Liberty represents MPs David Davis and Tom Watson in legal challenge to Government’s “emergency” surveillance law
22 July 2014
Today Liberty announced it will seek a Judicial Review of the Government’s “emergency” surveillance law – on behalf of MPs David Davis and Tom Watson. The announcement comes days after the Data Retention and Investigatory Powers Act 2014 (DRIP) was rushed through Parliament onto the statute book.
Liberty is arguing on Mr Davis and Mr Watson’s behalf that the new legislation is incompatible with Article 8 of the European Convention on Human Rights (ECHR), the right to respect for private and family life, and Articles 7 and 8 of the EU Charter of Fundamental Rights, respect for private and family life and protection of personal data.
Since 2009, communications data has been retained by public communications services and network providers under a 2009 EU Data Retention Directive. But in April the Court of Justice of the European Union (CJEU) ruled that the Directive was invalid because it was so sweeping in its interference with individual privacy rights. The judgment made clear that existing UK legislation, including the Regulation of Investigatory Powers Act 2000 (RIPA), required urgent review.
However, on 10 July 2014, DRIP was introduced by Ministers claiming that “emergency” legislation was necessary. The Bill was privately agreed following discussions between the three main party leaders. It became law within just three days – rendering proper parliamentary scrutiny, amendment and even debate impossible.
James Welch, Legal Director for Liberty, said: “It’s as ridiculous as it is offensive to introduce an “emergency” law in response to an essay crisis. The court ruling that blanket data retention breached the privacy of every man, woman and child in the UK was more than three months ago. The Government has shown contempt for both the rule of law and Parliamentary Sovereignty, and this private cross party stitch-up, railroaded onto the statute book inside three days, is ripe for challenge in the Courts.”
David Davis, Conservative MP for Haltemprice & Howden, said: “This Act of Parliament was driven through the House of Commons with ridiculous and unnecessary haste to meet a completely artificial emergency. As a result Members of Parliament had no opportunity to either research it, consider it or debate it properly and the aim of this legal action is to make the Government give the House the opportunity to do what it should have been allowed in the first place. Proper, considered and effective law making. The overall aim is to create law which both protects the security of our citizens without unnecessarily invading their privacy.”
Tom Watson, Labour MP for West Bromwich East, said: “The three party leaders struck a private deal to railroad through a controversial Bill in a week. You cannot make good laws behind closed doors. The new Data Retention and Investigatory Powers Act does not answer the concerns of many that the blanket retention of personal data is a breach of fundamental rights to privacy.”
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NOTES TO EDITORS:
1. 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 proveedings 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 the DRIP 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.
2. 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.
3. Liberty, via its letter before claim, has invited the Home Secretary to concede that the Act is indeed incompatible and to publish and present a replacement Bill – allowing Parliament to fulfil its proper constitutional function. Alternatively, the Home Secretary is invited to concede that Mr Davis and Mr Watson’s claim is arguable and that a substantive hearing ought to follow.