New Twist In Data Surveillance Legal Battle

Wed, 25 Nov 2015

A legal battle challenging Government legislation on data surveillance took another twist last week as the Court of Appeal referred the case back to the European Court of Justice with questions of its own.

The 36-page ruling from three senior judges was handed down on Friday, and rather than offering a judgment, the judges have asked for clarification on a CJEU ruling that they say is not clear.

The case revolves around government legislation on the collection and retention of personal, digital data. In the summer, two high court judges found that a section of the Data Retention and Investigatory Powers Act (Dripa) 2014 broke EU human rights rules. But Home Secretary Theresa May appealed the ruling, and it moved to the Court of Appeal.

The legal team who first brought the action have reiterated that this case is of considerable importance to the government which is currently concerned with security surveillance laws and that its ramifications will be of great constitutional importance.

Ramby de Mello, a barrister with No5 Chambers, was instructed by Bhatia Best Solicitors on behalf of campaigning claimants Peter Brice and Geoffrey Lewis. They were joined by Labour backbencher Tom Watson and Conservative former shadow home secretary David Davis in bringing a legal challenge to the Act.

Following Friday’s decision, Ramby de Mello said: “This case has an important impact on the powers of Members States to collect, store and access meta data of individuals and on the transfer of that data outside the EU.

“And the critical question now is does the ruling have an effect on national legislation?”

In referring the case, the Court of Appeal asks:

(1)    Did the CJEU in Digital Rights Ireland intend to lay down mandatory requirements of EU law with which the national legislation of Member States must comply?

(2)    Did the CJEU in Digital Rights Ireland intend to expand the effect of Articles 7 and/or 8, EU Charter beyond the effect of Article 8 ECHR as established in the jurisprudence of the ECtHR?

The judges said: “We consider that the answers to these questions of EU law are not clear and are necessary in order for us to give judgment in these proceedings. For those reasons we exercise our discretion in favour of making a reference to the CJEU.”

The very crux of the case is not the gathering and storing of people’s personal data per se, but that there were not sufficient safeguards in place to protect that information once it was gathered.

Mr de Mello added: “The kind of data we are talking about does not include actual content, but the when, who and for how long narrative of the information which is sufficient to tell a story, and when we first brought the case it was this intrusion into my clients’ privacy that was in question.

“Last year’s rushed legislation that handed government the power to insist on all communication companies retaining all data was, we argued, not compatible with European law. The subsequent judgments continue to show that we were right to bring this challenge.”

Award winning No5 Chambers is the UK’s premier set of barristers’ chambers with offices in Birmingham, London, Bristol and East Midlands and boasts more than 240 barristers and 29 silks.

Ramby de Mello is part of the Public Law group at No5 Chambers, please click here to view Ramby's profile.

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