Tribunal says EU judges should rule on legality of snooper’s charter

Investigatory powers tribunal says need for European court of justice clarification is ‘obvious’ in surveillance powers case.

European Union judges are to be asked to rule on the legality of Britain’s mass digital surveillance powers, the UK’s top national security court has said.

In a politically charged judgment on Friday, the investigatory powers tribunal (IPT) ruled that the European court of justice (ECJ) should decide whether the UK’s bulk collection of communications data, tracking personal use of the web, email, texts and calls, was legal.

The ruling said: “By the end of the hearing it was clear that both parties either agreed to or saw the necessity for a reference to the [ECJ’s] grand chamber, and the need for it is, we suggest, obvious from this judgment.”

The ruling is a major victory for the campaign group Privacy International, who brought the case in the wake of last December’s ruling by the ECJ that the “general and indiscriminate retention” of communications data by governments was illegal. That case was brought by Labour’s deputy leader, Tom Watson, and had initially been backed by the Brexit secretary, David Davis, when he was a backbench MP.

Friday’s IPT rulinggave some comfort to the British security services and ministers with the statement that the bulk collection of communications datawas “essential to the protection of the national security of the United Kingdom”. The UK judges said applying the Watson European court ruling “would effectively cripple the security and intelligence agencies’ bulk data capabilities”.

The British tribunal, presided by Sir Michael Burton, also refused to expedite the case to the EU court of justice. This means that it is likely to take several years to secure a final ruling, leaving the door open to claims from Brexiters that European judges will get to decide what anti-terror powers are held by the British security services.

The Privacy International challenge was defended by the government in the names of the foreign secretary, the home secretary, GCHQ, MI5 and MI6.

At the opening of the case, the vice-president of the IPT, Mr Justice Mitting, told the hearing: “This case raises a fundamental political question as to the competing powers of the nation state and the EU.”

The case is one of many legal challenges that followed the disclosures by Edward Snowden of the extent of the digital mass surveillance practised by Britain’s GCHQ and the US National Security Agency.

Lawyers for Privacy International told judges that the bulk collection of personal communications data was no less sensitive than the content of emails. They argued that British citizens were already subject to greater surveillance than any other citizens and that the constitutional right to personal privacy sets limits on state surveillance powers.

James Eadie, QC, acknowledged that the issue may have to be referred to the grand chamber of the ECJ in Luxembourg for clarification.

A senior MI5 officer gave evidence to the IPT that bulk personal data collection powers had “contributed significantly to the disruption of terrorist operations and the saving of lives”.

Judges were given a statement from MI5’s deputy director for data access and policy describing the importance of bulk communications data (BCD) to the the security services: “The acquisition of BCD enables MI5 to identify threats and investigate in ways that, without this capability, would be either impossible or considerably slower. In many case[s] communications data may be the only investigative lead that we have to work from,” he said.

“Further, without BCD, it would be necessary to carry out other and more intrusive inquiries; for example, many more individual requests for CD or use other more intrusive powers in order to narrow the scope of a search. The inability to use BCD would therefore involve greater intrusion into the privacy of individuals.

The IPT also heard evidence that in 2005, “on the basis of sensitive but fragmentary intelligence, it was possible for MI5, from an entire bulk personal dataset, to establish, by applying a number of filters and matches so as to reduce a pool of 27,000 candidates, one person who was identified as a suspected potential al-Qaida suicide bomber.’

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