Judicial Review of Data Retention Legislation Goes to Court of Appeal

The Court of Appeal begins a two day hearing on 22 October 2015 to consider the lawfulness of key parts of the Data Retention and Investigatory Powers Act 2014 (‘DRIPA’). The High Court found in July that the power in DRIPA which permits the government to require telecommunications providers to retain all of our communications data – the ‘who’, ’what’, ’where’ and ’when’ of our phone calls, text messages and internet/email use – was unlawful as it was a disproportionate interference with EU citizens’ privacy rights. However, it suspended its order annulling the offending provisions until 31 March 2016 in order to permit the government time to appeal.

The Court of Appeal will now hear further argument at a two day hearing, including additional written submissions filed by Open Rights Group and Privacy International, who are intervening in the case represented by Deighton Pierce Glynn, Jessica Simor QC of Matrix Chambers and Ravi Mehta of Blackstone Chambers. In those submissions the interveners underline the importance of the court considering not only the statutory data retention power, but also the lax statutory regime for accessing retained data. They point to the recent judgment of the Grand Chamber of the Court of Justice of the EU in the Maximillian Schrems case as confirmation that this is the correct approach.

ORG’s Executive Director Jim Killock comments:

“When the Government forced DRIP through Parliament in a week last July, they denied our parliamentarians and the British public a proper debate about how our personal data is being kept by telecoms companies and accessed by the state.

As many of us pointed out at the time, this was inconsistent with the findings of the CJEU that blanket data retention intruded on our right to privacy. We hope that the Court of Appeal will agree with the High Court’s clear findings that DRIP breached EU law.

The court’s decision will no doubt shape the government’s Investigatory Powers Bill, so the stakes could not be higher.”

Dan Carey of Deighton Pierce Glynn stated:

“I hope that the court will heed the clear guidance from the Court of Justice of the EU that the UK’s approach to surveillance and the retention of our communications data is incompatible with our privacy rights and the rule of law.”