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Judges urged to rule against Government over so-called ‘snoopers’ charter’

Liberty wants new legislation introduced after ministers accepted some aspects of the Investigatory Powers Act (IPA) are ‘incompatible’ with EU law.

High Court judges have been urged to force the Government to urgently rewrite its latest mass data surveillance laws.

Liberty, the human rights campaign group, wants the court to make sure Parliament introduces new legislation by July after ministers accepted some aspects of the Investigatory Powers Act (IPA) are “incompatible” with EU law.

However the Government says it is already taking steps to amend the legislation and should be given until April next year to introduce the new rules.

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The High Court in London (Anthony Devlin/PA)

Lawyers for Liberty argued on Tuesday that the act, dubbed the snoopers’ charter by critics, violates the public’s right to privacy by allowing the storage of and access to internet data.

Martin Chamberlain QC said the data, which includes every bit of information apart from the content of a communication, could reveal which newspaper a person reads, where they shop, whether they have accessed pornography and which online dating sites they use.

He told the court: “Communications data can provide a comprehensive and intimate portrait of a person’s private life.

“It can be used to reveal the identity of a person who has whistle-blowing information to a journalist or to a watchdog such as Liberty.”

Mr Chamberlain said Liberty recognises that data retention and access could be “vital” for the detection and prevention of crime.

However, he added: “Intrusive capabilities must be balanced by appropriate limits and safeguards.”

Communications data can provide a comprehensive and intimate portrait of a person's private life. Martin Chamberlain QC, for Liberty

The court heard the Government accepts the act is inconsistent with EU law because it does not ensure data can only be retained and accessed for “fighting serious crime” in criminal investigations and there is no independent authorisation needed before data can be used.

Mr Chamberlain said the court should “disapply” the IPA in relation to those two aspects, as well as other rules on retention of internet data relating to health and finances which the Government is not defending.

He said this was necessary to “provide an effective remedy” and would give the Government until July of this year to make changes to the act so it is compatible with EU law.

Mr Chamberlain said the act has been incompatible with the law since it was introduced 14 months ago and continues to allow unlawful retention and access to citizens’ data.

He also urged the court to refer other parts of the act relating to national security and lawyer-client privilege, which the Government does not concede are in breach of EU law, to the Court of Justice of the European Union for further consideration.

In reality the law does not permit vast, intrusive collection by the state of communications data. James Eadie QC, for the Government

James Eadie QC, representing the Government, said the “vast majority” of communications data retained will never be accessed by the state because most people are not affected by police or other relevant investigations.

He added: “Liberty’s suggestion that the precautionary retention of communications data itself amounts to a significant intrusion of privacy, or that the act enables the state to assemble details of ordinary citizens’ web-browsing habits, daily movements, intimate relationships, religious views, medical conditions or newspaper preferences, is wrong.

“Accessing a person’s entire communications data history would require the most serious justification.

“In reality the law does not permit vast, intrusive collection by the state of communications data.”

Mr Eadie argued the Government already has proposals to change the IPA and any order the court makes should not take effect before April next year.

He said this would give Parliament time to agree new laws and allow for the creation of a new “fully independent authorisation regime”.

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Judges concluded Drip was inconsistent with EU law after a challenge by Tom Watson and campaigners (PA)

The case follows a ruling by the Appeal Court last month against previous surveillance rules in the Data Retention and Investigatory Powers Act (Dripa), which expired at the end of 2016.

Three senior judges concluded Dripa was “inconsistent” with European Union law following a challenge by Labour deputy leader Tom Watson and campaigners, which was supported by Liberty.

Liberty’s challenge, being heard by Lord Justice Singh and Mr Justice Holgate, has been crowdfunded by supporters who raised more than £50,000.

The hearing continues tomorrow and the judges are expected to reserve their decision.

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