High Court to hear Liberty’s legal challenge to Government’s “emergency” surveillance law

03 June 2015

  • Liberty, David Davis and Tom Watson use Human Rights Act to challenge DRIP Act
  • Hearing comes as Government seeks to expand same data-gathering powers through Investigatory Powers Bill

Liberty’s legal challenge to the Government’s surveillance law, on behalf of MPs David Davis and Tom Watson, will be heard by the High Court on Thursday 4 and Friday 5 June.

Liberty will argue on Mr Davis and Mr Watson’s behalf that the Data Retention and Investigatory Powers Act 2014 (DRIPA) is incompatible with the Human Rights Act – in particular Article 8 of the European Convention on Human Rights, the right to respect for private and family life – as well as with Articles 7 and 8 of the EU Charter of Fundamental Rights, respect for private and family life and protection of personal data.

The hearing comes days after a major U-turn on surveillance in the USA, where sweeping National Security Agency (NSA) surveillance powers expired on Sunday following a Senate showdown – the first rollback of NSA spying powers by Congress since 1978. The US does not require companies to retain communications data, and the USA Freedom Act will ban the Government from accessing telephone records in bulk and introduce new transparency rules.

By contrast, UK Home Secretary Theresa May is bidding to create a turbo-charged Snoopers’ Charter in the form of the Investigatory Powers Bill – which would seek to expand the mass data-gathering powers Liberty is challenging in this case. The Bill is expected not only to attempt to enable the tracking of every person’s web and social media use, but also to strengthen security services’ powers for bulk interception of our emails, phone calls and other communications.

About the Data Retention and Investigatory Powers Act (DRIPA)

DRIPA allows the Home Secretary to order communications companies to retain all communications data for 12 months – no link with the prevention or detection of serious crime is required. It catches the communications of everyone in the UK including the emails, calls, texts and web activity of MPs, journalists, lawyers, doctors and other communications that 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 sign off on their own access 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 and there is no requirement that the requests relate to named individuals or premises – leaving open the possibility of bulk access.

The Act was rushed through Parliament and onto the statute books in July 2014 by Ministers claiming “emergency” legislation was necessary. The Bill was privately agreed following discussions between the then three main party leaders. It became law within just three days – denying time for proper parliamentary scrutiny, amendment or even debate.

DRIPA’s introduction came three months after the European Court of Justice ruled the existing EU Directive on data retention invalid because it was so sweeping in its interference with individual privacy rights. The judgment made clear that existing UK legislation, including the access regime under the Regulation of Investigatory Powers Act 2000 (RIPA), required urgent review.

Emma Norton, Legal Officer for Liberty, said: “The executive dominance of Parliament in rushing through this legislation – using a wholly fabricated “emergency” – made a mockery of parliamentary sovereignty and the rule of law, and showed a staggering disregard for the entire population’s right to privacy.

“It is thanks to the Human Rights Act that we are able to challenge the Government’s actions – the same Government which now seeks to axe that very piece of legislation and, by doing so, curb the British people’s ability to do so in future.”

Tom Watson, MP for West Bromwich East, said: "The Government's decision to use emergency powers to enable it to spy on citizens shows the rights of the individual need to be strengthened to ensure the state can't act with impunity. Even MPs are powerless to prevent such powers being enacted.

"The Human Rights Act allows us to challenge those powers in the courts but the Tory Government is intent on tearing up the Act and doing away with the limited legal protection it affords. It is vital that we fight for it to be retained." 

Liberty does not dispute 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 those who are not involved in such investigations. Liberty is calling for prior judicial authorisation and a requirement that data is only retained as part of investigations into serious crime and to prevent death and injury.

CONTACT: Liberty Press Office on 020 7378 3656 or 07973 831128

NOTES TO EDITORS:

A joint briefing by Liberty, Privacy International, Open Rights Group, Big Brother Watch, Article 19 and English PEN on the fast-track Data Retention and Investigatory Powers Bill is available here.

The Human Rights Act 1998 incorporates the ECHR into UK law. Section 3 requires that, so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights. Section 4 stipulates that in any proceedings in which a Court determines whether a provision or primary legislation is compatible with a Convention right, the Court may – if it is satisfied that the provision is incompatible – make a declaration of that incompatibility. Liberty’s clients, Mr Davis and Mr Watson, claim that section 1 of DRIPA 2014 is incompatible with the Human Rights Act and, in particular, Article 8 of the ECHR, together with Articles 7 and 8 of the EU Charter.

The powers within section 1 of DRIP are extraordinarily wide. In its letter before claim to the Home Secretary, Liberty argues that such powers are incompatible with Article 8 of the ECHR and/or Articles 7 and/or 8 of the EU Charter for a number of reasons, including:

  • Communications data can provide a very intimate picture of a person’s life – who they communicated with; by what means; the time and length of the communication; where the communication took place; and the frequency of the communications. As the CJEU ruling said: “those data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them”;
  • Communications data retained under DRIP is subject to an extremely lax access regime – still governed by the RIPA (Communications Data) Order 2010 – allowing such data to be acquired by hundreds of public authorities;
  • The Act allows the Home Secretary to command, by order, the blanket retention of all communications data for 12 months – no link with the prevention or detection of serious crime is required;
  • In addition to Mr Davis MP and Mr Watson MP, against whom there is no evidence whatsoever capable of suggesting that their conduct or communications data may be linked to any crime, the Act specifically creates an interference with the fundamental right to privacy and protection of personal data of virtually the entire UK – without differentiation, limitation or exception.