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Earlier this year, on 19th July, the Advocate General sitting on the European Union Court of Justice delivered his opinion on two cases that concerned the “Processing of personal data and the protection of privacy in the electronic communications sector” and “National legislation imposing a general obligation to retain data relating to electronic communications” in relation to the Charter of Fundamental Rights of the EU.
The second of these cases is a response to a legal challenge that was initially brought by Tom Watson (deputy leader of the Labour party) and David Davis (Conservative MP) which challenged the Government’s Data Retention and Investigatory Powers Act (DRIPA) 2014. Davis has since had to withdraw seeing that, as a minister, he is bound by the doctrine of collective responsibility. Watson continues and he has the support of organisations such as Liberty, Open Rights Group, Privacy International and The Law Society of England and Wales. This group had already won their case in the High Court but the Government appealed and the case was referred to the European Court of Justice (the highest court within the Court of Justice of the EU or CJEU.)
They sought to challenge DRIPA on the basis that it is contrary to the right to respect for a private life and the right to protection of personal data (articles 7 and 8 of the Charter of Fundamental Rights respectively). The Act allows the Home Secretary to force communications companies to keep communications data for 12 months. Liberty said of the Act: “This data is subject to an extremely lax access regime and can be obtained by hundreds of public bodies – many of which can authorise access themselves for an expansive range of reasons that have nothing to do with the investigation of serious crime.”
For many, this begs the question: what is the Charter of Fundamental Right of the EU? First of all, the Charter of Fundamental rights, although similar in appearance and content, is completely separate to the European Convention of Human Rights. The former is related to the European Union whereas the latter relates to the confusingly named, but entirely separate Council of Europe (think of it as a 47 member human rights organisation that is spread across the globe). Whereas the European Convention becomes part of our national law through the Human Rights Act 1999, the Charter gets its legitimacy through the supremacy of EU law. First introduced in 2000, the charter received full legal legitimacy in 2009 when the Treaty of Lisbon came into effect. It is also worth saying that despite the referendum result in favour of ‘Brexit’, as of today, the UK still remains a member state of the European Union (Article 50 of the Treaty of Lisbon has still yet to be activated) and it is unlikely that the government is going to stop adhering to its treaty obligations anytime soon. So for now the charter still applies.
Knowing this we can now look at the role of the Advocates General. There are eleven and their job is to give legal opinions on the cases assigned to them before they go to the court. These days, they are often used when the case concerns a complex legal issue. They ask questions and analyse the problem before them and give their opinion to the court. They are the sole authors of the opinions they give and they are often very detailed. However, the opinions given are only advisory by nature and do not bind the court or the parties. That being said, they are incredibly persuasive. A study found that the Court was 67% more likely to give a ruling if that was also the opinion of the Advocate General.
The Advocate General in this case, Henrik Saugmandsgaard Øe, suggested that the lack of safeguards in place meant that fundamental rights were indeed being breached. He also took issue with the blanket retention of data not retained for the purpose of preventing serious crime but instead “combating ordinary offences and the smooth conduct of proceedings”.
Should the CJEU judges follow the Advocate General’s opinion it would be a significant challenge to the proposed Investigatory Powers Bill that is currently being debated and which seeks to re-legislate for DRIPA. A Court decision that follows the opinion would likely lead to the government having to make serious amendments. Click here to read YRM editor Charles’ piece on the IP Bill or ‘Snoopers’ Charter’ as it is often called. As well as a general overview, Charles’ discusses one of the biggest criticisms of the Snoopers’ charter: that the proposed blanket retention of data is actually counterproductive as well as a breach of human rights.