Status: UK Court of Appeal judgment delivered Jan 2018.
In January 2018, the Court of Appeal delivered judgment in a case regarding the Government's "Snooper's Charter" provisions, found in the Data Retention and Investigatory Powers Act 2014, and in the Investigatory Powers Act 2016.
This page offers a jargon-free overview of this legal challenge. For more details, please see this wiki page.
In 2014, MPs David Davis and Tom Watson brought a legal challenge requesting a judicial review of the Data Retention and Investigatory Powers Act 2014 (DRIPA). In requesting a judicial review, they intended to ask the court to order a judge to review the lawfulness of the provisions of the act.
DRIPA was an act which aimed to give authorisation to much of the surveillance activities of GCHQ and other intelligence services. Up until this act those activities had no legal justification.
Although DRIPA expired at the end of December 2016, much of the wording of DRIPA was incorporated into Part 4 of the Investigatory Powers Act 2016 (IPA), which is currently in force. In particular, DRIPA’s provisions allowing for the mass retention of communications data are very similar to those in the IPA. A court decision ruling such provisions unlawful would apply to the IPA and to future legislation.
Davis and Watson launched their legal challenge in July 2014, and ORG joined the case as interveners along with Privacy International a few months later. Both ORG and PI have been involved in proceedings since then.
Initially, the High Court agreed with Davis and Watson, ruling Sections 1 and 2 of the act to be unlawful. The Government immediately appealed against this decision, taking the case to the Court of Appeal.
The Court of Appeal disagreed with the High Court’s ruling and asked the Court of Justice of the European Union (CJEU) to confirm whether the judgment that the CJEU had delivered in a previous case should also be applied to the challenge against DRIPA.
In December 2016, the CJEU delivered a damning blow for the UK Government, ruling that mass surveillance was incompatible with EU law. It outlined a number of steps that the Government would need to take before such a surveillance regime could be considered lawful.
In January 2018, the Court of Appeal handed down their final judgment in the case, with the following notable points:
The court also refused to rule on a number of points which it noted were the subject of ongoing litigation at the time of the judgment. Namely:
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