The English High Court has declared that UK legislation which expanded government powers to require communication providers to retain communication traffic data is incompatible with human rights, and is unlawful.
The legislation is seen by the government as a key power to ensure that such data is accessible by law enforcement and security services to investigate serious crime and issues of national security.
The Data Retention and Investigatory Powers Act 2014 (DRIPA) reinstated the requirements that existed in the UK under the Data Retention (EC Directive) Regulations 2009 which had to be replaced after the European Court of Justice in Digital Rights Ireland declared the data retention provisions of the Data Retention Directive (2006/24/EC) (which the 2009 Regulations implemented) invalid in April 2014.
DRIPA came into effect in the UK in July 2014, as discussed in this blog, there was criticism of both the wide-ranging powers it purported to confer on the Government and the use of a fast-tracked process to pass the legislation.
Tom Watson, a Labour MP, and David Davis, a Conservative MP, joining forces with Liberty, a leading civil liberties group, mounted a legal challenge to DRIPA by applying for a judicial review (a process in the UK whereby a judge reviews the lawfulness of a decision or action taken by a public body).
Lord Justice Bean delivered the judgment of the Court (comprising him and Mr. Justice Collins) that section 1 of DRIPA, which deals with the retention of communications traffic data:
- “does not lay down clear and precise rules providing for access to and use of communications data retained pursuant to a retention notice to be strictly restricted to the purpose of preventing and detecting precisely defined serious offences or of conducting criminal prosecutions relating to such offences”
- “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 for the purpose of attaining the objective pursued”.
Following the principles laid down in Digital Rights Ireland, in which it was decided that the Data Retention Directive, implemented in Ireland by the Criminal Justice (Terrorists Offence) Act, 2005, interfered with Articles 7 and 8 (the public’s right to respect for private life and communications and to protection of personal data) of the EU Charter of Fundamental Rights, the English High Court found that the section was also incompatible with Articles 7 and 8 of the Charter. The Digital Rights Ireland case was so central to the court’s reasoning that key paragraphs from the judgment of that case were appended to the judgment.
The High Court ordered that the section requiring retention of data should therefore be “disapplied.”
- “in so far as access to and use of communications data retained pursuant to a retention notice is permitted for purposes other than the prevention and detection of serious offences or the conduct of criminal prosecutions relating to such offences”
- “in so far as 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 for the purpose of attaining the objective pursued.”
David Anderson QC, lead author of “A question of trust: report of the investigatory powers review”, a report which was laid before Parliament in June 2015, had concluded the legislation governing the powers to retain data was “undemocratic [and] unnecessary”.
The disapplication is suspended until after 31 March 2016 which means the unlawful section of DRIPA will remain in force until that date in order to allow the Government to redraft the legislation.
The Court has granted to the Secretary of State permission to appeal the order to the Court of Appeal.
The remaining sections of the Act extending the ability of the UK to intercept communications of non UK communication providers with UK customers remain in force until the sunset date of 31 December 2016.
This post was prepared with the assistance of Glen Jeffries in the London office of Latham & Watkins.