Judgment Approved by the court for handing down.
SSHD v Watson & Others
their ordinary business requirements), which is retained by the
State (the SIAs) alone;
(4)
d.
the national court has found (subject to certain reserved issues)
that the safeguards surrounding the use of BCD by the SIAs are
consistent with the requirements of the ECHR; and
e.
the national court has found that the imposition of the
requirements specified in §§1l9-125 of the judgment of the
Grand Chamber in joined cases C-203/15 and C-698/15 Tele2
Sverige AB v Post-och telestyrelsen and Secretary of State for
the
Home
Department
v
Watson
and
Others
(ECLI:EU:C:2016:970) ('the Watson Requirements'), if
applicable, would frustrate the measures taken to safeguard
national security by the SIAs, and thereby put the national
security of the United Kingdom at risk;
1.
Having regard to Article 4 TEU and Article 1(3) of Directive
2002/58/EC on privacy and electronic communications (the "ePrivacy Directive"), does a requirement in a direction by a
Secretary of State to a provider of an electronic
communications network that it must provide bulk
communications data to the Security and Intelligence Agencies
('SIAs') of a Member State fall within the scope of Union law
and of the e-Privacy Directive?
2.
If the answer to Question (1) is 'yes', do any of the Watson
Requirements, or any other requirements in addition to those
imposed by the ECHR, apply to such a direction by a Secretary
of State? And, if so, how and to what extent do those
requirements apply, taking into account the essential necessity
of the SIAs to use bulk acquisition and automated processing
techniques to protect national security and the extent to which
such capabilities, if otherwise compliant with the ECHR, may
be critically impeded by the imposition of such requirements?”
On 30 November 2017 the Secretary of State published a consultation document and
proposed amendments to the Investigatory Powers Act 2016 which are intended to
address the judgment of the CJEU in the present proceedings. The consultation and
proposed amendments deal, inter alia, with the restriction, in the context of fighting
crime, to “serious crime”, the need for prior review by a court or an independent
administrative authority for access to retained data, ex-post facto notification and the
issue of retention of retained communications data within the EU.
7.
It is now for this court to seek to apply the decision of the CJEU to the challenge brought
against DRIPA in the national proceedings. As Mr Jaffey QC, on behalf of the First
Respondent, pointed out in the course of his oral submissions, the fact that DRIPA has now
been repealed does not make this a pointless exercise. Nevertheless, I regret to say that the
task now facing this court is far from easy in view of the fact that the preliminary ruling from
the CJEU is lacking in clarity. This is apparent from the disputes between the parties before
us as to its effect and from the fact that it has already given rise to a further reference by the
IPT.
8.
We have heard competing submissions as to whether, in these circumstances, it is appropriate
for this court to grant declaratory relief and, if so, what form such relief should take. We note