Home Office faces EU court battle over Snooper’s Charter

News
29 Mar, 2016

ECJ emergency hearing could shoot down Investigatory Powers Bill

The European Court of Justice (ECJ) is set to scrutinise the UK government's plans for bulk data collection and retention at an emergency hearing on 12 April.

Its intervention was demanded by the Court of Appeal of England and Wales to help decide whether existing government spying measures are incompatible with the Charter of Fundamental Rights of the European Union.

Depending on the outcome of the hearing, the ECJ could scupper the government's plans to pass the Investigatory Powers Bill into law.

The Court of Appeal asked the ECJ to examine a case brought by MPs Tom Watson and David Davis and their co-claimants, Peter Brice and Geoffrey Lewis, against Home Secretary Theresa May's Data Retention and Investigatory Powers Act 2014 (DRIPA).

DRIPA is a piece of emergency legislation that came into force in July 2014 and expires on 31 December 2016 that governs the interception of electronic communications data.

Watson, Davis, and their fellow claimants argued that two sections of DRIPA - Section 1 (powers for retention of relevant communications data subject safeguards) and Section 2 (definitions of the terms used in section one) - were unlawful because they are incompatible with EU Charter articles outlining respect for private and family life and the protection of personal data.

In mid-2015, the High Court of England and Wales ruled in the claimants' favour. The Home Secretary appealed this decision, which would have seen a time limit for the enforcement of the unlawful sections run out on Thursday of this week.

The government hopes that the Investigatory Powers Bill, which would compel internet service providers to keep aspects of people's web browsing histories for 12 months, will replace DRIPA, but if the ECJ upholds the High Court's ruling, it could mean that the Investigatory Powers Bill is also incompatible with people's rights to privacy and data protection.

The bill is currently making its way through Parliament, under accusations that the government is trying to rush it into law.

It is now a three-way race to see which will happen first: Investigatory Powers receiving Royal Assent and becoming law, the ECJ issuing its ruling on the DRIPA case, or the EU referendum to decide whether or not the UK remains in the EU.

Read more about the Investigatory Powers Bill and its potential effect on businesses, the tech industry and privacy.