In a ruling that could have serious ramifications on the way that the government conducts digital surveillance, appeal court judges have found that its mass digital surveillance regime was unlawful.
In December 2016, the EU’s highest court ruled that the government’s keeping emails and electronic communications on a basis that was "general and indiscriminate" was illegal. That threw the controversial surveillance laws – labelled the “Snooper’s Charter” by some – back to the UK's Court of Appeal. Now, that court has ruled that previous surveillance laws were indeed unlawful.
Case originally brought by Tom Watson and David Davis
The case was originally brought by Labour Deputy Leader Tom Watson and Tory David Davis, who later withdrew when he became Brexit Secretary. Watson was represented in court by civil freedoms campaign group Liberty.
In the wake of this week’s decision, Watson said: “This legislation was flawed from the start. It was rushed through parliament just before recess without proper parliamentary scrutiny.
“The government must now bring forward changes to the Investigatory Powers Act to ensure that hundreds of thousands of people, many of whom are innocent victims or witnesses to crime, are protected by a system of independent approval for access to communications data. I’m proud to have played my part in safeguarding citizens’ fundamental rights.”
Liberty said that the decision meant that significant parts of the Investigatory Powers Act 2016 were effectively unlawful and must be urgently changed.
Liberty Director Martha Spurrier said: “Yet again a UK court has ruled the government’s extreme mass surveillance regime unlawful. This judgement tells ministers in crystal clear terms that they are breaching the public’s human rights.”
“When will the government stop bartering with judges and start drawing up a surveillance law that upholds our democratic freedoms?” she added.
Rules are “inconsistent with EU law”
The ruling found that, under the powers in the Data Retention and Investigatory Powers Act 2014 (Dripa), the access to confidential personal data such as the records of phone calls and browser history was not "restricted solely to fighting serious crime." Police and other public bodies could essentially authorise their own access to materials without further oversight.
According to the three appeal court judges, this lack of safeguards made the Act “inconsistent with EU law.”
The government said that communications data was required to fight serious and organised crime. Minister for Security and Economic Crime Ben Wallace said that the judgement related to legislation that was already out of date and would not affect the way that investigations are currently carried out.
Wallace said: “Communications data is used in the vast majority of serious and organised crime prosecutions and has been used in every major security service counter-terrorism investigation over the last decade. It is often the only way to identify paedophiles involved in online child abuse as it can be used to find where and when these horrendous crimes have taken place.”
The Home Office announced a number of safeguards in November in anticipation of the appeal court ruling going against the government. These included the removal of self-authorisation for senior police officers and a requirement for the new investigatory powers commissioner to grant approval for requests to access confidential communications data.
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