The EU’s messy legislation process has allowed the UK government to pass emergency laws without a public debate on privacy

Anna Sonny, 11 July 2014

The UK government has decided to pass emergency laws on surveillance in response to an ECJ court ruling that has invalidated the 2006 Data Retention Directive.

The 2006 Data Retention Directive was introduced in the wake of terrorist attacks on London, Madrid and the US – and allowed communications firms to keep data for between six and 24 months. The point of the directive was to harmonise national governments’ laws on data retention as an anti-terrorism measure.

But when the ECJ threw out this directive earlier this year, communications providers weren’t sure what to do with all the stored information; under pressure from campaign groups threatening to take action against them, who used the ECJ decision as endorsement, they asked the government to clarify the criteria that was left confused by the ruling.

Under the new legislation (which still has to align with the EU data protection directive and the Charter of Fundamental Rights of the European Union) companies will be able to retain communications data on customers, which includes logs of when calls were made and which numbers were dialled, but not the content of calls.

There has been much discussion about the laws themselves and their effect on human rights – which should definitely be debated, but the process of EU legislation including the removal of directives should also be tightened in order to avoid this kind of uncertainty in the first place.

The EU infamously creates legislation that leads to unending bureaucracy, but this time their invalidation of a directive means it will have to be treated as though it never existed in the first place, which left communications providers and national governments in a bit of a quandary.

This is an example of how tangled the EU legislation process can become. The EU introduced an over-reaching directive which nobody really agreed with in the first place, backed it full force and came down heavily on member states that didn’t implement it in the right time frame, fining Sweden and threatening to fine Germany whose Constitutional Court declared the directive unconstitutional. Now the EU have backtracked, and instead of drafting new legislation to make things a bit clearer for everyone they have effectively left a gaping legal hole which the British government is now frantically filling without a proper public debate on exactly what they are doing and why.