5.
LEGAL CONSTRAINTS
5.1.
This Chapter explains the legal constraints governing UK legislation. The UK is
unusual in lacking a written constitution with which all legislation must conform. It has
however accepted a number of limitations on its freedom to legislate, including (so far
as is relevant here) protections for persons within its jurisdiction against undue
interference with their fundamental rights.
5.2.
The principal constraints on Parliament’s freedom to legislate in relation to
investigatory powers derive from European treaties:
(a)
The ECHR, a treaty not of the European Union [EU] but of the Council of
Europe. The ECHR confers rights on individuals within the jurisdiction of its 47
contracting states, enforceable by individual petition before the ECtHR in
Strasbourg. Most of the same rights are given effect before the courts of the
UK by the HRA 1998, where they must generally be pleaded before any
application is made to Strasbourg. Neither the UK courts nor the ECtHR has
the power to strike down primary legislation, but each may declare that it
infringes ECHR obligations.
(b)
The law of the EU, and in particular the EU Charter, which like the underlying
general principle of fundamental rights, constrains the law-making powers of
the EU and of its Member States when acting within the scope of EU law. 1
National security remains the sole responsibility of each Member State:2 but
subject to that, any UK legislation governing interception or communications
data is likely to have to comply with the EU Charter because it would constitute
a derogation from the EU directives in the field.3
For the sake of completeness, this Chapter also briefly considers the requirements
of the common law and of international law, though neither provides any significant
additional constraint on Parliament’s freedom to legislate in this sphere.
The common law
5.3.
1
2
3
The unwritten constitution of the UK is founded on the doctrine of parliamentary
sovereignty. The courts may declare the law in areas untouched by statute, and
interpret statutes once enacted. They can and do review the actions of the executive
(including Ministers and security and intelligence agencies) and hold that they were
invalid on various grounds via judicial review. But they have, as a rule, no power to
EU Charter, Article 51, as interpreted by the CJEU in Case C-617/10 Åkerberg Fransson, judgment of
26 February 2013, para 21 EU:C:2013:105, and (in the context of biometric data retention) Joined Cases
C-446 to C-449/12 Willems, judgment of 16 April 2015 EU:C:2015:238. I gave written and oral evidence
on the scope of the EU Charter to the House of Commons European Scrutiny Committee in the early
part of 2014 for its report on the application of the EU Charter in the UK, HC 979, March 2014:
https://terrorismlegislationreviewer.independent.gov.uk/eu-charter-of-fundamental-rights/.
Treaty on the European Union [TEU], Article 4(2). The scope of that provision (and hence of EU law)
has not been definitively resolved (though see Case C-300/11 ZZ v Secretary of State for the Home
Department, EU:C:2013:363, para 38), and is disputed in current litigation.
Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and
on the free movement of such data [Data Protection Directive] and Directive 2002/58/EC concerning
the processing of personal data and the protection of privacy in the electronic communications sector
[e-privacy Directive].
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