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.

1. Steve Jones

   December 8, 2014 at 4:14 pm

   Judicial review is on a gradual mission creep. At one time it was used to determine if those carrying out executive duties for the state were acting legally. So it wasn’t challenging primary legislation, but the exercising of powers within it. For instance, whether the Home Secretary had gone beyond their legal powers in some policy or other.

   This seems to be a bit different (although I haven’t read the detail of the grounds) in that it seems to be challenging primary legislation, rather than the exercising of powers within it. However, judicial reviews challenging primary legislation in this country are not allowed as far as I know under the doctrine of parliamentary sovereignty. (Some regimes have constitutional courts which review the legality of primary legislation, but the UK is not one of them).

   So I’ll be intrigued to see what the nature of this challenge will be.

   Of course the European Court of Justice can make rulings, but as far as I know, member countries then have to pass their own legislation to comply. If they fail to do so the member country can have sanctions (like fines) levied, but such ECJ judgements do not automatically form laws in member countries, although they might affect the way domestic laws are interpreted by domestic courts.
   • Steve Jones

     December 8, 2014 at 4:28 pm

     Having done a bit more research, then there is an exception to not being able to challenge primary legislation under judicial review (at least according to Wikipedia), and that’s where it might conflict with European law. I suspect the eurosceptics won’t like that.

     http://en.wikipedia.org/wiki/Judicial_review_in_English_law
2. dragoneast

   December 9, 2014 at 5:21 pm

   Just for clarification, the European Convention on Human Rights (GB was a founder signatority in the 1950s) was finally incorporated into domestic law by the Human Rights Act, which I seem to recall came into effect around 2000.It’s separate from the EU. The Judges can’t rewrite the statute under dispute, which is for parliament,but decide on conformity, at first instance. Domestic law is to be interpreted so far as possible not to conflict with the Articles and Protocols of the convention. The European Court of Human Rights is the final court of appeal with the same jurisdiction as it had before the Act i.e. decisions on the application of the treaty i.e. the international obligations of the Government. There has been talk of replacing the Convention with a domestic bill (Act) of rights, but no one has seen it, and it would still raise the same issues i.e. what happens in the case of conflict.

Comments RSS Feed