Leading eurosceptic campaigners are taking aim at the EU’s record on combatting terrorism. Michael Gove told the Sunday Times last weekend EU judges were dictating “what our spies can do and whether we can be kept safe”. Boris Johnson said “the power to take decisions about … counter terrorism surveillance is being taken away from the UK”.
Gove and Johnson were unavailable for comment. But the most relevant recent case was when the ECJ struck down a 2006 EU law on data retention. This law required internet and phone records to be kept for up to two years in case they were needed to investigate terrorism or serious crime.
In the wake of terror attacks in London and Madrid, the British government pushed strongly for new EU rules back in 2005. Charles Clarke, then Home Secretary, told the European Parliament that such data was valuable in investigating serious crime, and that threats such as terrorism “are best tackled internationally”.
UK pressure was decisive in getting those rules agreed. But they were controversial. Eventually the ECJ struck them down, finding their broad scope unduly interfered with people’s privacy.
For some – including Johnson’s wife, who is a QC – this judgement was a “troubling” example of jurisdictional muscle-flexing. And it was a blow to the UK, which was then prevented from having similar blanket powers at national level. But the case is not quite as clear as Gove and Johnson make out.
First, the court did not find that data retention obligations were in themselves against the EU’s Charter of Fundamental Rights. It found such obligations would have to meet safeguards, for example, being better targeted on serious crime and having judicial control on access. The UK government may argue such restrictions inhibit spies’ work. But civil rights’ campaigners such as Liberty take a different view. And referring to related UK legislation, Conservative MP and former shadow Home Secretary David Davis – no pro-European – argued that blanket data retention has “serious consequences for everyone’s privacy”.
Second, even if the UK were not in the EU, it would still be party to the European Convention on Human Rights, policed by the separate European Court of Human Rights in Strasbourg. The Strasbourg court has taken similar cases and made similar findings: that anti-terror laws should not mean an untrammelled invasion of privacy. Of course, some may argue we should leave the Convention too. But it is not clear if that’s what Gove and Johnson want to do.
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Third, the judgement should also be seen in the context of other successful actions the EU has taken to fight terrorism. For example, the European Arrest Warrant enables criminals to be extradited and prosecuted across borders, while the UK has pushed for and got all EU states to agree on the sharing of air passengers’ data. The UK opts in to many EU police and criminal justice measures – even though it does not have to – because it is in the national interest.
Gove and Johnson evidently find scrutiny by a supranational court irksome. But that is the trade-off for having supranational rules and international cooperation – which on balance help in the fight against terrorism. While the UK didn’t want the 2006 law struck down, UK influence and pressure brought about a data retention directive in the first place, as well as other measures such as collecting air passengers’ data. This is why many, from the Home Secretary Theresa May to the government’s independent reviewer of terrorism laws, believe it is safer to stay in.
Edited by Michael Prest
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