EU’s highest court rules against government in Law Society-backed Snoopers’ Charter challenge

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European law in action


The European Court of Justice (ECJ) has ruled against the UK government in a Law Society-backed case challenging the controversial Snoopers’ Charter.

At the centre of this case is the Investigatory Powers Act 2016 — a piece of legislation which has proved a real sticking point for lawyers. The contentious anti-terrorism measure — which gives security and intelligence agencies extensive powers to access communications data — found itself in the statute books earlier this year, despite deep-rooted concerns about its draconianism and its potential impact on lawyers’ professional privilege.

The case — which was interestingly initially brought by Brexit secretary David Davis MP when he was just a backbencher — claimed the Snoopers’ Charter breaches citizens’ fundamental right to privacy. Heard by 15 ECJ judges amid attacks in Paris, Brussels and Nice, lawyers for the government argued that intercepting communications data is at the heart of the fight against terrorism.

As early as July 2016, it became pretty clear the claim — which was heard jointly in Luxembourg with a Swedish case — stood a chance of success. Then, Advocate General Henrik Saugmandsgaard Øe said data retention laws like this one could be compatible with European law, “but subject to satisfying strict requirements”. Because communications data is routinely used by the authorities for low-level crimes, these strict requirements are likely not met.

Given that Advocate General’s opinions are often followed by the ECJ, today’s ruling against the government is perhaps not a surprise, but is still a political embarrassment for Theresa May.

Looking more closely at the ECJ’s judgment, it this morning ruled that the “general and indiscriminate retention of data” is illegal. It continued:

The fact that the data is retained without the users of electronic communications services being informed of the fact is likely to cause the persons concerned to feel that their private lives are the subject of constant surveillance. Consequently, only the objective of fighting serious crime is capable of justifying such interference.

The national legislation at hand:

[E]xceeds the limits of what is strictly necessary and cannot be considered to be justified within a democratic society.

Of course, when — or rather if — the UK leaves the EU the government will no longer be bound by this ECJ ruling. But until this happens, it looks like the Snoopers’ Charter is in trouble.