The Investigatory Powers Act 2016, commonly referred to as the ‘Snooper’s Charter’, recently became the main source of the UK’s surveillance powers after being granted Royal Assent on the 29th November 2016. The act conferred extensive powers of surveillance to the state and has been subject to both praise and criticism by members of the public. However, a ruling by the European Court of Justice (ECJ) on the 21st December 2016 has put the future of the Snooper’s Charter in doubt, less than a month after the Act was given Royal Assent.
The ruling follows a challenge against the UK’s powers of surveillance, which was originally brought by David Davies, who withdrew from the case after being appointed as Brexit Minister in July 2016, and Tom Watson, the deputy leader of the Labour Party. The ECJ held 1. that the ‘general and indiscriminate retention’ of data is illegal, 2. service providers can only be required to retain date if it is necessary to combat serious crime and 3. notice should be given to any persons affected by the investigation as soon as it is possible to do so without jeopardising the investigation. The ECJ’s rationale behind this decision was that these powers of surveillance ‘cannot be considered to be justified within a democratic society, as required by the directive, read in the light of the Charter’, referring to the Charter of European Human Rights.
What It Means
One purpose of the Investigatory Powers Act 2016 is to allow the state extensive powers to retain information, which is very likely to be of a ‘general and indiscriminate’ nature. It is, therefore, likely that the act will be, in part, illegal. Richard Cumbley, a partner at Linklaters law firm, states that, should the government choose the follow the decision of the ECJ, it will have to ‘apply more restrictive rules both to the types of data stored and the conditions under which it can be accessed’.
The decision is also likely to increase tensions, which were already at a high level, between the United Kingdom and the European Court of Justice, just a few months before Theresa May is due to activate the infamous Article 50. This is as a result, firstly, of the United Kingdom’s ability to combat serious crime, including and especially terrorism, potentially being affected by the ECJ’s ruling. This is likely to cause great frustration for the UK Government, who are already under pressure to deal with serious crime and are likely to feel that the great amount of time and effort which went into putting the act together has now gone to waste, as more time will now need to be spent to make changes and bring the act within the ECJ’s decision. However, it is currently unclear how the UK Government will react to the ECJ’s ruling and, should the UK Government choose to ignore the decision, it will be interesting how the ECJ will react.
Furthermore, Philip Johnstone, assistant editor and leader writer for the Daily Telegraph, argues that the ECJ’s ruling is an example of why the United Kingdom voted to leave the European Union on the 23rd June 2016. Mr Johnstone then adds that ‘now that we are leaving the EU here is one area of sovereignty that can be reasserted’. With democracy and sovereignty being two of the main arguments raised in support of Brexit, this decision is likely to receive criticism by many members of the UK public who have become frustrated at Acts of Parliament being overruled by the ECJ.
However, while members of the UK public who are opposed to the Investigatory Powers Act 2016 will be supportive of the ECJ’s decision, it will likely cause them a great deal of concern for the effect on their right to privacy following Brexit. It is clear that, once the UK’s exit from the European Union is finalised, the Investigatory Powers Act 2016 will no longer be illegal, which will mean that the protection of UK citizens’ right to privacy by the ECJ will no longer exist. It is also unclear whether the UK will seek further powers of surveillance following its exit from the EU. This is likely to be a greater cause of concern for UK citizens who are already concerned about their privacy.
The tension between the United Kingdom and the European Court of Justice is likely to become even greater, just a few months before the process for the UK’s exit from the European Union is due to begin. It could also become interesting if the UK Government chooses to ignore the ECJ’s ruling which, in the current circumstances, does not appear unlikely. Should this situation arise, it will be interesting to see how the ECJ will approach the issue. Finally, the decision will not appease members of the UK who voted to leave the European Union, who may feel that the decision is an affront to UK democracy and sovereignty.