Government appeals High Court judgment that ruled DRIPA surveillance legislation unlawful
22 October 2015
The Government’s appeal against a High Court judgment that ruled its surveillance legislation unlawful will be heard today and tomorrow (22 and 23 October).
The Government is challenging the July 2015 ruling, which upheld a challenge to the Data Retention and Investigatory Powers Act (DRIPA) brought by MPs David Davis and Tom Watson, represented by Liberty.
This week’s Court of Appeal hearing comes as the Government prepares to put similar legislation before Parliament. The forthcoming Draft Investigatory Powers Bill is expected to seek to expand the mass data-gathering powers challenged in this case, without regard for the lack of safeguards highlighted by the High Court.
It is also anticipated that the draft Bill will attempt to enable the tracking of every person’s web and social media use, and strengthen security services’ powers for bulk interception of our emails, phone calls and other communications.
DRIPA was rushed through Parliament in a matter of days in July 2014 by the Coalition Government, with no time for scrutiny and little debate. It allows the Home Secretary to order communications companies to retain communications data for 12 months, and catches the communications records of everyone in the UK – including emails, calls, texts and web activity. This applies to MPs, journalists, lawyers, doctors and others whose correspondence may be confidential or privileged.
Data retained under DRIPA is then subject to an extremely lax access regime, allowing it to be acquired by hundreds of public authorities who can authorise access themselves for a broad range of reasons that have nothing to do with the investigation of serious crime. Roughly half a million requests are granted each year.
The High Court found sections 1 and 2 of the Act breached the British public’s rights to protection of personal data and to respect for private life and communications under the EU Charter of Fundamental Rights because:
- they fail to provide clear and precise rules to ensure data is accessed only for preventing, detecting or prosecuting serious crime.
- they do not require data to be authorised by a court or independent body, which could limit access to and use of data to what is strictly necessary.
The unlawful sections of DRIPA will remain in force until the end of March 2016 to allow time for the Government to legislate properly. At that point they will cease to have effect.
A growing consensus for change
Liberty supports the role of communications data in solving and preventing crime, but does not believe that justifies the costly and lengthy mass retention of records of the entire population.
The upcoming Draft Investigatory Powers Bill is a once-in-a-generation opportunity for parliamentarians to legislate for proper, transparent safeguards – including a requirement that data only be retained and accessed as part of investigations into serious crime and to prevent death and injury, and that all surveillance requests be authorised by a judge.
Home Secretary Theresa May has so far refused to commit to recommendations for prior judicial approval for surveillance requests, despite the High Court judgment and recommendations from campaigners, MPs across the political spectrum and the Government’s own reviewer of terrorism legislation, David Anderson QC.
James Welch, Legal Director for Liberty, said: “Why won’t the Home Secretary respond to the judgment by introducing the safeguards suggested by the High Court?
“Instead she continues her fight against reform – even in the face of a growing consensus among MPs, campaigners and experts in the field that safeguards and judicial oversight are needed.”
David Davis, Conservative MP for Haltemprice and Howden, said: “On 17 July the High Court ruled that the Government’s data retention law is inconsistent with EU law. The ruling reflects the new consensus, even among the security establishment, that judicial authorisation for access to our data is a necessity. By challenging the judgment, the Government is putting themselves under unnecessary time pressure, given the generous provision the court granted to bring the law into compliance.
“The Government’s defeat in July was not a surprise. Concerns over its surveillance powers have been voiced time and again. The Government has for some time ignored all criticism of these powers and allowed policy in this area to be dictated by the security services.
“Given the detailed and reasonable recommendations set out in David Anderson QC’s and RUSI’s reports into surveillance, the Government’s time and efforts would be better focussed on fixing the current legal framework, which has been branded, “undemocratic, unnecessary and – in the long run – intolerable,” than pursuing needless litigation.”
Notes to editors
For more information, contact the Liberty press office on 020 7378 3656 or 07973 831128.
- Read the High Court’s judgment of 17 July 2015 in full.
- The Court found sections 1 and 2 of DRIPA unlawful under Articles 7 and 8 of the EU Charter of Fundamental Rights 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 ruling observed 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 person responsible is properly trained or experienced, be particularly cumbersome.”
- The judgment followed a major report from the Government’s reviewer of terrorism legislation David Anderson QC – published on 11 June 2015 – who described current laws as “undemocratic” and “intolerable” and called for a comprehensive overhaul of legislation governing state surveillance. Among other things, he recommended prior judicial authorisation for all interception warrants and some communications data requests – something for which Liberty has campaigned for more than a decade.
- On 14 July 2015, a surveillance review from the Royal United Services Institute (RUSI) – whose panel includes a former Director General of MI5, Chief of the Secret Intelligence Service and Director of Intelligence for the Metropolitan Police – recommended judicial authorisation for some interception warrants.
- Judicial approval is also supported by Labour, the SNP, the Liberal Democrats, the Green Party and a number of high-profile Conservative MPs including former Attorney General Dominic Grieve QC.
- Home Secretary Theresa May has so far refused to commit to recommendations for prior judicial approval. The UK is alone amongst the Five Eyes nations – an intelligence alliance comprising the UK, USA, Australia, Canada and New Zealand – in making no use of judges in the prior authorisation of interception warrants.