJ’s findings could have profound ramifications for the investigatory powers bill. If judges find Dripa’s scheme of bulk retention and self-authorised access breaches human rights law, huge swaths of this fatally flawed bill will be called into question.

“The intrusive bulk powers challenged in this case pale in comparison to those now sought by the government – which include bulk hacking, the acquisition of vast databases containing sensitive information on millions of innocent people and powers to force communications companies to keep our entire web browsing histories.”

James Welch, Liberty’s legal director, said: “Liberty strongly supports the use of surveillance in fighting crime, but only if it’s targeted. The government’s approach of sweeping up and storing everybody’s data with no effective safeguards is excessive.

“This case could stop the fatally flawed investigatory powers bill in its tracks and mark a sea change in the fight for an effective, targeted system of surveillance that keeps us safe and protects our rights.”

Dripa allows the home secretary to force communications companies to preserve communications data for 12 months, catching the data records of everybody in the UK including confidential or privileged correspondence of MPs, journalists, lawyers and doctors. It is subject to safeguards whose effects are in dispute.

Both Privacy International and Open Rights Group are also intervening in the case. Camilla Graham Wood, legal officer at Privacy International, said: “The UK, in enacting legislation that is almost identical to the European data retention directive which the [ECJ] ruled unlawful, is mandating data retention on a widespread, indiscriminate and untargeted basis.

“Such a broad and wholesale retention of communications data is in violation of European law. The effect of Dripa is to use bulk data retention to create a dossier on every person in the UK. It includes every internet and mobile phone transaction you undertake, every location will be filed, every meeting noted, every website indexed and every call marked.

“Blanket retention of communications data, without suspicion, creates a honeypot of information for criminals and hackers, and this case will have implications for personal privacy and the security of individual personal data.”

Open Rights Group’s legal director, Myles Jackman, said: “The court found that you shouldn’t collect people’s data unless there is a specific reason and that there should be strict controls for allowing access to this data. With both Dripa and the IP bill, the British government has ignored this call to respect our human rights.

“We look forward to the [ECJ]’s clarification of their ruling and hope that it condemns once and for all the blanket collection of our personal data.”