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#High court rules data retention and surveillance legislation unlawful

Emergency surveillance legislation introduced by the coalition government last year is unlawful, the high court has ruled. A judicial challenge by the Labour MP Tom Watson and the Conservative MP David Davis has been upheld by judges, who found that the Data Retention and Investigatory Powers Act (Dripa) 2014 is “inconsistent with European Union law”. The act requires internet and phone companies to keep their communications data for a year and regulates how police and intelligence agencies gain access to it.

The government will now have to pass fresh legislation that must come into effect before the end of March. The two MPs said the judgment underlined the need for prior authorisation by a judge before officers are permitted to examine the retained information from the internet, social media or phone calls. The Home Office, however, said it would appeal against the ruling, which, it warned, may result in police and investigators losing data that could save lives.

Lord Justice Bean and Mr Justice Collins declared that section 1 of the act “does not lay down clear and precise rules providing for access to and use of communications data” and should be “disapplied”. The judges said the order should be suspended until after 31 March 2016 “to give parliament the opportunity to put matters right”.

The judges identified two key problems with the law: that it does not provide for independent court or judicial scrutiny to ensure that only data deemed “strictly necessary” is examined; and that there is no definition of what constitutes “serious offences” in relation to which material can be investigated. For legal authority, the judges relied on an earlier decision, known as Digital Rights Ireland, by the European Court of Justice in Luxemburg, which is binding on UK courts.

In their challenge, Davis and Watson argued that the law allowed the police and security services to spy on citizens without sufficient privacy safeguards.They said the legislation was incompatible with article eight of the European convention on human rights, the right to respect for private and family life, and articles seven and eight of the EU charter of fundamental rights, respect for private and family life and protection of personal data.

The MPs complained that use of communications data was not limited to cases involving serious crime, that individual notices of data retention were kept secret, and that no provision was made for those under obligation of professional confidentiality, in particular lawyers and journalists. Nor, they argued, were there adequate safeguards against communications data leaving the EU.

Watson, a former defence minister, said after the ruling: “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, a former 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.

“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.”

But the 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.

Speaking on BBC Radio 4’s The World at One, 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 is particularly worried by a section of the judgment that says access to retained data should only be permitted in “precisely defined serious offences”, a definition it believes will prove too restrictive.

Assistant Chief Constable Richard Berry, lead on communications data for the National Police Chiefs’ Council, also expressed concern: “Policing has become increasingly reliant on the availability of communications data, not only in relation to the investigation of criminality, but also in meeting our obligations under the Human Rights Act to safeguard lives. A significant proportion of our acquisition of data relates to situations where life is at immediate risk and a significant proportion of those requests relate to non-crime inquiries, for example tracing vulnerable and suicidal missing persons.”

Human rights groups welcomed the ruling. James Welch, legal director for 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 intervened in the case, 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.”