Judgment Approved by the court for handing down.
Davis & Ors v SSHD
7.
The Secretary of State’s Detailed Grounds of Defence are thus correct in stating at
paragraph 38 that “the test of validity of the Act [DRIPA] and the 2014 Regulations is
whether they are compliant with Articles 7 and 8 of the EU Charter and/or Article 8
ECHR.” Data protection law has been within the scope of EU law for 20 years. The
Data Protection Act 1998 was enacted to implement the Data Protection Directive
(95/46/EC). The Explanations referred to in the Charter and printed in the Official
Journal of the EU make it clear that Article 8 of the Charter was based on Article 286
of the Treaty establishing the European Community (as amended) and on the Data
Retention Directive, among other sources. This is not a case in which any party has
argued that Article 8 of the Charter lies outside the proper scope of EU law, although
it will be seen that there is a dispute as to whether it covers access to data as well as
retention.
8.
Article 52(3) of the Charter provides:“In so far as this Charter contains rights which correspond to
rights guaranteed by the [ECHR], the meaning and scope of
those rights shall be the same as those laid down by the said
Convention. This provision shall not prevent Union law
providing more extensive protection.”
9.
The Secretary of State prays in aid the first sentence; the Claimants the second. As to
the second, Mr Eadie submitted that it does not entitle the CJEU (or this court) to hold
that the scope of anyone’s rights has been extended by virtue of the Charter, since it
was not intended to give fresh rights but to consolidate existing rights. This approach,
he submitted, is confirmed by Protocol 30 to the EU Treaties, negotiated by the UK
and Poland, which provides:“The Charter does not extend the ability of the Court of Justice,
or any court or tribunal of Poland or of the UK, to find that the
laws, regulations or administrative provisions or action of
Poland or of the UK are inconsistent with the fundamental
rights, freedoms and principles that it reaffirms.
In particular, and for the avoidance of doubt, nothing in Title
IV of the Charter creates justiciable rights applicable for Poland
or the UK except in so far as Poland or the UK has provided for
such rights in the national law.” [Title IV is not relevant in this
case]
10.
The precise scope of Protocol 30 is far from clear, since it only precludes the
extension by the CJEU or domestic courts of their existing powers to find that UK
laws are not in accordance with the Charter. It cannot be used to prevent the court
from defining the extent of rights contained in the Charter which set out provisions
within the material scope of EU law.
11.
The extent of the State’s powers to require the retention of communications data and
to gain access to such retained data are matters of legitimate political controversy both
in the UK and elsewhere. The Queen’s Speech opening the new Parliament on 27
May 2015 indicated that “new legislation will modernise the law on communications
data”. To take one example from abroad, on 2 June 2015 the US Congress passed one