European Union court rules #SnoopersCharter illegal

The European Court of Justice (ECJ) today (21 December) ruled that the data-retention regimes for electronic communications in the UK are incompatible with EU law. The legal challenge against the Data Retention and Investigatory Powers Act 2014 (colloquially known as the 'Snooper's Charter') was brought by the deputy leader of the Labour Party Tom Watson MP and David Davis MP – now minister for Brexit, writes Catherine Feore.

Some may be surprised to see that David Davis, then a backbench MP, brought a case against his own government. It is also entertaining to know that the applicant in the case was the then Secretary of State for the Home Department, Theresa May, now Prime Minister.

David Davis regretted having to turn to the courts to defend British civil liberties, but regarded the case as “nonetheless a vindication of our constitutional checks and balances”.

Davis recognized at the time that the case could end up in the European Union’s Court of Justice (ECJ) where he was confident that they would take a similar view to earlier decisions (Digital Rights Ireland), ruling that data retention had to be both necessary and proportionate. The Chief Brexiteer has been vindicated by the European courts and in turn has shown that the UK has sometimes needed Europe to defend British civil liberties.

Prime Minister May, who had many run-ins with the European Court of Human Rights in Strasbourg, when she was British Home Secretary has been clear that she does not want the European Court of Justice to have jurisdiction over the UK.

The ECJ ruling states that "general and indiscriminate" retention of data is illegal, but does allow member states to retain data where strictly necessary for the purposes of fighting serious crime. Such data retention must be targeted and of a fixed duration. Access by national authorities to the data must also be subject to approval by an independent body.

In the meantime modifications will have to be made to the law, but it is interesting to bear in mind that the civil liberties Davis defended might be weakened by the UK’s exit from the EU in 2019 he so ardently campaigned for.

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