nothing to do with it. The Charter of Fun-
damental Rights, by contrast, is an EU
instrument, enforced mainly by the EU’s
European Court of Justice (in Luxembourg).
After testing the evidence in the Privacy
International case, the IPT found that only a
‘minuscule proportion’ of the data collected
was ever examined, that the intrusion was
minimal and that the only people whose
data was accessed were those believed to
pose a security threat.
Isn’t that the end of the matter? In any
case, issues of national security are sup-
posed to lie outside the remit of the Euro-
pean Court of Justice. Article 4 of the Treaty
on European Union states that ‘national
security remains the sole responsibility of
each member state’.
However, that is not how the European
Court of Justice (ECJ) has chosen to view it.In a series of recent, poorly reasoned deci-
sions involving the collection of BCD, the
ECJ has ignored Article 4 as well as pro-
visions in directives to similar effect. It has
also failed to refer to its own previous judg-
ments which recognised public security as
being outside its remit.
In the latest case, called Watson (as in
Tom Watson, deputy leader of the Labour
Party), the ECJ’s Grand Chamber ruled
that the indiscriminate collection of com-munications data was unlawful. It imposed
requirements about accessing data, in
order to safeguard privacy rights under the
Charter. According to the government, if
applied, these would ‘effectively cripple’
the agencies’ bulk data capabilities. The
IPT went further: ‘We are persuaded that if
the Watson requirements do apply to meas-
ures taken to safeguard national security, in
particular the BCD regime, they would frus-
trate them and put the national security of
the United Kingdom, and, it may be, other
Member States, at risk.’
Despite this chilling conclusion, the
IPT is prevented by EU law from deciding
whether the Watson requirements apply and
whether the Privacy International challenge
succeeds. The case must be sent to the ECJ,
and given the ‘supremacy’ of EU law, what-
ever it rules must stand.
On the day of the IPT judgment, Mr
Justice Mitting was reported as saying that
the case raised profound political ques-
tions about the role of the EU and the
nation state. He is right. This is an aston-
ishing state of affairs. Apart from anything
else, the ECJ is ill-equipped to rule on
such matters. It is not a human rights court
(unlike the European Court of Human
Rights in Strasbourg). It has no facility to
handle security-sensitive evidence, unsur-
prisingly, given member states did not
intend it to have a national security role.
In due course the ECJ will rule on the
scope of its own jurisdiction. There is no
reason to think it will choose to limit its
reach. On the contrary, it has shown itself
to be increasingly willing to thwart the will
of member states. To the dismay of human
rights groups, it blocked a long-standing
wish that the EU become a signatory to the
ECHR. Why? Because deferring to judg-
ments from Strasbourg would impede its
own ambitions to become the EU’s premier
human rights court.
In other words, governments of coun-
tries that are signatories to the ECHR are
bound by decisions of the European Court
of Human Rights. But the EU decided that
it stands above any such external check on
its powers.
Many people were surprised by the inte-
grationist ambitions set out by Jean-Claude
Juncker in his State of the Union address.
This is because they have chosen to look the
other way while power and authority have
moved ineluctably to the EU’s federal insti-
tutions — away from member states, and
their citizens. Reclaiming sovereignty allows
the nation to decide for itself how to balance
the needs of security with the requirements
of privacy and keep its citizens (and visitors)
safe. Co-operating with others to improve
security plainly makes sense. Giving up the
right to decide does not.Marina Wheeler is a barrister and member
of the Bar Disciplinary Tribunal.T
he issue of sovereignty has mysteri-
ously disappeared from the debate
over Brexit. Some business-focused
commentators even like to assert that in a
‘global, interconnected world’, sovereignty
is meaningless. But a court judgment, deliv-
ered earlier this month, perfectly illustrates
what is at stake.
The case is about national security. Spe-
cifically, it is about the legality of techniques
used to identify and disrupt people intent on
unleashing terror: the kind of terror we have
seen recently in Manchester, Westminster,
Borough Market and Parsons Green.
The technique at issue is the bulk col-
lection of communications data (BCD).
This data is the ‘who’, ‘where’, ‘when’ and
‘with whom’ of communications, not what
was written or said. It includes, for exam-
ple, information about a subscriber to a
telephone service or an itemised bill. This
is acquired by commercial service provid-
ers and supplied to the intelligence agencies
for them to analyse. According to David
Anderson QC, the former Independent
Reviewer of Terrorism Legislation, the use
of these powers saves lives. Interrogating
such data has enabled terrorists’ intended
targets to be identified swiftly, even where
the individuals involved were not already
under surveillance.
Nevertheless, privacy campaigners
oppose the collection of BCD, and use the
courts to try to outlaw it. In October 2016,
the Investigatory Powers Tribunal (IPT) —
a specialist court set up by the British par-
liament to scrutinise the activities of the
intelligence agencies — rejected one such
attempt, ruling that the existing commu-
nications data regime complied with the
European Convention on Human Rights
(ECHR). But the claimant, Privacy Inter-
national, hasn’t given up. Now, it argues
that BCD must also comply with the Char-
ter of Fundamental Rights. This is the EU’s
bespoke human rights instrument from
which the UK government claimed —
wrongly — to have secured an opt-out.
The existence of two parallel Euro-
pean human rights charters is confusing.
The ECHR, which is enforced by the Europe-
an Court of Human Rights (in Strasbourg),
and since the Human Rights Act, by the
national courts, predates the EU and has
A court’s contempt
The ECJ’s quest for ever-more power
MARINA WHEELERTo sign up to receive the week’s
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ANALYSIS IS
ALREADY ON
THE SPECTATOR’S
WEBSITEIssues of national security are
supposed to lie outside the remit of the
European Court of Justice