The challenge to DRIPA brought by David Davis and Tom Watson was discussed in court today, as the government sought to refer key questions to the EU courts.
Last year, Tom Watson MP and David Davis MP representing Liberty, brought judicial review proceedings to challenge the Data Retention and Investigatory Powers Act (DRIPA). Earlier this year, ORG and PI were granted permission by court to intervene and made points about European law. Initially focusing on a question of compatibility with the European Convention on Human Rights (ECHR), the proceedings now concentrate on DRIPA's conformity with EU law, particularly Article 15 of the ePrivacy Directive.
Generally, the ePrivacy Directive provides for the individual right to confidentiality, erasure and anonymity of one's communication data. Article 15 sets out an exception, whereby Member States can restrict those rights when “necessary, appropriate and proportionate” to safeguard, among others: national security, defence and public security. ORG and PI highlighted in our interveners' submission that the Courts of Justice of the European Union (CJEU) in Digital Rights Ireland (DRI) had already set out the requirements that domestic law must follow in order to comply with Article 15.
Since then however, the government had requested for a reference from the CJEU to clarify how the DRI decision affects UK law. A hearing was held at the Royal Courts of Justice on Thursday morning to determine if the request for reference should indeed be granted.
The government claimed that the CJEU's decision in DRI was in relation to a different legal context, as it was made in reference to the Charter of Fundamental Rights of the EU. On the other hand, the current case tests DRIPA's compatibility with the ECHR or ePrivacy Directive.
Liberty opposed the government's request for a reference, concerned that a reference from the CJEU would only delay the judicial review proceedings. They contend that the relevant principles of EU law are already clear and have been fully considered by the CJEU in DRI. The court agreed and rejected the reference request. A draft judgment is expected to be issued next week.