National security is supposed to lie outside its remit – but perhaps not for much longer

The issue of sovereignty has mysteriously 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, delivered earlier this month, perfectly illustrates what is at stake.

The case is about national security. Specifically, 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 collection 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 example, information about a subscriber to a telephone service or an itemised bill. This is acquired by commercial service providers 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 parliament to scrutinise the activities of the intelligence agencies — rejected one such attempt, ruling that the existing communications data regime complied with the European Convention on Human Rights (ECHR). But the claimant, Privacy International, hasn’t given up. Now, it argues that BCD must also comply with the Charter 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 European human rights charters is confusing.
The ECHR, which is enforced by the European Court of Human Rights (in Strasbourg), and since the Human Rights Act, by the national courts, predates the EU and has nothing to do with it. The Charter of Fundamental 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 supposed to lie outside the remit of the European 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 decisions involving the collection of BCD, the ECJ has ignored Article 4 as well as provisions in directives to similar effect. It has also failed to refer to its own previous judgments 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 communications 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 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.’

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, whatever it rules must stand.

On the day of the IPT judgment, Mr Justice Mitting was reported as saying that the case raised profound political questions about the role of the EU and the nation state. He is right. This is an astonishing 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, unsurprisingly, 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 judgments from Strasbourg would impede its own ambitions to become the EU’s premier human rights court.

In other words, governments of countries 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 integrationist 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 institutions — 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 QC is a British lawyer