Reference to CJEU on ‘DRIPA’ data retention regime and Digital Rights Ireland

20 Nov 2015 | by Claire Alderman

R v Secretary of State for the Home Department ex p David Davis MP, Tom Watson MP, Peter Brice and Geoffrey Lewis

Open Rights Group, Privacy International and the Law Society intervening

The Court of Appeal has today handed down judgment in an appeal concerned with the Home Secretary’s powers in relation to the retention of communications data and the validity of section 1 of the Data Retention and Investigatory Powers Act 2014 (“DRIPA”). It has decided to refer questions to the CJEU concerning the meaning of the CJEU’s judgment in Joined Cases C/293/12 and C/594/12 Digital Rights Ireland Ltd and Seitlinger and Others.

The Home Secretary appealed against the judgment and order of the Divisional Court ([2015] EWHC 2092 (Admin)), which found s1 DRIPA to be contrary to the CJEU’s judgment and disapplied DRIPA with effect from March next year. S1 DRIPA gives the Home Secretary the power to require public telecommunications operators to retain communications data for one or more specified purposes, including, but not limited to, the prevention of serious crime. The Divisional Court accepted the argument of the Claimants, including David Davis MP and Tom Watson MP, that s1 DRIPA was inconsistent with Articles 7 and 8 of the EU Charter because it did not set down clear rules governing access to the data and, in particular, did not make access dependent on prior judicial or independent review.

The Secretary of State appealed on the basis that the judgment below was based on a misunderstanding of the CJEU’s judgment in Digital Rights Ireland, delivered on 8 April 2014.

In its judgment the Court of Appeal has accepted, on a provisional basis, the Home Secretary’s argument that Digital Rights Ireland, which invalidated Directive 2006/24/EC (“the Data Retention Directive”), did not lay down mandatory requirements applicable to all Member States’ domestic data retention regimes, contrary to the Divisional Court’s interpretation. At the request of the Home Secretary, and given the difference in approach between different national courts, the Court of Appeal decided to refer questions as to the correct interpretation of Digital Rights Ireland to the CJEU, including on whether the CJEU in that judgment intended to expand the scope of Articles 7 and 8 of the EU Charter beyond the effect of Article 8 ECHR.

Daniel Beard QC and Gerry Facenna acted for the Secretary of State.

Azeem Suterwalla acted for the Respondents Brice and Lewis.

The judgment is available here.