CHAPTER 5: LEGAL CONSTRAINTS
The law of the European Union
5.55.
The UK is a Member State of the EU, an international organisation governed by
treaties. Parliament has given primacy to EU law, as EU law itself demands. 75
Although the EU is not itself a signatory to the ECHR,76 it has its own system of rights
protection which, within the scope of the Treaties, constrains the legislative freedom
both of the Union and of its Member States.
5.56.
The legal acts of the EU77 may be annulled or declared invalid if they are inconsistent
with the EU Treaties, with the fundamental rights which constitute “general principles
of the Union’s law”78 or with the EU Charter, which has the same legal value as the
Treaties.79 Furthermore, unlike under the ECHR, both the CJEU and domestic courts
are obliged to “disapply” provisions of national law, including Acts of Parliament, that
conflict with EU legal norms. In contrast to the ECtHR’s political enforcement
mechanisms, Member States which fail to rectify an infringement determined by the
CJEU are liable to be heavily fined.80
Charter of Fundamental Rights
5.57.
Of particular relevance to the law on investigatory powers are Articles 7 and 8 of the
EU Charter, which are based on the ECHR and read as follows:
“Article 7: Respect for private and family life
Everyone has the right to respect for his or her private and family life, home
and communications.
Article 8: Protection of personal data.
1. Everyone has the right to the protection of personal data concerning him or
her.
2. Such data must be processed fairly for specified purposes and on the basis
of the consent of the person concerned or some other legitimate basis laid
down by law. Everyone has the right of access to data which has been
collected concerning him or her and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent
authority.”
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ECA 1972, ss2 and 3.
It is obliged to accede to the ECHR (TEU Article 6(2)); but that prospect is not imminent: Opinion of the
CJEU 2/13, 18 December 2014 EU:C:2014:2454.
Such legal acts include regulations (which are binding in their entirety and directly applicable) and
directives (which need to be implemented in national law, but are binding as to the result to be achieved):
TEU, Articles 288 and 289.
TEU, Article 6(3).
TEU, Article 6(1).
Treaty on the Functioning of the European Union, Article 260.
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