The surveillance and data retention laws that were introduced by the coalition government of the United Kingdom in 2014, and which were proposed to be extended in May this year with the Investigatory Powers Bill, have been found unconstitutional according to a ruling by the High Court of Justice on Friday.
The case came to the attention of the court following a judicial challenge from Conservative MP David Davis and Labour MP Tom Watson, who argued that the bill is “inconsistent with European Union law”.
Following proceedings, the judges declared that the ruling should be suspended until after 31 March 2016 “to give parliament the opportunity to put matters right”.
What is DRIPA?
The Data Retention and Investigatory Powers Act, or DRIPA as it’s more commonly known, was introduced in July 2014 to extend the powers of law enforcement and government agencies to retain and examine phone and internet data from British citizens. Specifically, the act gives the government the power to retain phone call data, internet browsing activity, and information from social media feeds. The act requires internet and phone providers to retain all of their communications data for one year, as well as determining how law enforcement and intelligence agencies access such information.
At the time of its introduction, the legislation was heavily criticized by members of parliament for the speed at which it was passed. It also faced fierce opposition from human rights groups and advocates of online privacy, both inside and outside of the government, because of its infringement of European law and because it facilitated the retention and examination of data from individuals who had no record of criminal activity.
The case against DRIPA
The main emphasis of MPs Davis and Watson’s argument was that the legislation allows police and security agencies to monitor the behaviour of individuals without respecting privacy. Specifically, they argued that the bill disregards article eight of the European convention on human rights, which protects the right to respect for private and family life, and articles seven and eight of the EU charter of fundamental rights, which ensures respect for private and family life and the protection of personal data.
The MPs also argued that the act allows for the retention of data from citizens regardless of criminality, and the fact that the retention of data is kept hidden from the individuals concerned. What’s more, there is no framework to protect individuals who are obligated to confidentiality, especially journalists and lawyers, and the bill lacks definitions for retained data leaving the EU.
Watson, who has worked previously as a defence minister, said “It’s a year to the day since DRIPA received royal assent. Good governance is about allowing the legislature the room to make law. In this case, it didn’t happen. Good opposition is about holding governments to account, and that didn’t happen either. “So we find ourselves in a position where the courts have had to say to parliament, ‘Go back and start again.’ In his final speech in parliament on this bill last year, David Davis warned that this legislation would be junk in a year, and it is.”
Davis, who worked previously as Foreign Office security minister, said “What this means is that access by the police and other agencies to everyone’s data is too easy. It can range from a politician giving permission [to intercept communications] to anyone in the next office. That’s against the law, and it’s not either in the interests of privacy or security.”
Davis added that “The government gave parliament one day to pass this legislation. This court has given the government nine months to sort it out. It’s the right judgment. It’s a measured judgment. It gives no risk to security because the government has plenty of time to sort it out. What this reflects is the emerging consensus in the last few weeks that prior judicial approval [of intercepting communications] is needed.”
During the case, Lord Justice Bean and Mr Justice Collins declared that section one of the legislation “does not lay down clear and precise rules providing for access to and use of communications data,” and as such should be “disapplied”.
They also identified two central problems with the legislation: first, the legislation does not accommodate independent judicial criticism, which would ensure that only data deemed “strictly necessary” is accessed; and second that the legislation lacks a definition for “serious offences” in terms of which material can be examined.
The case was informed by an earlier ruling, known as Digital Rights Ireland, which was judged by the European Court of Justice in Luxembourg and which also applies to UK courts.
Home Office security minister, John Hayes, said: “We disagree absolutely with this judgment and will seek an appeal. Communications data is not just crucial in the investigation of serious crime. It is also a fundamental part of investigating other crimes which still have a severe impact, such as stalking and harassment, as well as locating missing people, including vulnerable people who have threatened to commit suicide.”
Hayes added: “The effect of this judgment would be that in certain cases, communications data that could potentially save lives would only be available to the police and other law enforcement if a communications company had decided to retain it for commercial reasons. We believe that is wrong. I do think there is a risk here of giving succour to the paranoid liberal bourgeoisie whose peculiar fears are placed ahead of the interests of the people.”
The Home Office also said that they will appeal the judgment, on the grounds that it will impede current police work, though many are relieved that such wide-reaching legislation has been curtailed by the judicial authority, including numerous human rights groups.
Human rights groups
James Welch, legal director for the civil rights group Liberty, said: “[We have] 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. The high court has now added its voice, ruling 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 – not plough on with more of the same.”
Jim Killock, director of the Open Rights Group, which contributed to the prosecution, said: “In autumn, the government will present the investigatory powers bill to parliament. This should not be, as rumoured, an attempt by the home secretary to reintroduce the snoopers’ charter, but an opportunity to introduce an effective surveillance law that is compatible with human rights.”
Rachel Logan, Amnesty UK’s legal programme director, said: “It shouldn’t be left to concerned MPs and campaign organisations to show that it’s totally unacceptable to rush through draconian powers which allow government agents to spy on citizens without proper safeguards.”
Carly Nyst, legal director of Privacy International, said: “Currently, under British law, access to retained data by the police and local authorities is subject to no independent review or authorisation. Police and other authorities simply self-authorise their own access to individuals’ personal information.”