David Davis was one of several people who took legal action against May when she was interior minister over the bulk collection of electronic data by security agencies.
The European Court of Justice's senior legal official today largely backed their case, but it emerged that Davis had dropped out since being appointed.
"As part of his new ministry duty, it is not permitted to bring a case against a government decision", Davis's spokesman told AFP.
Leading Brexiteer Davis was named by May last week in the newly-created post of Secretary of State for Exiting the European Union.
He filed the case while he was a backbench MP alongside the deputy leader of Britain's opposition Labour party, Tom Watson.
The ECJ's advocate general -- giving a legal opinion that the court is likely to follow -- said it was only legal for Britain to retain mass data in cases involving serious crime.
May had been pushing through a law to make telecommunications companies keep all data for a maximum period of 12 months.
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