You may remember reading last week that a group of jihadists known as the Beatles had scored a Supreme Court victory over the Home Secretary. To remind you what it was all about, the Beatles were a charming group of ISIS zealots who had specialised in beheadings, torture and other yet more gruesome activities best not mentioned here, whom US forces in Iraq had had the good luck to capture. The UK government was very happy to provide evidence against them, of which it had a good deal, for their future trial in the US. But here a problem arose. Although previously the UK had always refused to provide this kind of evidence unless there was an undertaking that the death penalty would in no circumstances be carried out, in the case of these gentlemen Sajid Javid, the then Home Secretary, saw no need to impose any such condition. The Beatles sued to reverse this decision, and the Supreme Court upheld their claim.
Whatever their views on the death penalty, most people who are not lawyers will find it not a little curious that the decision whether the US Ministry of Defence shared information with the US ended up in the hands of seven senior judges. It did, after all, involve the questions of how to keep up the fight against worldwide extremist terror, and of maintaining good relations with a country whose relations with the UK are vital, both matters that positively cry out to be decided by accountable politicians. But there is a further point which it is easy to miss. The decision of the Supreme Court that intervention was necessary was based squarely on EU law.
The law in issue was EU data protection under a massive piece of Euro-legislation, the General Data Protection Regulation or GDPR, dealing with individual date within Europe. And there was the rub. The evidence that HMG wanted to provide was technically personal data concerning individuals. The fact that the individuals were outside UK jurisdiction, in many cases had no connection with the UK, and were unlikely to be tried in it, was irrelevant: data protection requirements in all their Euro-bureaucratic glory therefore applied. Before HMG could pass any information on, it had to leap through a series of complex procedural hoops created by the EU machine which had drafted the law in question. Since it had not done so, that was an end of the matter. Indeed, three of the court of seven went even further, stating that even if the government had dotted the Is and crossed the procedural Ts, it still would have done no good, since the whole matter was subject to the EU Charter of Fundamental Rights, which protected the right to life and had the effect of peremptorily barring any transfer of any information that could lead to a possible execution. Worryingly, a fourth, while he refused to commit himself, also thought they might be right.
Hence the Beatles’ victory. It’s not difficult to see the dangers here. One is that of EU mission creep. What lies behind the UK data protection regime is, as mentioned above, the GDPR. Now this was generally thought of, and justified, as an attempt to protect the privacy of Europeans from commercial exploitation by global giants like Google, Yandex or Weibo. It is worrying, though not entirely unexpected, to find buried in it provisions that potentially seem aimed at turning the EU into a kind of global data policeman with a remit to control flows of personal data worldwide even where they have nothing to do with EU citizens or residents. That’s the way they do things in the EU.
More to the point, this decision shows the unfortunate tendency of EU law to judicialise questions that should not be judicialised, or (put the other way round) to politicise the judiciary that it requires to take them. The essential issue lying behind the Beatles decision was the UK’s official attitude to the death penalty. Should it be “we don’t do it, but retain a neutral stance on others who practise it”, or “we must actively work at all times to suppress it worldwide, and set our foreign policy accordingly”? Either approach is defensible: the former for believers in democracy and self-determination, the latter for single-minded supporters of the value of life above all things. But if ever there was a decision involving matters of delicate political judgment entirely inappropriate to judicial determination, the decision which of these lines to adopt is surely it. However keen our judges may or may not be to make their mark on a matter one suspects most of them feel strongly about, they must be kept firmly out of this loop. (True, the redoubtable Lady Hale and one other member of the Supreme Court would clearly be unhappy about this, since they regarded opposition to execution anywhere in any form as a political principle that had somehow morphed into part of the warp and weft of the UK constitution independently of Euro-law. But we can leave aside peculiarities such as these).
Unfortunately this division between law and politics is exactly what the EU fails to accept. Faithful to its long-standing managerialist and technocratic traditions, its instinct is to say that the more important a matter, the more vital it is to take it out of the control of politicians who might be swayed by populist votes, and put it into the hands of the bureaucratic and judicial class instead. This is exactly what happened in the Beatles debacle. Indeed, it is a typical example of how this country’s membership of the EU has had the effect of poisoning our law, skewing our foreign policy and ushering in the rule of lawyers where they are inappropriate and unwanted.
You might say, why does this matter? Assuming we are not blown off course by Coronavirus, we are finally disentangling ourselves from the EU at the end of this year. Won’t this mean an end to this kind of interference? Unfortunately, matters are not as simple. At present the UK is set to maintain the GDPR which gave rise to this debacle virtually unchanged as UK law, even after the end of the transition period. No doubt this was the path of least resistance, taken as a result of EU bluster and perhaps vague threats to block all transfers of data. Nevertheless, there is a strong argument that this is not good enough. We need, I suggest, to pressurise the Government to call the EU’s bluff here. If necessary we must simply legislate to prevent questions of the UK’s foreign policy being judicially stymied by the continued application of unnecessary and officious legacy EU rules.
This article was first published on the Bruges Group website, and is republished with permission. You may not use, copy, distribute, publish, syndicate, sub-license and transmit the whole or any part of such material in any manner and in any format and/or media without the permission of the original publishers.