Successful Intervention in Judicial Review of Data Retention Legislation

The High Court today declared that key parts of the Data Retention and Investigatory Powers Act 2014 breach EU law and must be disapplied. The Act was rushed through parliament in one week in July 2014, allowing little time for thorough debate or civil society engagement. Deighton Pierce Glynn acted for two such expert organisations: Open Rights Group and Privacy International, in their intervention in the judicial review of the Act brought by David Davis MP and Tom Watson MP (who were represented by Liberty).

The DRIP Act empowered the Home Secretary to require communications providers to retain everyone’s communications metadata for up to one year. ‘Metadata’ is all the information about our communications apart from their content: the ‘who’, ’what’, ’where’ and ’when’ of our phone calls, text messages and internet/email use. Today’s judgment makes clear that the DRIP Act failed to include sufficient protections against disproportionate access to that data by public authorities. The Interception of Communications Commissioner found that over half a million such requests are made per year.

The effect of today’s judgment has been suspended until 31 March 2016, to give the government time to enact compliant replacement legislation.

Open Rights Group and Privacy International’s intervention focused on the important EU legislation which already regulates this area and the clear legal requirements laid down by the judgment of the Court of Justice of the EU (CJEU) in the Digital Rights Ireland case that struck down the Data Retention Directive.

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. Now that the High Court has agreed that DRIP does not comply with EU law, we hope that the Government will listen to these concerns.

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 re-introduce the Snoopers’ Charter, but an opportunity to introduce an effective surveillance law that is compatible with human rights.”

Dan Carey of Deighton Pierce Glynn stated: “Today’s judgment is very welcome. It sends a clear signal that a sweeping data retention and access regime is unlawful, and that access to that data should be authorised by an independent regulator. The court suggests that the retention of our data on a blanket basis is permissible however, and in our submission that also is incompatible with EU law.”

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