DRIPA 2014 s1 declared unlawful

In a decision of great potential importance, the Divisional Court (a Lord Justice and High Court Judge sitting together) today declared section 1 of DRIPA, an Act of Parliament passed in 2014, to contravene the EU Charter of Fundamental Rights as it was interpreted in the Digital Rights Ireland judgment of April 2014.  Digital Rights Ireland was a judgment not of the European Court of Human Rights (the court of the Council of Europe) but of the Grand Chamber of the Court of Justice of the EU.

Digital Rights Ireland¬†declared invalid the Data Retention Directive of 2006, an EU measure which had been promoted by the UK and which required all Member States to retain telecommunications data for periods of between 6 and 24 months.¬† DRIPA (enacted¬†under urgent procedures¬†in July 2014, in only four days) was¬†the UK’s¬†reaction to Digital Rights Ireland.¬† Its purpose was¬†to provide a statutory basis, replacing the now-invalid Directive, for the requirement that service providers in the UK retain certain categories of data (e.g. sender/recipient, date/time/duration of communication, but not content or web browsing history) for 12 months.¬† Today’s Divisional Court judgment applied the Digital Rights Ireland principles to DRIPA, “disapplying” the Act of Parliament to the extent that it failed to respect the EU Charter of Fundamental Rights.

These links are to the Davis Watson Judgment and the Order of the court (which neatly summarises what it was doing).

A fuller legal background to this dispute is in my report A Question of Trust, at 1.4 and 5.63 to 5.79.  The utility of communications data to law enforcement, which is very great and growing, is explained at 9.21-9.32.

DRIPA was found wanting, when measured against the EU Charter of Fundamental Rights as interpreted in Digital Rights Ireland, insofar as:

  • access to and use of communications data is permitted for purposes other than the prevention and detection of serious offences, or the conduct of criminal prosecutions relating to such offences; and
  • access to the data is not made dependent on a prior review by a court or independent administrative body whose decision limits access to and use of the data to what is strictly necessary.

Appreciating the serious consequences of its ruling, the Administrative Court suspended its order till 31 March 2016 (thus giving Parliament an opportunity to remedy the position) and granted permission to appeal.

The ruling echoed decisions already made by national courts in the Netherlands, Belgium. Austria, Slovenia and Romania, which have themselves recently struck down national data retention laws in obedience to Digital Rights Ireland (Judgment, para 105).  In the equivalent Swedish proceedings, the national court asked the EU court for its ruling on a disputed point of law.  The Divisional Court declined to follow suit, despite an application by the Government that it should do so (Judgment, paras 101-113).

The judgment of the Divisional Court is a striking illustration of a well-established principle: that national courts may be required to “disapply” even¬†Acts of Parliament¬†where¬†they contravene directly applicable EU law – in this case, the Charter of Fundamental Rights.¬† That is a consequence of the supremacy of EU law, first declared by the EU court in 1964 and given statutory force in the UK by the European Communities Act 1972.¬†¬† The Divisional Court loyally applied EU law as required¬†by that Act,¬† notwithstanding harsh¬†criticism for¬†the “quite extraordinary” failure of the EU Court to mention one of its own previous judgments on the same Directive (Judgment para 87; cf. also para 82).

If not successfully appealed,¬†the judgment¬†will require change to existing practices for accessing communications data (which I had already recommended¬†should be¬†subject in¬†some categories of case to a higher degree of independent authorisation: see A Question of Trust, Recommendations 65,¬†67-71).¬† Indeed¬†it may point to¬†broader-reaching¬†change than I had recommended, speaking of the need for approval in all cases by “a judge or official wholly independent of the force or body making the application” (Judgment, para 98).¬† This throws into doubt the adequacy of the existing system for approval and authorisation by a designated person within the police force or public authority which seeks communications data.¬† Some of the practical constraints in this area are illustrated at 9.24(a)(b) of A Question of Trust.

The¬†judgment may also be of relevance to the current debate over whether there should be judicial or ministerial authorisation of interception warrants (which were not the subject of the Davis/Watson case, but which relate to the content of communications and may thus be considered more intrusive than the communications data at stake in that case).¬† Change in this respect was recommended both in A Question of Trust (Recommendation 22), and¬†in this week’s RUSI report, A Democratic Licence to Operate.¬† My reflections on this point in A Question of Trust, 5.79, were reproduced by the Divisional Court at para 72 of its judgment.

The judgment is of no direct relevance to the old Communications Data Bill (inappropriately dubbed “Snooper’s Charter”), which would have required further categories of data to be retained by service providers, including data¬†from which¬†web browsing history could have been traced.¬† But it does underline the need for¬†a legally sound and¬†evidence-based case, if this idea is to be pursued in the future: A Question of Trust, 14.23-14.38.

Should remedial legislation be necessary before March 2016, the timing of the Government’s plans for wide-ranging reform in this area will also be affected.¬† DRIPA contains a “sunset clause” under which it was due to remain in force until the end of 2016.¬† Other parts of DRIPA (e.g. its provisions on extraterritorial effects of warrants) will be unaffected by the Divisional Court’s disapplication of section 1, even after March 2016.

It remains to be seen whether the Government will appeal and, if so, how quickly that appeal will be heard.

UPDATE: The appeal was heard on 22-23 October 2015, and judgment handed down on 20 November.  I posted on the judgment of the Court of Appeal here.