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Court of Appeal rules Government surveillance regime to be “effectively unlawful”

The Government is “breaking the law” by collecting the nation’s Internet activity and phone records and letting public bodies grant themselves access to these personal details with no suspicion of serious crime and no independent sign-off, meaning that significant parts of its latest ‘Snoopers’ Charter’ are, according to Liberty, “effectively unlawful”.

Judges at the Court of Appeal have backed a challenge by MP Tom Watson, represented by Liberty, to the Data Retention and Investigatory Powers Act (DRIPA), a previous law covering state surveillance. DRIPA expired at the end of 2016, but the Government replicated and vastly expanded the same powers in the Investigatory Powers Act, which started to come into force last year. Civil liberties and Human Rights campaigner Liberty is challenging this latest law in a major separate case to be heard in the High Court later this year.

In anticipation of this ruling, the Government has already conceded that the Investigatory Powers Act will need to change. Liberty commented: “The Government’s half-baked plans do not even fully comply with past court rulings requiring mandatory safeguards, and they continue to allow public bodies to indiscriminately retain and access personal data, including records of Internet use, location tracking using mobile phones and records of whom we communicate with and when.”

Extreme mass surveillance

Martha Spurrier

Martha Spurrier

Martha Spurrier, Liberty’s director, said: “Yet again, a UK court has ruled the Government’s extreme mass surveillance regime to be unlawful. This judgement tells ministers in crystal clear terms that they’re breaching the public’s Human Rights. The latest incarnation of the Snoopers’ Charter, the Investigatory Powers Act, must be changed. No politician is above the law. When will the Government stop bartering with Judges and start drawing up a surveillance law that upholds our democratic freedoms?”

Tom Watson, the Labour MP, added: “This legislation was flawed from the start. It was rushed through Parliament just before recess without proper scrutiny. The Government must now bring forward changes to the Investigatory Powers Act to ensure that hundreds of thousands of people, many of whom are innocent victims or witnesses to crime, are protected by a system of independent approval for access to communications data. I’m proud to have played my part in safeguarding citizens’ fundamental rights.”

The ruling: what does it mean?

Court of Appeal Judges have ruled that DRIPA breached British people’s rights because, among other things, it didn’t restrict access to this data, in the context of the investigation and prosecution of crime, to the purpose of fighting serious crime, and also let police and public bodies authorise their own access, instead of subjecting access requests to prior authorisation by a court or independent body.

Liberty comments: “Since this legal challenge was launched in 2014, the Investigatory Powers Act has not only re-legislated for the powers found unlawful, but gone much further. The Act dramatically expanded powers to gather data on the entire population, while maintaining the lack of safeguards that resulted in this legal challenge.”

It also legalised other unprecedented mass surveillance powers, including mass hacking, spying on phone calls and e-mails on an industrial scale and collecting huge databases containing sensitive information on millions of people.

A statement from Liberty also reads: “These indiscriminate powers are also unlawful and Liberty is challenging them in a separate case, having crowdfunded more than £50,000 in just a few days to support the challenge.

2014 challenge to DRIPA

Tom Watson MP

Tom Watson MP

Tom Watson launched his challenge to DRIPA in 2014. The law forced communications companies to store detailed information about the locations of people using devices such as mobile phones, as well as the ‘Who?’, ‘When?’ and ‘How?’ of every e-mail, text, phone call and Internet communication – including those of MPs, lawyers, doctors and journalists.

Watson argued that the Act contained inadequate protections for British people’s fundamental rights, in turn letting hundreds of organisations and Government agencies – from police forces through to representatives of HMRC – grant themselves access to this highly personal and revealing data for a huge range of reasons that had nothing to do with investigating serious crime.

In 2015, the High Court agreed with Watson. The Government appealed and the Court of Appeal referred the case to the European Court of Justice (ECJ) for clarification. In December 2016, the ECJ echoed the High Court’s ruling and, indeed, went further, setting down a series of safeguards that the Government needed to introduce to properly protect people’s privacy.

On 30 November last year, the Home Office accepted that the Investigatory Powers Act needed to be changed as a result of the ECJ judgement, but according to Liberty the proposed changes fall far short of what the ECJ believes is needed going forward.

About the Author
Brian Sims BA (Hons) Hon FSyI, Editor, Risk UK (Pro-Activ Publications) Beginning his career in professional journalism at The Builder Group in March 1992, Brian was appointed Editor of Security Management Today in November 2000 having spent eight years in engineering journalism across two titles: Building Services Journal and Light & Lighting. In 2005, Brian received the BSIA Chairman’s Award for Promoting The Security Industry and, a year later, the Skills for Security Special Award for an Outstanding Contribution to the Security Business Sector. In 2008, Brian was The Security Institute’s nomination for the Association of Security Consultants’ highly prestigious Imbert Prize and, in 2013, was a nominated finalist for the Institute's George van Schalkwyk Award. An Honorary Fellow of The Security Institute, Brian serves as a Judge for the BSIA’s Security Personnel of the Year Awards and the Securitas Good Customer Award. Between 2008 and 2014, Brian pioneered the use of digital media across the security sector, including webinars and Audio Shows. Brian’s actively involved in 50-plus security groups on LinkedIn and hosts the popular Risk UK Twitter site. Brian is a frequent speaker on the conference circuit. He has organised and chaired conference programmes for both IFSEC International and ASIS International and has been published in the national media. Brian was appointed Editor of Risk UK at Pro-Activ Publications in July 2014 and as Editor of The Paper (Pro-Activ Publications' dedicated business newspaper for security professionals) in September 2015. Brian was appointed Editor of Risk Xtra at Pro-Activ Publications in May 2018.

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