The High Court has held that section 1 of the Data Retention and Investigatory Powers Act 2014 (DRIPA) is inconsistent with European Union (EU) Law and has ordered the section to be disapplied. However, the Court has suspended the order for disapplication until 31 March 2016 in order for parliament to align DRIPA with EU law.

Background

DRIPA received Royal Assent on 17 July 2014 after being introduced only three days earlier on 14 July 2014. Its purpose was to make provisions regarding the retention of certain communications data in light of the declaration of invalidity made by the Court of Justice of the European Union in relation to the Data Retention Directive (Directive 2006/24/EC).

“Communications data” can be used to demonstrate the time, location and the identity of the originator and recipient of the communication. However, it does not include the content of any communication, for example, the text of an email or a conversation on a telephone.

At the time of its passing, the Law Society criticised DRIPA as it believed parliament did not have enough time to scrutinise and debate the legislation.

Subsequently, two MPs, Tom Watson and David Davis challenged DRIPA, arguing that it was not compatible with Articles 7 (respect for private and family life) and 8 (protection of personal data) of the Charter of Fundamental Rights of the EU. They argued that the use of communications data was not limited to cases involving serious crime and there was a lack of adequate safeguards in place to protect communications data.

Decision

Lord Justice Bean and Mr Justice Collins found two main problems with s1 DRIPA:

  1. it does not lay down any clear and precise rules providing for access to and use of communications data retained in order to prevent and detect precisely defined serious offences or to conduct criminal prosecutions relating to such offences; and
  2. it does not make access to data dependent on a prior review by a court or an independent administrative body whose decision limits access to and use of the data to what is strictly necessary for the purpose of attaining the objective pursued.

Pursuant to these findings, the Court held that the section of DRIPA should be disapplied as it is inconsistent with EU Law. This disapplication order has been suspended until 31 March 2016 to allow parliament sufficient time to ensure DRIPA becomes consistent with EU Law.

Comment

The judgment has been welcomed by human rights groups who have campaigned for fundamental reform on the UK’s surveillance laws.  However, the Home Office has stated that access to communication data is a fundamental part of investigating all crimes that have a severe impact on people and that limiting access to communications data as suggested would be too restrictive. Richard Berry, the lead on communications data for the National Police Chiefs’ Council, has also expressed concern, stating that limiting access to communications data hinders the police’s ability to meet its obligation under the Human Rights Act to safeguard lives.

The Home Office is seeking to appeal the judgment.

To read the full judgment, click here.

To read commentary from CMS prior to the judgment, click here