The Snoopers Charter judicial review case which was launched by Liberty is due to be heard on the 27th & 28th February 2018 by the Administrative Court.
Predecessor Legislation Ruled Unlawful By The Court of Appeal
Following a hearing on the 8th December 2017, the Court of Appeal handed down its Judgment on the legality of the Snoopers Charter Mark 1 (known as the Data Retention and Investigatory Powers Act 2014 (DRIPA)) on the 30th January 2018. DRIPA (the Snoopers Charter Mark 1) was repealed on the 30th December 2016, as it was replaced by the current Snoopers Charter – the Snoopers Charter Mark 2 (known as the Investigatory Powers Act 2016). In its Judgment, the Court of Appeal ruled that DRIPA (the Snoopers Charter Mark 1) was “inconsistent with EU Law” (given the European Court of Justice’s (ECJ) ruling in December 2016) and therefore unlawful, as access to the public’s private and confidential data was not restricted to the investigation of serious crimes, and the police and others were permitted to authorise their own access to the data without any adequate oversight, such as “prior review by a court or independent administrative authority“.
This ruling has devastating consequences for the Snoopers Charter Mark 2, as the underlying basis upon which the Snoopers Charter Mark 1 has been declared unlawful, effectively renders the Snoopers Charter Mark 2 illegal. This is because the latter replicated and then expanded upon the provisions set out in the former. The case that was before the Court of Appeal was brought by Tom Watson, the Labour’s Party’s deputy leader, who was assisted by the civil rights group, Liberty. The Director of Liberty, Martha Spurrier, stated: “Yet again a UK court has ruled the Government’s extreme mass surveillance regime unlawful. This judgment tells ministers in crystal clear terms that they are breaching the public’s human rights. The latest incarnation of the Snoopers’ Charter, the Investigatory Powers Act, must be changed. No politician is above the law. When will the Government stop bartering with judges and start drawing up a surveillance law that upholds our democratic freedoms?” Tom Watson stated: “This legislation was flawed from the start. It was rushed through Parliament just before recess without proper parliamentary scrutiny. The Government must now bring forward changes to the Investigatory Powers Act to ensure that hundreds of thousands of people, many of whom are innocent victims or witnesses to crime, are protected by a system of independent approval for access to communications data. I’m proud to have played my part in safeguarding citizen’s fundamental rights.”
The Government attempted to defends its position by pointing out that the Court of Appeal’s ruling only applies to the Snoopers Charter Mark 1, and that so called “safeguards” that the Government announced last November were sufficient to address any problems with the Snoopers Charter Mark 2. These so called safeguards included supposedly removing the power of self-authorising by transferring decision making to a new quango called the ‘Office for Communications Data Authorisation’, and by purportedly restricting access to data to the investigation of serious crimes. However, as we pointed out in this article, these concessions went no where near far enough. Indeed, Liberty’s senior advocacy officer, Silkie Carlo, called the concessions “half-baked” and “window dressing“. For one thing, the Government’s promise to restrict access to data to the investigation of serious crimes was highly misleading, as serious crimes are normally defined as crimes that are punishable by a prison sentence of a least 3 years. However, the Government defined them in their announcement of these concessions as crimes punishable by a prison sentence of at least 6 months. This piece of sophistry would enable bodies such as local council’s to continue to snoop into matters outside of serious crimes. Furthermore, these so called concessions would not end the practice of self-authorisation by the 600+ public bodies who are able to access data, such as local councils. This is because there is a get out clause which allows self-authorisation to continue, where there is a so called “validly established urgency” – a concept that has been deliberately left undefined. Furthermore, the oversight powers to be provided to the ‘Office for Communications Data Authorisation’ are so limited, that it will be engaged in nothing more than a rubber stamping exercise, with absolutely no oversight involved or proper consideration given to the applications they receive.
The Snoopers Charter Judicial Review
As the Court of Appeals decision was confined to the Snoopers Charter Part 1, the Snoopers Charter judicial review proceedings that Liberty launched in February 2017 into the Snoopers Charter Part 2 continue. This Snoopers Charter judicial review case is due to be heard by the Administrative Court on the 27th & 28th February 2018.
ECJ Due To Rule On National Security Issue
The Snoopers Charter judicial review case is not the only Snoopers Charter case due to be heard shortly. When the ECJ delivered its ruling in December 2016, the Government tried to argue that the ruling did not apply to areas of national security. The question as to whether or not it is legal in relation to national security matters was then addressed by the Investigatory Powers Tribunal (IPT), who ruled that the ECJ would need to specifically determine the issue. Hence, the ECJ is due to rule on that issue in the near future.