I trust everyone had a pleasant Christmas, with lots of mince pies! The European Court of Justice did their best to spoil our Christmas and make life easier for terrorists, with a typically absurd ruling in the DRIPA case.
This was a legal challenge by two MPs, Tom Watson and David Davis, who having lost the argument in Parliament, tried to get the Data Retention and Investigatory Powers Act (DRIPA – presumably DRIP was not used for presentational reasons) quashed by the courts. Amazingly, with respect, without a single reference to the Thoburn case by either counsel or judges, Lord Justice Bean and Mr Justice Collins issued an order purporting to ‘dis-apply’ DRIPA with effect from March 2016.
In so doing they were treating the Factortame case as rightly decided even though the Divisional Court in Thoburn (Metric Martyr) had declined to follow it. In order to get around the British Constitution and in particular the rule that Parliament cannot bind its successors, the judges in that case invented a new class of super-statutes immune from Implied Repeal.
Their decision was not only wrong, with respect, it wasn’t binding – the super-statute concept was dreamt up in secret after legal argument was heard. No order ‘dis-applying’ a statute can of course be made by a British court. Pre-1972 acts inconsistent with community law are impliedly repealed anyway by the European Communities Act. Primary legislation passed after 1972 cannot be affected by that act.
Bean LJ and Collins J, with respect, were under a constitutional duty to apply DRIPA to the facts of the case before them. It mattered not whether or not the legislation breached community law. That was a matter for Parliament, which under our Constitution can do what it likes. The judges were perfectly entitled to issue a declaration that the act breached community law, but they were powerless to issue any effective remedy.
Since the court, with respect, was engaged in unconstitutional defiance of Parliament, its order purporting to ‘dis-apply’ DRIPA was invalid, or, as we lawyers say, a nullity. Disgracefully, the government team went along with this nonsense and agreed, without saying why, that the court could act as a court of appeal from Parliament.
That the court was setting itself up over the Queen-in-Parliament at the request of a couple of MPs who had lost the argument makes the decision even more of a constitutional outrage. If it wished, Parliament could remove both judges from office, fine them, imprison them or sentence them to death. Their decision, with respect, was as clear a contempt of Parliament as could possibly be.
Since the court’s order was a nullity there was no reason at all for anybody to obey it. It was the legal equivalent of a death sentence imposed by anti-motoring magistrates on a driver for drink-driving. It was so obviously issued in excess of the court’s authority that no one needed to wait for the opinion of a higher court.
In fact the extraordinary decision of the Divisional Court was appealed. The Court of Appeal (Lord Justice Patten, Lord Justice Lloyd Jones and Lord Justice Vos), very possibly aware of the explosive political consequences of the judges using community law as a pretext to defy Parliament, kicked the case into touch by referring it to the ECJ. Possibly they were hoping that the sunset clause in DRIPA would kick in before the ECJ, which is notoriously slow, dealt with it.
In fact the ECJ expedited Watson and Brice, together with a Swedish case raising similar issues. Sadly, the Swedish Constitution is a worthless piece of paper so far as the EU is concerned. Swedish judges have trampled upon it at will, well aware that the Riksdag, compared with our own Parliament, is toothless. It even lacks the power, in a proper case, to sentence rogue judges to death. (I am not of course saying that Andrew Collins and David Bean should be sentenced to death – each is a nice chap, with respect, and the High Court of Parliament could simply fine them, or impose a community penalty).
The case will now come back to the Court of Appeal, but after the sunset clause has kicked in. It will now be up to Parliament to decide whether to extend DRIPA, enact new legislation in breach of community law, or enact compliant legislation. Since Parliament can do what it likes it is not under the slightest obligation to enact feeble legislation which happens to be compliant. In a post-Brexit world there is every possibility that Parliament will act robustly. The fact that a couple of idiots decided to challenge its legislation in the courts, an impertinence for which they should be expelled from the House, is no reason to cave in to the ECJ.
As the appalling Islamist terrorist attack in Berlin just before the ECJ’s decision was handed down tragically demonstrated, the EU’s data protection regime strikes the wrong balance. It leaves the peoples of EU member states vulnerable to organised crime and terrorism.
With respect to the ECJ, this is no time to be encouraging terrorism. DRIPA was an entirely reasonable piece of legislation, with a greater emphasis on public protection and security than the EU’s daft directives. For Remainers to have argued that continued EU membership would enhance our security was a joke. The sad reality is that the innocent men, women and children murdered in Berlin were sacrificed on the altar of German membership of the EU, not to mention the German federal government’s insanely dangerous asylum policies.
I hope that Parliament will continue to strike a sensible balance between civil liberties and security. I say nothing against civil liberties, indeed I have fought for them all my professional career. There is not much point enjoying civil liberties however, if they come at the expense of your life.
Finally, may I wish a Happy New Year to all my readers, complete with an Article 50 notice!