EU court must rule on legality of UK's mass surveillance – tribunal

Court suggests recent EU ruling on bulk data retention could put national security at risk

Image composite Alex Yeung, NesaCera, NesaCera Shutterstock

The UK's Investigatory Powers Tribunal, which oversees the country's spy agencies, has said the European Court of Justice should rule on the legality of the government's mass-surveillance legislation.

The case was brought against MI5, MI6 and GCHQ by campaign group Privacy International as part of a continued bid to prevent the government from collecting and retaining bulk communications data (BCD).

In its judgment, handed down today, the court referred the case up to the ECJ.

It said that, by the end of the four-day hearing, "both parties either agreed to or saw the necessity for a reference to the Grand Chamber [ECJ], and the need for it is, we suggest, obvious from this judgment".

However, the court also indicated that it felt BCD was "of critical value" to the intelligence agencies, adding that witnesses from the spy agencies "speak persuasively of developing fragmentary intelligence, of enriching 'seed' information, of following patterns and anomalies, and of the need for the haystack in order to find the needle".

This hearing follows a previous ruling from the tribunal, issued in October 2016. That deemed the bulk collection of data carried out by GCHQ and MI5 between 1998 and 2015 illegal as it was in breach of Article 8 of the European Convention on Human Rights – but only as applied to the period up to 2015, before the agencies went public with the activities.

The latest hearing was to consider whether EU laws – such as the Charter of Fundamental Rights of the European Union and the Treaty of the European Union – applied.

It also had to consider the impact of a subsequent case brought by Labour MP Tom Watson, which delivered its judgement in December last year, saying access to bulk retained data should be restricted to preventing and detecting serious crime.

The tribunal considered whether the Watson judgement should apply to national security matters at length, and in its conclusion seemed to be persuaded of the government's assertions that if this were the case, it would – as the respondents said – "cripple" public protection.

"We are persuaded that if the Watson Requirements do apply to measures taken to safeguard national security, in particular the BCD regime, they would frustrate them and put the national security of the United Kingdom, and, it may be, other Member States, at risk," the judgement said.

The tribunal noted in the judgement that only one point in the Watson judgement specifically addressed national security – the bulk of the case being directed towards targeted access of data.

The UK court said: "It is to be hoped that, whether by reconsideration, or clarification of paragraph 119 of the Judgment," which referred to national security, "or otherwise, the Grand Chamber will take the opportunity to consider whether any further statement than that the safeguarding provisions of the ECHR should apply is required."

The judges also refused Privacy International's request that the case be expedited to the European court – which could mean it will be years before a final judgement is made. ®

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