The European Court of Justice (ECJ) will today hear a challenge to UK security legislation that may throw the UK's relationship with Europe and its sovereign security services into a radical new light.
At 9am today, an emergency hearing was drawn to clarify whether European law allows the bulk collection of personal data as spelled out in pieces of UK legislation such as the Investigatory Powers Bill (IP bill), currently making its way through Parliament.
European judges will start the process of clarifying whether self-authorised retention of communications data by security services breaches the fundamental European right to privacy.
The hearing was called in specific regard to a challenge over the 2014 Data Retention and Investigatory Powers Act (DRIPA), which allows for the use of bulk communications data.
The act was roundly criticised by a salad of rights groups for being speeded through parliament, not to mention the plain and controversial fact of bulk collection.
A legal challenge to DRIPA was promptly brought in front of the High Court by Labour MP Tom Watson, and Conservative MP David Davis.
Davis and Watson cited the fact that DRIPA conflicted with both the Human Rights Act 1998 and the European Convention on Human Rights (ECHR), which supersedes UK sovereign law.
In July last year, the High Court found that sections 1 and 2 of DRIPA were unlawful. The judgement handed down by Lord Justice Bean and Mr Justice Collins laid out the fact that DRIPA did not lay out clear rules for access to communications data. Moreover, access to that data was not subject to oversight to ensure that it was not abused.
With that, DRIPA was deemed unlawful and thrown upwards to the European Court of Justice, the decisions of which hold ultimate authority in Europe.
The decision of the ECJ will have a radical influence on the upcoming Investigatory Powers Bill, which largely replaces the provisions of DRIPA. If that is the case, then the validity of remaining within the EU may be called into question.
After a series of terrorist attacks and an upcoming referendum on the UK's membership of the EU, many of the luminaries of national security have called for a withdrawal of membership from the EU, claiming that the UK is safer out than in.
Richard Dearlove, an ex-MI6 chief, famously wrote in Prospect Magazine that Brexit would bring two key security benefits: first, the end of the ECHR's primacy over UK law - “remember the difficulty of extraditing Abu Hamza of the Finsbury park mosque", Dearlove reminded readers. Secondly, Brexit would allow greater control over immigration into Europe.
The avoidance of European litigation over UK security, one imagines, would have to add a third item to that list.
Liberty, a human rights group, is litigating the case at the ECJ along with David Davis and Tom Watson and believes that it will lead to the defeat of legislation like the IP bill or DRIPA.
James Welch, Liberty's legal director, commented, “Liberty strongly supports the use of surveillance in fighting crime, but only if it's targeted. The Government's approach of sweeping up and storing everybody's data with no effective safeguards is excessive.”
He said, “This case could stop the fatally flawed Investigatory Powers Bill in its tracks and mark a sea change in the fight for an effective, targeted system of surveillance that keeps us safe and protects our rights.”
But a judgement against the rights of sovereign national security will challenge not only UK legislation but that of other European countries too, many of which have their own bulk collection apparatuses already in place.
