23 Nov Challenge to UK Data Retention Legislation Referred to Court of Justice of the EU

The Court of Appeal has declined to rule on the lawfulness of the Data Retention and Investigatory Powers Act 2014 (‘DRIPA’) and opted instead to refer the key issues to the Court of Justice of the EU (CJEU).

DRIPA 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 – for periods of up to a year.  It was passed by Parliament as emergency legislation in less than a week in July 2014 and was subsequently challenged by the MPs David Davis and Tom Watson.

The MPs’ legal challenge was successful and in July 2015 the High Court declared the key provisions of DRIPA to be unlawful and ordered their annulment.  However, it suspended that order until 31 March 2016 to give the government time to appeal.

The government’s fast-track appeal was heard over two days in October 2015 and the Court of Appeal has now given its judgment.  It has cast doubts over the High Court’s decision, suggesting that the CJEU’s previous pronouncements on the minimum safeguards required to preserve privacy rights were not binding, and that member states have considerable latitude in how they apply them.  However, the Court has declined to rule conclusively on these questions and has instead opted to refer them to the CJEU.

The Court of Appeal’s decision is likely to lead to delay, and it is now unclear whether the CJEU will be able to decide the reference before the government passes the Investigatory Powers Bill which is anticipated to become law by the end of 2016, when it will replace DRIPA.

The CJEU’s decision in this case will be an important one regarding citizens’ protections against excessive surveillance.  It is likely therefore to impact on the Investigatory Powers Bill, if passed into law, as it replicates DRIPA in many key respects and seeks to extend government powers in others (for example, extending the types of data retained to include details of all of the websites each of us visit).

Deighton Pierce Glynn, together with the barristers Jessica Simor QC of Matrix Chambers and Ravi Mehta of Blackstone Chambers, represent Open Rights Group and Privacy International, who are intervening in the case and who now propose to join the reference to the CJEU.  In their submissions they emphasise that data retention per se is a very serious interference with individuals’ fundamental rights, and that any exception permitting this must be construed exceptionally narrowly.  They point to the recent judgment of the Grand Chamber of the CJEU in the Maximillian Schrems case as confirmation that this is the correct approach.

Dan Carey of Deighton Pierce Glynn stated:

“Referring the legal challenge to the Court of Justice of the EU will involve some delay, but it is an opportunity for the court to make clear that EU law requires meaningful safeguards for a broad power such as this, and that the government has not struck the right balance in current legislation or indeed the proposed Investigatory Powers Bill.”

Image by r2hox

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