Judgment Approved by the court for handing down.
Davis & Ors v SSHD
in step. However, Article 8 of the Charter clearly goes further, is more specific, and
has no counterpart in the ECHR. We therefore reject Mr Eadie’s argument that
European law requires us to interpret Digital Rights Ireland so as to accord with the
decisions of the ECtHR culminating in Kennedy.
81.
In any event there is an obvious difference between the cases. Mr Eadie is right to say
that interception of content is more intrusive than access to communications data. But
on the other hand a case about the interception of material relating to one individual,
pursuant to a case-specific warrant signed personally by a Secretary of State, does not
in our view assist much in interpreting the judgment of the CJEU in Digital Rights
Ireland relating to a general retention regime on a potentially massive scale.
82.
As Mr Anderson says in the passage of his report cited by Mr Eadie, the CJEU did not
explain why they went further than the case law of the ECtHR. But it was their
prerogative not to explain. EU law does not permit a national court to disregard a
ruling of the CJEU on the grounds that it is inadequately explained or inadequately
reasoned.
No challenge in Digital Rights Ireland to domestic legislation
83.
Mr Eadie is also right to say that the CJEU in Digital Rights Ireland only ruled on the
validity of the Directive. That was what the Irish and Austrian referring courts had
asked it to do: it was not asked to consider domestic legislation. But this is an
argument which elevates form over substance. The issue was not, as it had been in
Ireland v European Parliament and Council, a technical (though important) one about
the jurisdictional basis of the Directive. Rather it was whether the EU legislature had
“exceeded the limits imposed by compliance with the principle of proportionality in
the light of Articles 7, 8 and 52(1) of the Charter” (paragraph 69 of the judgment), and
the Court’s answer was that it had. It must follow, in our view, that an identically
worded domestic statute would have been found to have exceeded the same limits.
Similarly, at paragraph 66 the Court had held that the Directive “does not provide for
sufficient safeguards, as required by Article 8 of the Charter, to ensure effective
protection of the data retained against the risk of abuse and against any unlawful
access and use of that data”. Again, it must follow that in the view of the CJEU a
domestic statute in identical terms would have had the same failings.
Was the Court pronouncing on the access regime as well as the retention regime?
84.
Retention for the purpose of possible access is in itself an interference with rights
under Articles 7 and 8 of the Charter and Article 8 of the ECHR: see paragraph 29 of
the judgment in Digital Rights Ireland. In Liberty v UK (2009) 48 EHRR 1 the
ECtHR observed at paragraph 56:“Telephone, facsimiles and e-mail communications are covered
by the notions of ‘private life’ and ‘correspondence’ within the
meaning of [ECHR] Article 8. The court recalls its findings in
previous cases to the effect that the mere existence of
legislation which allows a system for the secret monitoring of
communications entails a threat of surveillance for all those to
whom the legislation may be applied. This necessarily strikes at
freedom of communication between users of the