The EU shouldn’t strike down UK laws

On 17 July, the English High Court ruled that a piece of UK law – the Data Retention and Investigatory Powers Act (DRIPA) – was unlawful, on the basis that it violated the Charter of Fundamental Rights of the EU.

UK acts of parliament are not subject to review under UK law, nor are the decisions of the UK judiciary. Therefore, the law in the UK can’t challenge itself. However, as the High Court said last week, the position of legislation under EU law is different. A UK law was thus declared unlawful on the basis of a European law – or, in other words, a law passed by our democratically elected government was declared unlawful due to a law that we had no democratic say over whatsoever.

So it transpires that the High Court had to use EU law to do what the Liberal Democrats failed to do throughout 2014: get rid of DRIPA. DRIPA was perhaps the finest illustration of the Lib Dems’ utter inability to protect privacy during their time in coalition. The party’s complete failure to prevent DRIPA from being rushed on to the statute books became a symbol of its failure to curb the Tories’ most intrusive legislative impulses.

But the weakness of the Lib Dems hardly matters now that they have effectively been consigned to the political history books. The real problem is that our privacy laws are now being written in a back-and-forth between Cameron’s cabinet, their wigged overlords at the High Court, and the High Court’s own wigged overlords at the European Court. Law is being shaped not in the course of democratic parliamentary debate, but in the entirely anti-democratic litigation of a European courtroom.

It is no overstatement to say that DRIPA was subject to the least democratic influence of any act over the past decade. The reason the Tories were forced to pass DRIPA in the chaotic way they did was that the existing regime around privacy was subject to judicial review. When the government originally attempted to introduce the powers contained within DRIPA, allowing the authorities to continue to have access to individuals’ phone and email records, the measures were knocked down by EU judges. That challenge, which was rubberstamped by our High Court, forced the Tories to draft this new surveillance act, now called DRIPA, on the back of a fag packet in July 2014, before rushing it through parliament without proper debate.

Many claim that the rushed way in which DRIPA was passed was undemocratic, as it undermined parliament’s ability to scrutinise its terms. Last week, following the High Court ruling, the president of the Law Society declared that the enactment of DRIPA undermined ‘parliamentary scrutiny and democratic debate’.

The fact that lawyers are now lecturing parliament about democracy is a good illustration of the current state-of-affairs. While the boss of the Law Society is right to say that the law was rushed through, demonstrating the Tories’ cavalier attitude to our private information, that was just a small aspect of what made the act undemocratic. The truly undemocratic aspect of DRIPA was the way it was effectively prompted and crafted from on-high by the judges and lawyers of the European Court. These are people we have no power over, and yet their rulings, and subsequent litigation, shaped the way in which UK citizens’ data is handled.

Of course, DRIPA itself is a terrible piece of legislation. Throughout the act’s bizarre little life, we at spiked have been at pains to point out the draconian nature of the powers it granted. Indeed, Cameron initially tried to claim that the act maintained the ‘status quo’ around data retention following the original judicial review, when in fact the act radically expanded the state’s powers to compel companies to retain and disclose new types of digital material.

But the history of this law should be of equal concern as its contents. If this case sets a precedent, we are truly in trouble. It is not difficult to imagine a time when more laws suffer the same fate as DRIPA – being hit back and forth like a legislative tennis ball between our parliament, the UK High Court and the European Court. The people left out of the game are us, the public. We are the ones who have had the least say over DRIPA, a law which is now out of the hands of those elected to represent us. While the UK government strives to take away more of our privacy, the European Court simultaneously robs us of our democratic power to hold lawmakers to account. We must be vigilant, both about the government’s attempts to intrude into our private lives, and the equally offensive trend towards having more and more of our laws written by lawyers.

Luke Gittos is law editor at spiked, a solicitor practicing criminal law and convenor of the London Legal Salon. His first book, Why Rape Culture is a Dangerous Myth: From Steubenville to Ched Evans, will be published later this year.