In a challenge brought by MPs David Davis and Tom Watson, represented by Liberty, the High Court has found that the Data Retention and Investigatory Powers Act 2014 (DRIPA), ss 1 and 2 are incompatible with the British public’s right to respect for private life and communications and to protection of personal data under Articles 7 and 8 of the EU Charter of Fundamental Rights.
DRIPA was rushed through Parliament with the claim that emergency legislation was necessary after the Court of Justice of the EU ruled the existing EU Directive on data retention invalid because it was so sweeping in its interference with individual privacy rights.
DRIPA allows the Home Secretary to order communications companies to retain communications data for 12 months. It catches the records of communications of everyone in the UK, including the emails, calls, texts and web activity of MPs, journalists, lawyers, doctors and other correspondence that may be confidential or privileged.
The High Court has found ss 1 and 2 unlawful 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 observes 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 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.
David Davis, Conservative MP for Haltemprice and Howden, said: “The court has recognised what was clear to many last year, that the Government’s hasty and ill-thought through legislation is fatally flawed. They will now have to rewrite the law to require judicial or independent approval before accessing innocent people’s data, reflecting the new consensus amongst experts in the Anderson and RUSI reports. This change will improve both privacy and security, as whilst the Government gave Parliament one day to consider its law, the court has given it almost nine months.”
Tom Watson, Labour MP for West Bromwich East, said: “The Government was warned that rushing through important security legislation would end up with botched law. Now the High Court has said they must come back to Parliament and do it properly. The Government gave MPs one day to discuss the legislation which was wrongly represented as respectful of people’s right to privacy: it has until March 2016 to make sure that the law is re-written. There must be independent oversight of the Government’s data-collection powers and there must be a proper framework and rules on the use and access of citizens’ communications data.”
This news item is based on a Liberty press release; the court judgment is available as a pdf from the panel opposite and both the judgment and the court order can be downloaded from the judiciary website here.
