UK Data Retention and Investigatory Powers Act Faces Judicial Review

The High Court in London has today granted permission for a Judicial Review of the United Kingdom’s controversial and semi-recycled Data Retention and Investigatory Powers Act (DRIP), which is the law that among other things governs how much information the security services can collect from Internet and phone providers.

The DRIP Act was controversially rushed into law during July 2014 and as a replacement for the previous Regulation of Investigatory Powers Act 2000, which was broken after the European Court of Justice ruled that the underlying Data Retention legislation was invalid (here and here) because it breached the “fundamental right to respect for private life and the fundamental right to the protection of personal data” (i.e. Charter of Fundamental Rights of the EU).

Not long after that David Davis MP, an often outspoken Conservative minister on matters of state surveillance, and Labour’s equally familiar Tom Watson MP, teamed up with support from civil rights group Liberty, the Open Rights Group (ORG) and Privacy International (PI) to seek a Judicial Review of the Government’s “emergency” surveillance law (on the grounds of Article 8 ECHR and Articles 7 and 8 of the European Charter of Fundamental Rights). Today Mr Justice Lewis has granted that request.

Elizabeth Knight, ORG’s Legal Director, said:

“After the Court of Justice of the EU declared the Data Retention Directive invalid, the UK government had the opportunity to design new legislation that would protect human rights. It chose instead to circumvent the decision of the CJEU by introducing the Data Retention and Investigatory Powers Act (DRIPA), which is almost identical to the Data Retention Directive.

Through our submission, we hope to help demonstrate that DRIPA breaches our fundamental human right to privacy and does not comply with human rights and EU law.”

The case will now proceed to a “substantive hearing“. A Judicial Review is a special type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body, such as the Government. Related reviews are designed more to investigate how a decision has been made rather than whether or not the outcome of that decision was the right one, although if successful the Government might be forced into making amendments.

Crucially though the DRIP Act already has a sunset clause because the regulation is generally regarded as temporary until a more permanent solution can be agreed, which may or may not extend the Government’s Internet snooping powers even further. Never the less if a Judicial Review criticises certain established aspects of the DRIP Act then that could impact future legislation.

As ever such cases are rarely quick and so we might have to wait awhile before the outcome is known.