A clear message to our Government: your Snoopers' Charter will breach British people’s fundamental rights
Yesterday we received the opinion of the Advocate General in the case brought by Tom Watson MP – represented by Liberty – challenging the Data Retention and Investigatory Powers Act, or DRIPA.*
The Advocate General is a judge who provides a preliminary opinion on cases referred to the Court of Justice of the European Union (CJEU). His opinion isn’t binding on the judges who then rule on the case – but it’s usually a good indication of the way the Court is likely to jump.
Let’s hope that’s the case here, because Advocate General Saugmandsgaard Øe has delivered a forceful opinion which should cause the Government to seriously consider revising the Investigatory Powers Bill currently before Parliament – or face the prospect of further legal challenges.
DRIPA (strictly sections one and two of the Act) gives the Home Secretary the power to require communications service providers (CSPs – companies providing phone, email and internet services) to retain communications data on all of us for up to 12 months.
Comms data are the who, when, where and how of communications – everything but the content. It is information capable of building an incredibly detailed, intimate picture of our private lives.
Under DRIPA, that data can then be accessed by the police and a broad range of other public bodies, including local authorities and bodies as bizarre as the Gambling Commission and the Food Standards Agency.
This is then subject to an extremely lax access regime, with most bodies able to grant access themselves with absolutely no independent oversight or sign-off from a judge.
An “emergency” law
DRIPA was passed in a hurry in 2014 after the CJEU, in a case called Digital Rights Ireland, struck down an EU Directive which had previously given the Home Secretary the same powers.
The CJEU found that the lack of safeguards in the Directive breached two articles of the European Charter of Fundamental Rights (the EU’s human rights instrument) – Article 7, which protects privacy, and Article 8, which confers data protection rights.
The response of then Home Secretary (now Prime Minister) Theresa May was effectively to immediately re-legislate for the same powers – rushing through DRIPA in a matter of days, with no proper scrutiny or parliamentary debate.
So she shouldn’t be surprised the Advocate General considers that her “emergency legislation” fails for broadly the same reasons as the Directive struck down in the Digital Rights Ireland case.
Like the High Court, the Advocate General concluded that – where EU countries have a blanket policy requiring the retention of comms data – the police and others should only have access to that data for the purposes of investigating serious crime and only with prior independent authorisation (not the flimsy internal authorisation procedures our law provides for).
But he went further, making it clear that the Court’s ruling on challenges to these regimes must proactively investigate whether a blanket system is necessary and whether there are less intrusive measures that could work as well – and fully assess whether storing and accessing our data in this way is proportionate.
The new Snoopers’ Charter
The measures in the Investigatory Powers Bill, the latest incarnation of the Snoopers’ Charter, go much further than those in DRIPA – vastly expanding mass data-gathering powers and failing entirely to provide even the basic privacy safeguards highlighted by the Advocate General.
Dozens of public bodies will continue to have access to all of our communications data – including our entire web browsing histories – with no need for independent sign-off beforehand, and no need whatsoever for suspicion of criminality.
The Advocate General joins a growing chorus of voices telling our Government: your proposed new spying law will breach the British people’s fundamental rights.
We expect the final judgment later in the year – let’s hope the Court follows his lead.
* (“Tom Watson?” you ask. “Wasn’t someone else involved?”. The answer is yes – David Davis MP had to withdraw from the case following his recent appointment as a Secretary of State.)