The High Court in London will today hear the opening arguments of a Judicial Review that has been launched against the controversial Data Retention and Investigatory Powers Act (DRIP), which among other things governs how much information the security services can collect from UK Internet and phone providers.
The Act was rushed into law last year as a replacement for the previous Regulation of Investigatory Powers Act 2000, which was declared “invalid” after the European Court of Justice ruled (here and here) that 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).
Several months after that the new DRIP Act was rushed into law under emergency powers (here). The Act includes a termination clause that ensures the legislation falls at the end of 2016 and as such the Government are now racing to build a proper RIPA replacement through the even more controversial Investigatory Powers Bill (here), which threatens to log a much bigger slice of everybody’s online activity (but not the content of your communications).
In the meantime David Davis MP (Conservative), an often outspoken critic of state surveillance, and Labour’s equally familiar Tom Watson MP have joined forces with the civil rights group Liberty to fight the temporary DRIP Act through a Judicial Review that was officially granted at the end of last year (here).
Liberty says that they will use the original EU ruling and the Human Rights Act as a foundation for attacking the DRIP Act, which they say is still fundamentally in breach of the original ruling despite a re-wording of some sections. It would also create problems for the future Investigatory Powers Bill if an argument against DRIP could be won before the former is even published.
Tom Watson, MP for West Bromwich East, said:
“The Government’s decision to use emergency powers to enable it to spy on citizens shows the rights of the individual need to be strengthened to ensure the state can’t act with impunity. Even MPs are powerless to prevent such powers being enacted.
The Human Rights Act allows us to challenge those powers in the courts but the Tory Government is intent on tearing up the Act and doing away with the limited legal protection it affords. It is vital that we fight for it to be retained.”
Liberty is calling for a new law that would forget the mass Internet / phone surveillance approach and instead take a more targeted direction, which would demand prior judicial authorisation and a requirement that data is only retained as part of investigations into serious crime or to prevent death and injury.
The opponents of DRIP began their defence yesterday and will continue today as part of a “substantive hearing” phase and after that it will be the Government’s turn. The judge will then have to review the lawfulness of the relevant aspects, which depending upon the outcome could force the Government to make further changes.
But Judicial Reviews can also be quite long-winded and there are many delaying tactics that might be used by the Government, which could in theory enable them to finish off the new IPBill in time for the courts final ruling. Never the less what the judge decides will have an impact and so this is one to watch.
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