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EU judges are to rule on whether the British security services can carry out surveillance on terrorist suspects without further safeguards to protect privacy.
In a controversial decision, the European Court of Justice will be asked if the UK can collect communications data such as emails and texts in bulk, rather than on specific suspects.
The move comes as ministers prepare to negotiate plans published last week for severing the UK’s links with the EU court’s jurisdiction after Brexit. The referral to Luxembourg for a ruling is being made by the Investigatory Powers Tribunal as part of a case it is hearing over the use of the bulk data by GCHQ, M15 and M16. Judgment is expected soon.
The EU court has already ruled in another case brought by David Davis, now Brexit secretary, and Tom Watson, deputy Labour leader, that the UK has insufficient safeguards for the bulk retention of communications data. However the security services argue that restrictions should not apply in cases of national security as these would hamper their abilities to move swiftly in investigating terror attacks.
David Anderson, QC, the former independent reviewer of terrorism legislation, recently noted that EU case law has “prioritised data privacy over operational efficacy”.
Anderson has warned that EU law will remain “problematic even after Brexit. On this, as in some other respects, the EU looks set to prove a hotel California from which we will check out but which we will never entirely leave,” he wrote in Counsel Magazine.
Millie Graham Wood, legal officer at Privacy International, said: “One of the key issues is that the government is arguing that the safeguards that come from the Watson judgment and other cases don’t apply. That is worrying because they are basic measures.”
The intelligence services insist that their task in identifying terrorism suspects in the event of an attack would be far harder if they had to identify individual suspects and could only use targeted surveillance rather than mass collection of data.