MPs win legal challenge as rushed UK surveillance powers ruled as “unlawful”

Profile picture for user ddpreez By Derek du Preez July 16, 2015
The High Court in the UK has said that the government has nine months to bring back new legislation.

The UK's rushed surveillance legislation – commonly referred to as the 'Snooper's Charter' – has been ruled as unlawful by the High Court, following a legal challenge that was brought by two MPs from opposing political parties.

MPs David Davis and Tom Watson, whom were represented by civil rights group Liberty, were successful in proving that sections of the Data Retention and Investigatory Powers Act 2014 (DRIPA) were not compatible with the British public's right to respect for private life and communications.

The news will come as a blow to Home Secretary Theresa May, who has said that without the surveillance powers UK lives are “at risk”.

However, since Edward Snowden's revelations about the NSA's mass collection of communications data in the United States and abroad, which led to other country's having to open up about how they monitored citizens, campaigners have been very vocal and have fought for the need for transparency and proper controls to be introduced.

DRIPA, as it currently stands, allows Britain’s spy agencies access to people’s phone and internet data by ensuring that communications companies retain all information for 12 months. Critics claim that the legal framework is too lax and allows the government to access private data without too much resistance or requirement to show why they need the data.

The legislation was particularly controversial as the Act was fast-tracked through Parliament and onto the statute books in July last year after the three main party leaders at the time and the Home Secretary argued that without the new law the country would be seriously vulnerable to terrorist activity.

Typically it takes weeks or months to pass new legislation. The government now has until March 2016, nine months, bring new legislation forward. The current unlawful sections of DRIPA will remain in force until then, but at that point will cease to have effect.

James Welch, legal director for Liberty said:

Liberty has 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.

Campaigners, MPs across the political spectrum, the Government’s own reviewer of terrorism legislation are all calling for judicial oversight and clearer safeguards. 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.

Law theme with gavel scales books © Sebastian Duda -
The High Court found that sections 1 and 2 of DRIPA are unlawful on the basis that:
  • they fail to provide clear and precise rules to ensure data is only accessed for the purpose of preventing and detecting serious offences, or for conducting criminal prosecutions relating to such offences.
  • access to data is not authorised by a court or independent body, whose decision could limit access to and use of the data to what is strictly necessary. The ruling observes that: “The need for that approval to be by a judge or official wholly independent of the force or body making the application should not, provided the person responsible is properly trained or experienced, be particularly cumbersome.”

Commenting on the result, the two MPs, who would typically be on opposing ends of the political spectrum, took a united front. David Davis, Conservative MP for Haltemprice and Howden, said:

The court has recognised what was clear to many last year, that the Government’s hasty and ill-thought through legislation is fatally flawed. They will now have to rewrite the law to require judicial or independent approval before accessing innocent people’s data, reflecting the new consensus amongst experts in the Anderson and RUSI reports. This change will improve both privacy and security, as whilst the Government gave Parliament one day to consider its law, the court has given almost nine months.

theresa may
Home Secretary Theresa May

Tom Watson, Labour MP for West Bromwich East, added:

The Government was warned that rushing through important security legislation would end up with botched law. Now the High Court has said they must come back to Parliament and do it properly. The Government gave MPs one day to discuss the legislation which was wrongly represented as respectful of people's right to privacy: it has until March 2016 to make sure that the law is re-written. There must be independent oversight of the Government's data-collection powers and there must be a proper framework and rules on the use and access of citizens' communications data.

My take

Over to you Theresa May...