Judgment Approved by the court for handing down.
70.
Davis & Ors v SSHD
v)
ensure destruction of the data when it is no longer required [67]; and
vi)
ensure the data is kept within the EU [68].
In oral argument Ms Rose modified her stance on point (i). She accepted that the
CJEU cannot have meant that CSPs can only lawfully be required to retain the
communications data of “suspects or persons whose data would contribute to the
prevention, detection or prosecution of serious criminal offences”. Such a restriction
would be wholly impracticable. Rather the Court must be understood to have held that
a general retention regime is unlawful unless it is accompanied by an access regime
which has sufficiently stringent safeguards to protect citizens’ rights set out in
Articles 7 and 8 of the Charter.
The defendant’s case on Digital Rights Ireland
71.
72.
Mr Eadie submitted that in Digital Rights Ireland the CJEU:
i)
did not explain why they thought it necessary to go beyond the jurisprudence
of the Strasbourg court on the protection of ECHR Article 8 rights, and must
therefore be understood not to have intended to do so;
ii)
were not dealing with a challenge to any Member State’s domestic legislation;
iii)
could not have been laying down requirements for access regimes to comply
with EU law, since in Ireland v Parliament the Court had held that access
regimes were not the province of EU law;
iv)
decided only that the Data Retention Directive taken as a whole was invalid,
not that each specific aspect of it commented on in the judgment was noncompliant with the Charter.
Mr Eadie and his team, in their supplementary submissions following the publication
of the Anderson report, cited Mr Anderson’s observations at 5.78 of his report on
Digital Rights Ireland. We set out paragraphs 5.77-5.79 in full:
“5.77. The Grand Chamber of the CJEU is the apex of the
judicial pyramid where EU law is concerned, and its
conclusions are strictly binding. The extent to which current
UK law gives effect to the requirements of Digital Rights
Ireland is disputed in the MPs’ case referred to at 5.75 above,
which will be heard in the High Court in June 2015. In the
circumstances, it would be inappropriate for me to venture an
opinion on its legal compatibility.
5.78. There are however powerful arguments against an overbroad interpretation of the Digital Rights Ireland judgment. In
particular:
(a) What the Grand Chamber said about prior independent
authorisation (5.68(f), above), seems to go further than the
case law of the ECtHR but without explaining why. See, for
example, Kennedy v UK (not cited by the Grand Chamber), in