High Court judges rule DRIPA incompatible with EU law

A challenge brought by MPs Tom Watson and David Davis found that sections 1 and 2 of the Data Retention and Investigatory Powers Act 2014 (DRIPA) were incompatible with the British public’s right to respect for private life and communications and to protection of personal data under Articles 7 and 8 of the EU Charter of Fundamental Rights.

The government has been told it must pass new legislation that will come into effect before next March.

The MPs accused the government of imposing laws which let the security services and police spy on people without the necessary safeguards.

Counsel for the applicants asked the judges to rule that DRIPA was incompatible with article 8 of the European Convention on Human Rights (ECHR) as well as the EU Charter of Fundamental Rights’s provisions for protection of personal data and family life.

In particular, the MPs complained use of communications data was not restricted to cases dealing with serious crime; that notices of data retention were held in secret and that there were no specific provisions for professionals such as lawyers and journalists respecting their obligations of professional confidentiality.

The judgment today of Lord Justice Bean and Mr Justice Collins follows a hearing before them in June.

At the hearing counsel for the MPs, Dinah Rose QC, said the legislation was pushed through last July “with enormous speed and hardly any scrutiny”.

She also 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.”

Richard Drabble QC, for two other applicants seeking judicial review, Geoffrey Lewis and Peter Brice, said there were “fundamental legal reasons why the regime must fall”.

James Eadie QC, for the government, said the provisions – in combination with those of the Regulation of Investigatory Powers Act 2000 (RIPA) – gave adequate safeguards and made the scheme compliant with EU law.

In their judgment the judges said their order should be put on hold until the end of March next year in order “to give parliament the opportunity to put matters right”.

Mr Watson said:“It’s a year to the day since DRIPA received royal assent.

“Good governance is about allowing the legislature the room to make law. In this case it didn’t happen.

“Good opposition is about holding governments to account and that didn’t happen either.

“So we find ourselves in a position where the courts have had to say to parliament go back and start again.

“In his final speech in parliament on this bill last year, David Davis warned that this legislation would be junk in a year and it is.”

Mr Davis said: “The government gave parliament one day to pass this legislation.

“This court has given the government nine months to sort it out.”