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On 8 September 2017, the Investigatory Powers Tribunal decided to refer questions to the Court of Justice of the European Union (‘CJEU’) concerning the collection of bulk communications data (‘BCD’) by the Security Intelligence Agencies from mobile network operators.

The BCD regime was initially secret. In an earlier judgment, the Investigatory Powers Tribunal ruled that the regime was not compliant with the European Convention on Human Rights prior to its public avowal, but (subject to the question of proportionality) was compliant thereafter. In this judgment, the Tribunal addressed the Claimant’s assertion that the regime was also unlawful under EU law, because it failed to provide various safeguards identified as required in the CJEU’s case law, in particular in the case of Watson (concerning the UK's retention of data rules under DRIPA). The Government argued in response both that (i) the BCD regime was outside the scope of EU law, given that it related to national security, and so the EU safeguards were not applicable, and (ii) such safeguards would in any event cripple the Security Intelligence Agencies’ ability to operate the BCD regime and so should not apply.

The Tribunal explored the dispute between the parties as to whether the BCD regime would fall within the scope of the EU law. It expressed a provisional view that the CJEU may have erred in its approach to the scope of EU law in Watson. It also noted that, if the BCD regime were in scope, it was not clear how the Watson safeguards could or would apply in this context. It therefore concluded that it would need to refer questions on both topics to the CJEU.

The full judgment is available here.

Tom de la Mare QC, Ben Jaffey and Daniel Cashman acted for Privacy International.

James Eadie QC acted for the Government.

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