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MPs launch 'snooping' law challenge

Published 04/06/2015

The judicial review action is being brought by Tory former shadow home secretary David Davis (pictured) and Labour backbencher Tom Watson
The judicial review action is being brought by Tory former shadow home secretary David Davis (pictured) and Labour backbencher Tom Watson

Two MPs have launched a High Court challenge against Government legislation which gives police and security services access to people's phone and internet records on the grounds that it is "incompatible with EU law".

Conservative former shadow home secretary David Davis and Labour backbencher Tom Watson and other campaigners are arguing the Data Retention and Investigatory Powers Act (Dripa) does not contain sufficient safeguards to protect the public.

The Act was rushed through Parliament in three days in July last year with the backing of all three major party leaders.

Dinah Rose QC, appearing for both MPs who sat in front of her at London's High Court, said: "The claimants I represent are both distinguished Members of Parliament who are not very often to be seen sitting next to each other on the same front bench."

Ms Rose said that, as MPs, both men had particular reason to seek to protect the confidentiality of their contacts with constituents and other members of the public - including whistleblowers - who might approach them with sensitive information.

Both fully appreciated the importance of communications data in relation to the fight against crime and terrorism, and nothing she would say in court should be taken to detract from that.

In a legal challenge backed by Liberty, Ms Rose said: "Their concern is that this legislation doesn't contain the necessary minimum safeguards to protect against the risk of arbitrary, disproportionate or abusive retention and use of personal data, and for that reason it breaches the fundamental right to privacy."

The QC is asking Lord Justice Bean and Mr Justice Collins to rule that Dripa is incompatible with Article 8 of the European Convention on Human Rights and with the EU Charter of Fundamental Rights relating to respect for private and family life and protection of personal data.

The hearing is expected to last two days.

Ms Rose referred to the fact that Dripa had been enacted "at very great speed" in July 2014.

Mr Justice Collins observed that there were "plenty of examples" of speedy legislation that had "frequently led to disastrous results".

When the legislation was first introduced by the Coalition government, Prime Minister David Cameron and the then Deputy Prime Minister Nick Clegg said the accelerated passage of Dripa through Parliament was necessary because of an emergency created by a ruling of the Court of Justice of the European Union (CJEU).

The grand chamber of the CJEU had declared in a case referred to as "Digital Rights Ireland" that the EU Directive allowing data retention was incompatible with the right to privacy in Articles 7 and 8 of the EU Charter.

Mr Cameron and Mr Clegg said Dripa was necessary because, without it, the CJEU ruling would deny police and security services access to vital data about phone and email communications.

They insisted Dripa would simply maintain existing powers, which required communications companies to retain data for 12 months for possible investigation, but did not allow police or security agencies to access the content of calls or emails without a warrant.

But Ms Rose argued in court that Dripa "contains the same flaws" as those identified in the Directive overturned by the CJEU.

The powers in section 1 of Dripa were "too wide and do not contain sufficient protection against arbitrary conduct", said Ms Rose.

Submissions are also being made to the court on behalf of two other individual applicants for judicial review, Peter Brice and Geoffrey Lewis, and organisations including Open Rights Group and Privacy International.

Written submissions have also been lodged by the Law Society, which is concerned about the effect of the legislation on legal and professional privilege.

The application for judicial review is being opposed by a legal team led by James Eadie QC acting on behalf of Home Secretary Theresa May.

They contend that Dripa contains the necessary safeguards and is compatible with EU law.

They say there are also other, long-standing safeguards to be found in the Regulation of Investigatory Powers Act 2000 (Ripa).

Before the hearing Emma Norton, legal officer for Liberty, said in a statement: "The executive dominance of Parliament in rushing through this legislation - using a wholly fabricated "emergency" - made a mockery of parliamentary sovereignty and the rule of law, and showed a staggering disregard for the entire population's right to privacy."

Ms Norton said it was thanks to the Human Rights Act, which enshrines the European human rights convention into domestic law, that it was possible to challenge the Government's actions - "the same Government which now seeks to axe that very piece of legislation and, by doing so, curb the British people's ability to do so in future."

Liberty says it does not dispute the role of communications data in solving and preventing crime, "but does not believe that justifies the costly and lengthy mass retention of records of those who are not involved in such investigations".

It is calling for prior judicial authorisation and a requirement that data is only retained as part of investigations into serious crime and to prevent death and injury.

Mr Watson said in a statement: "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."

Mr Davis said outside court the Government had declared a "bogus emergency really to push (Dripa) through the house in one day".

It allowed access to data "for not very serious crimes or not even crimes at all".

Mr Davis said: "Those are very serious constitution issues. They go right to the heart of the privacy of every Briton and they're not the sort of thing that's traditional in this country."

He said there was "no choice" but to challenge the law in court.

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