Secretary of State for the Home Department v Davis MP & Ors

The court’s provisional view was that Digital Rights Ireland Joined Cases C-293/12 and C-594/12 did not automatically prescribe universal requirements for national data-retention legislation. Its observations concerned the cumulative deficiencies in the EU Directive and had to be understood in that context. Safeguards governing access to retained data remain relevant when assessing the lawfulness of a retention regime under EU law. Article 8 of the Charter is more specific than Article 8 ECHR. Because the effect of Digital Rights Ireland and its relationship with ECHR standards were unclear and necessary to judgment, questions were referred to the CJEU.

The respondents challenged section 1 of the Data Retention and Investigatory Powers Act 2014 and related regulations. The Divisional Court declared the provision inconsistent with EU law because it did not restrict access to precisely defined serious offences and did not require prior review by a court or independent administrative body. The Secretary of State appealed. The respondents also argued that the regime lacked sufficient safeguards against removal of retained data from the European Union.

The central issue was the effect of Digital Rights Ireland Joined Cases C-293/12 and C-594/12: whether it laid down mandatory requirements for national legislation and whether the Charter imposed standards going beyond Article 8 ECHR.

1. Reference to the CJEU. The appeal was not finally determined. The court referred two questions concerning the effect of Digital Rights Ireland Joined Cases C-293/12 and C-594/12 to the CJEU. It considered that the answers were unclear and necessary to judgment. The issue was of general and continuing importance despite the sunset provision in the Data Retention and Investigatory Powers Act 2014.
2. Provisional interpretation of Digital Rights Ireland. The court considered that the CJEU’s observations at paragraphs 57 to 62 were descriptive of the Directive’s breadth and deficiencies, rather than universally applicable prescriptions for unspecified national legislation. The Directive had contained no effective safeguards concerning access and use. The safeguards required in a national regime had to be assessed in context, having regard to the measure’s objectives, breadth and existing protections.
3. The serious-crime passage in Digital Rights Ireland addressed the objective of that Directive. It did not make serious crime the only lawful objective for national access legislation. Nor did the CJEU’s reference to prior review by a court or independent administrative body establish, on the court’s provisional view, a universal requirement applicable to all national regimes.
4. Retention pursuant to a Member State direction fell within EU law, particularly Article 15(1) of the e-Privacy Directive. Safeguards concerning access were relevant to assessing the lawfulness of the retention regime and had to be considered by reference to general principles of EU law, including the Charter. The court nevertheless doubted that the CJEU had intended to legislate for national access regimes outside the harmonised field.
5. Article 7 of the Charter corresponded to Article 8 ECHR. Article 8 of the Charter was a more specific data-protection guarantee and was not limited in meaning and scope to Article 8 ECHR. The court doubted that Digital Rights Ireland had intended to impose more stringent universal requirements than the existing ECHR jurisprudence without explaining the basis for such a major change.
6. The parties were to be heard on the form of the order for reference and on any application for interim relief.

1. Court of Appeal (Civil Division) — In [2015] EWCA Civ 1185, the court referred two questions concerning the effect of Digital Rights Ireland to the CJEU and reserved final determination of the appeal.
2. High Court of Justice, Queen’s Bench Division, Divisional Court — On 17 July 2015, the court declared section 1 of the Data Retention and Investigatory Powers Act 2014 inconsistent with EU law in relation to serious-crime limitation and prior independent review, disapplying it on those grounds with suspension until after 31 March 2016.