The Advocate General has delivered his Opinion in linked cases C-203/15 and C-698/15 concerning the legitimacy of mass data retention. C-698/15 is a reference to the CJEU by the Court of Appeal in two judicial reviews – one originally brought by two MPs David Davis and Tom Watson and the other by two individual claimants Peter Brice and Geoffrey Lewis. David Davis MP has withdrawn from the case following his recent appointment as a minister in connection with the Brexit negotiations.
The subject matter of the English judicial reviews concerned the legitimacy of provisions of the Data Retention and Investigatory Powers Act 2014 (DRIPA), which was enacted as emergency legislation following an earlier CJEU ruling known as Digital Rights. In the English litigation, the Divisional Court had held that Digital Rights bound it to hold that certain aspects of DRIPA breached EU law; the Court of Appeal expressed doubts about this and made the reference.
In his Opinion, the Advocate General comes to conclusions very similar to those of the Divisional Court. He expressly states that all the safeguards identified in paragraphs 60 to 68 of Digital Rights must be present if the regime is to be compliant with EU law. Important practical effects – if the Grand Chamber of the CJEU itself takes the same line – are that access to the mass database must be for the sole purpose of dealing with serious crime and that prior judicial authorisation must be sought before any access. This would have implications for the UK’s present investigatory powers bill before parliament; implications which will have to be worked through in the fraught political circumstances of Brexit.
Richard Drabble QC (leading Rambi de Mello and Azeem Suterwalla) appeared for Peter Brice and Geoffrey Lewis.