High Court declares that emergency surveillance legislation is unlawful

Victory! We have victory!

The High Court of Justice has declared s1 of the Data Retention and Investigatory Powers Act 2014 to be unlawful and contrary to European Law. The article in question is part of emergency surveillance legislation enacted last year by the coalition government. The Court was responding to a judicial review request from David Davies MP and Tom Watson MP (ruling here).  I attach a press release sent to me by Mr Davies MP.

David Davis MP, Tom Watson MP and Others v the Secretary of State for the Home Department

Today, the High Court found against the Government in David Davis’s and Tom Watson’s joint legal challenge to the Government’s emergency surveillance legislation. The court declared that section 1 of the Data Retention and Investigatory Powers Act 2014 is inconsistent with European Union law and consequently granted an order striking down the legislation.

Following the judgment in the Digital Rights Ireland case last year, the Claimants’ argued that:

• section 1 of the Data Retention and Investigatory Powers Act 2014 (“DRIPA”) is in breach of their fundamental rights;
• that there is an utterly inadequate oversight and an extremely lax access regime; and
• that the blanket collection of the whole nation’s data without differentiation, limitation or exception is an unnecessary and disproportionate measure.

The court agreed with Mr Davis’s and Mr Watson’s arguments and declared that DRIPA:

• does not lay down clear and precise rules providing for access to and use of communications data; [para 114] and
• access to the data is not made dependent on a prior review by a court or an independent administrative body whose decision limits access to and use of the data to what is strictly necessary [para 114] – an access regime which provides adequate safeguards for Charter rights is required; [para 89]

In addition the court observed that:

• any legislation establishing a retention regime for personal data must expressly provide for access to and use of the data to be strictly restricted to the purpose of preventing and detecting precisely defined serious offences, or of conducting criminal prosecutions relating to such offences; [para 91]
• the need for approval to be by a judge or official wholly independent of the body making the application should not, provided the person responsible is properly trained or experienced, be particularly cumbersome. If EU law requires independent approval, as the court is satisfied it does, that must be put in place. [para 98]

As a result of its decision, the court has granted an order disapplying section 1 of DRIPA [para 122]. It is rare for a domestic court to strike down a piece of primary legislation, and this is the first time a Member of Parliament has brought a successful judicial review against the Government.

The Government has been allowed, at the request of Mr Davis and Mr Watson, until the end of the March 2016 before DRIPA is disapplied [para 122], to allow sufficient time for alternative provisions to be put in place, ensuring that the UK’s security is not undermined by a sudden loss of capabilities.

This judgment follows shortly after the publication of two reports, one by the Independent Reviewer of Terrorism Legislation [para 12] and one from the Royal United Services Institute, on surveillance powers. Both reports agreed with the court’s position that judicial or independent review for access to data is now necessary, reflecting a new consensus on this matter that should act as a template for the Government.