Having duly assessed a strong and bold challenge brought by MPs David Davis and Tom Watson who were represented by Liberty, the High Court has subsequently found that Sections 1 and 2 of the Data Retention and Investigatory Powers Act 2014 (otherwise known as DRIPA) are “incompatible” with the British public’s right to respect for private life and communications and to the protection of personal data under Articles 7 and 8 of the European Union’s (EU) Charter of Fundamental Rights.
Referred to by Liberty as a “landmark judgement”, the ruling comes 12 months on from DRIPA receiving Royal Assent (on 17 July 2014). The legislation was put through Parliament by the Coalition Government under claims that “emergency legislation” was necessary three months after the Court of Justice of the EU had ruled the existing EU Directive on data retention invalid because, states Liberty, it was “so sweeping in its interference” with individual privacy rights.
DRIPA allows the Home Secretary Theresa May to order communications companies to retain communications data for 12 months. It catches the records of communications of everyone in the UK – including the e-mails, telephone calls, texts and web activity of MPs, journalists, lawyers and doctors – while encompassing other correspondence that may be considered confidential or privileged.
Data retained under DRIPA is then subject to what Liberty describes as an “extremely lax” access regime, allowing it to be acquired by hundreds of public authorities, many of which can authorise access themselves for a broad range of reasons that, again according to Liberty, have “nothing to do with the investigation of serious crime”.
From a statistical perspective, roughly 500,000 requests are granted each year.
Detail behind the High Court ruling
The High Court has found Sections 1 and 2 of the Data Retention and Investigatory Powers Act unlawful on the basis that:
*they fail to provide clear and precise rules to ensure data is only accessed for the purpose of preventing and detecting serious offences, or for conducting criminal prosecutions relating to such offences
*access to data is not authorised by a court or independent body whose decision could limit access to (and use of) the data to what is strictly necessary. The High Court ruling observes that: “The need for that approval to be by a Judge or official wholly independent of the force or body making the application should not – provided the individual responsible is properly trained or experienced – be particularly cumbersome”
The unlawful sections of DRIPA will remain in force until the end of March 2016. This will allow time for the Government to properly legislate. At that point, the two sections of the Act will “cease to have effect”.
Demand for change is “growing”
Commenting on the High Court’s ruling, James Welch (legal director for Liberty) said: “Liberty has long called for fundamental reform of our surveillance laws to ensure the public’s rights are properly respected by our Government. The chorus of voices demanding change is now growing.”
Welch added: “Campaigners, MPs across the political spectrum and the Government’s own Independent Reviewer of Terrorism Legislation are all calling for judicial oversight and clearer safeguards. The High Court has now added its voice, ruling the key provisions of DRIPA unlawful. Now is the time for the Home Secretary to commit publicly to surveillance conducted with proper respect for privacy, democracy and the rule of law rather than ploughing on with more of the same.”
David Davis, the Conservative MP for Haltemprice and Howden, explained: “The High Court has recognised what was clear to many last year in that the Government’s hasty and ill-thought through legislation is fatally flawed. The Government will now have to rewrite the law to require judicial or independent approval before accessing innocent people’s data, reflecting the new consensus among experts voiced in both the Anderson and RUSI reports. This change will improve both privacy and security. While the Government gave Parliament one day to consider its law, the High Court has given almost nine months.”
Tom Watson, Labour MP for West Bromwich East, stated: “The Government was warned that rushing through important security legislation would end up with a botched law. Now, the High Court has said they must come back to Parliament and do it properly. The Government gave MPs one day to discuss the legislation which was wrongly represented as being respectful of people’s right to privacy. It now has until March 2016 to make sure that the law is re-written. There must be independent oversight of the Government’s data collection powers and there must also be a proper framework and rules on the use and access of citizens’ communications data.”
Growing consensus on the matter
The judgement follows June’s major report from the Government’s Independent Reviewer of Terrorism Legislation, David Anderson QC, who described the current law as “undemocratic” and “intolerable” and called for a comprehensive overhaul of laws governing state surveillance.
Among other things, Anderson recommended prior judicial authorisation for all interception warrants and some communications data requests (something for which Liberty has campaigned for more than a decade).
A surveillance review conducted by the Royal United Services Institute (RUSI) recommended judicial authorisation for some interception warrants. Judicial approval is also supported by the Labour Party, the SNP, the Liberal Democrats, the Green Party and a number of high-profile Conservative MPs (among them former Attorney General Dominic Grieve QC).
Liberty has commented: “In some of the rare instances in which spying has come to light in recent years, the inadequacy of the self-authorisation system has been laid bare. The Metropolitan Police Service has accessed journalists’ phone records and infiltrated social and environmental justice groups.”
Thus far, Home Secretary Theresa May has not committed to the Anderson report’s recommendations for prior judicial approval.
The UK is alone among the ‘Five Eyes’ nations – an intelligence alliance comprising the UK, the USA, Australia, Canada and New Zealand – in making no use of Judges in the prior authorisation of interception warrants.