Secretary of State for the Home Department v Watson & Others  EWCA Civ 70 is a legal challenge originally brought in 2015 by David Davis MP and Tom Watson MP alongside Liberty against the Home Secretary over the introduction of the Data Retention and Investigatory Powers Act 2014 (DRIPA).
DRIPA was the predecessor to the Investigatory Powers Act 2016 and, although it was repealed in December 2016, much of its functions were incorporated into Part 4 of the Investigatory Powers Act, so pursuing this legal challenge did not become redundant after this point.
The case was appealed up to the Court of Appeal by the Home Secretary, with the court delivering its final judgment in January 2018.
|14 Jul 2014||DRIPA introduced to Parliament.|
|17 Jul 2014||DRIPA receives royal assent.|
|22 Jul 2014||Tom Watson MP and David Davis MP apply for a judicial review of the legislation, represented by Liberty.|
|1 Aug 2014||Data Retention Regulations 2014 come into force as a Statutory Instrument, to establish a framework for data collection under DRIPA.|
|10 Dec 2014||Open Rights Group and Privacy International file a submission to intervene in Watson/Davis' judicial review.|
|30 Jan 2015||Open Rights Group and Privacy International file a second submission in the case, alleging that the legislation is contrary to Article 15 of the European Union's E-Privacy Directive.|
|4 Jun 2015||Tom Watson MP and David Davis MP launch High Court challenge against DRIPA.|
|17 Jul 2015||High Court upholds challenge, finding Sections 1 and 2 of the Act to be unlawful.|
|22 Oct 2015||Court of Appeal begins hearing Home Secretary's appeal against the ruling.|
|20 Nov 2015||Court of Appeal refers the case to the CJEU.|
|29 Nov 2016||Investigatory Powers Act 2016 receives Royal Assent.|
|21 Dec 2016||European Court of Justice supports High Court judgment - ruling in joined cases C203/15 and C698/15 that DRIPA was unlawful.|
|30 Dec 2016||DRIPA sunset clause takes effect and it is repealed, pending replacement by Part 4 of the Investigatory Powers Act 2016.|
|8 Sep 2017||In proceedings brought by Privacy International, the Investigatory Powers Tribunal asks the CJEU to clarify the extent to which their judgment prohibiting indiscriminate data retention applies in a national security context.|
|30 Nov 2017||Government publishes its consultation paper on the Dec 2016 ruling in the DRIPA case. The paper considers the Government’s next steps with regard to bringing the Investigatory Powers Act into line with the DRIPA judgment:|
|30 Jan 2018||Court of Appeal delivers final judgment, ruling mass surveillance to be illegal.|
High Court Ruling
In June 2015, Tom Watson MP and David Davis MP launched a High Court challenge against DRIPA, claiming that It did not comply with the Government's obligations to safeguard citizens' rights under the ECHR and Human Rights Act 1998.
In Jul 2015, the High Court backed Davis and Watson’s argument that the lack of basic protections in the bill breached British people’s rights because it:
- Let police and public bodies grant themselves access, instead of requiring sign off from a judge or independent body.
- Did not restrict access only to preventing and detecting precisely defined “serious” crime.
The CJEU had previously issued a judgment with regard to data retention in the Digital Rights Ireland case against the EU Data Retention Directive. The CJEU had declared the directive invalid, noting that general and blanket data retention was in violation of fundamental rights. The High Court referenced this judgment, but disagreed with the idea that the court intended this to be applied to domestic data retention regimes.
Court of Appeal - Early Stages
The Court of Appeal disagreed with the High Court's analysis, and made a reference to the CJEU asking it to confirm whether or not the CJEU's previous ruling in the Digital Rights Ireland case was intended to lay down mandatory requirements of EU law applicable to all member states. It also asked the Court to confirm whether the Digital Rights Ireland judgment expanded the scope of Articles 7 and/or 8 of the EU Charter to be wider than the scope of Article 8 of the European Convention on Human Rights.
In Dec 2016, the Court of Justice of the European Union supported the High Court’s judgement – but went much further. It also ruled the regime violated people’s rights because:
- It did not provide for people to be notified after their data had been accessed.
- It did not commit to the data being kept in the European Union.
Home Office published a consultation in late Nov 2017, detailing how it would take into account the CJEU ruling in relation to the Investigatory Powers Act.
Some consultation highlights:
- The CJEU ruling requires traffic and location data to be retained or accessed only in cases of 'serious crime'. The consultation defines 'serious' as any crime which carries a potential sentence of 6 months or more. (p. 14)
- An additional provision within the above definition of 'serious crime', which ORG find to be cause for concern, is the inclusion of "any offence which involves a large number of people acting in pursuit of a common purpose" - a provision which we feel is clearly aimed at targeting political groups and protests.
- The Government did accept that allowing public bodies to 'self-authorise' their access to communications data was in breach of EU law as per the judgment, so a new body will be created - the Office for Communications Data Authorisations (OCDA) - to handle authorisation of requests. (p.18)
- The Government openly refuses to comply with the ruling's requirement that subjects who have had their data accessed and retained must be notified after investigation has concluded. (p. 20) They have also claimed separately, in meetings with the Open Rights Group, that the UK already has adequate notification regimes.
- The CJEU judgment does not allow for indiscriminate retention of communications data, only targeted retention. The Government believes that drastic changes to their retention scheme do not need to be made because the UK system is already targeted, and because the judgment's criticisms of retention were leveled at Sweden rather than the UK. Instead, the Secretary of State merely needs to consider, when serving an operator with a data retention notice, whether it would be appropriate to restrict the notice by geography, or to exclude certain groups of customers. The Government believe this will be enough to comply. (p. 14)
- The draft Code of Practice published alongside the consultation makes it clear that the Government intends to push forward with its 'Request Filter' initiative (CoP, s.11) - which it claims will help to safeguard privacy by limiting the amount of information returned when requests for data are made. Though there are concerns that this could effectively amount to a "police search engine", or something similar in nature to the NSA's XKeyscore system.
Court of Appeal - Final Judgment
After receiving the judgment of the CJEU, and after the publication of the Government's consultation in November 2017, the Court of Appeal delivered its final judgment in the case on 30 January 2018.
The judgment carried the following notable points:
- Surveillance data retained for the purposes of fighting crime should be restricted to "serious crime"; and
- Access to retained data must be approved by a court or other administrative body.
The Court also refused to rule on a number of points, citing other ongoing litigation at the time of the judgment. Namely:
- The Court refused to rule on the issue of whether the judgment of the CJEU applied to "national security", noting that this would be ruled on in an ongoing case brought by Privacy International in the Investigatory Powers Tribunal;
- The Court noted that the issue of whether collected data must be retained within the EU was also to be decided in Privacy International's Investigatory Powers Tribunal Challenge;
- The Court considered the question of whether people were eligible to be notified that they had been surveilled at a time when notification would no longer pose a risk to ongoing investigations. Again, it concluded that this would be an issue in the ongoing Privacy International case.
- Finally, the Court considered whether it was able to rule on the question of whether data retained for security purposes could only be retained in cases where a specific person or set of people could be linked to serious criminal offences and the data could be reasonably assumed to assist in the prevention of such offences. The Court determined that this issue would be addressed in Liberty's ongoing challenge against the Investigatory Powers Act.
- High Court to hear Liberty’s legal challenge to Government’s “emergency” surveillance law, Liberty, 2015-06-03
- Tory MP: why I'm taking government to court over spying, Wired, 2015-06-04
- Submission filed by Open Rights Group and Privacy International as interveners