Data retention directive "invalid"

Andrew Cormack Andrew.Cormack at
Tue Apr 8 17:05:08 BST 2014

> -----Original Message-----
> From: ukcrypto-bounces at [mailto:ukcrypto-
> bounces at] On Behalf Of Roland Perry
> Sent: 08 April 2014 11:44
> To: ukcrypto at
> Subject: Re: Data retention directive "invalid"
> In article
> <CAEWR3kutzO170j9eP_qy=VN8vO=zUdPoKWmeZqPZhun4TsAwpg at>,
> Francis Davey <fjmd1a at> writes
> >Although I haven't had any practical involvement in this regulatory
> >area for many years, my inclination is that UK regulations predate the
> >transposition of the Directive, and that Plan B in the UK would be to
> >fall back onto voluntary arrangements made in the immediate aftermath
> >of 9/11.
> >
> >The Data Retention (EC Directive) Regulations 2007 and 2009 _are_ the
> >transposition of the EU directive.
> Did they repeal the earlier Regs?
> --
> Roland Perry

The post-9/11 stuff is UK primary legislation - the Anti-Terrorism, Crime and Security Act 2001. As far as I can see that would need a UK court to declare incompatibility under the Human Rights Act. That's the normal way UK primary legislation is challenged. Until Parliament responds to a declaration by amending the law, ATCSA will stay.

But (many thanks to Francis for pointing this out, even though my audible gasp produced surprise in the conference I'm attending!) the 2007/9 Regulations are *secondary* legislation, created under s2(2) of the European Communities Act 1972. That allows:
"any designated Minister or department may by order, rules, regulations or scheme , make provision-
(a)for the purpose of implementing any EU obligation of the United Kingdom"

So the question on the Regs is whether removing the "EU obligation" means that the implementing Regulations created under s2(2) also disappear automatically. I'm pretty sure that's a question of legislative procedure (the ECA itself appears to be silent on the question), rather than Human Rights Law. And I've no idea whether there's any precedent...

Andrew Cormack
Chief Regulatory Adviser, Janet
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