Opinion: High Court rules DRIP legislation introduced by Liberal Democrats in government is unlawful

Last year there was widespread criticism from Liberal Democrat members  towards the parliamentary party’s support (with the honourable exception of the four Lib Dem MPs) for emergency DRIP surveillance powers.  A fair number of us warned our parliamentarians that the legislation seemingly did not comply with the European Convention on Human Rights.  In addition to the warnings that came from those of us within the party there was an open letter from leading UK internet law academic experts  and widespread criticism from civil liberties groups.

Norman Baker who was then a minister of state at the Home Office minster took to Lib Dem Voice to argue the emergency legislation was complaint with EU law. In doing so he made the choice to follow the advice of the remarkably illiberal Home Office over independent legal experts, groups like Liberty and the grass roots of the party. In the face of widespread opposition the parliamentary party decided to dig in and defended its actions.

Having dug themselves into this hole it fell upon the Conservative MP David Davis and Labour MP Tom Watson to launch a judicial review of the legislation. The case focused particular on the CJEU’s interpretation of Articles 7 and 8 of the Charter of Fundamental Rights of the EU. The good news for those of us who oppose these emergency surveillance powers is that today the High Court has ruled that their judicial review has succeed and that that the DRIP legislation is unlawful. You can read the full judgements here and an excerpt of the conclusion is copied below

The application for judicial review succeeds. The Claimants are entitled to a declaration that section 1 of the Data Retention and Investigatory Powers Act 2014 is inconsistent with European Union law in so far as:

a) it does not lay down clear and precise rules providing for access to and use of communications data retained pursuant to a retention notice to be strictly restricted to the purpose of preventing and detecting precisely defined serious offences or of conducting criminal prosecutions relating to such offences; and

b) access to the data is not made dependent on a prior review by a court or an independent administrative body whose decision limits access to and use of the data to what is strictly necessary for the purpose of attaining the objective

When in power people have to make difficult choices, I get that. I get also that there is a constant temptation to sacrifice principle for short term influence. No doubt Liberal Democrats in government thought at the time it was necessary to make sacrifices in principle to have some influence on the DRIP bill. It’s easy to be critical when you’re not in the driving seat.

What I don’t get though is how our parliamentarians failed to understand that sometimes though you need to stick by your principles uphold things like Human Rights and refuse to compromise. If there was one lesson I think Liberal Democrats need to learn from the coalitions years is that there are things you can compromise over and other matters of principle you simply can’t.  After all power without principle isn’t power worth having.

* Cllr James Baker is the leader of Calderdale Liberal Democrats and the Campaigns and grassroots activism manager for the Open Rights Group.

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  • It was pretty obvious to those of us familiar with these sort of things, that this law was going to be found to be unlawful. The government (particularly the Home Office, I think) does this all the time. They bring in laws (particularly regulations) and ‘guidance’ which are pretty obviously unlawful but allow the executive to get its way for a few years till the inevitable (or not 🙂 ) legal challenge comes in when they either say ‘oh dear’ and bring in an alternative set of rules, or they use it to have a political rant against the Human Rights Act/ the EC.

    I believe that the present three month rule on UK and other EC people leaving the country going to EC countries to work, denying them benefit in the UK when they return after being abroad more than 3 months is almost certainly unlawful under the Treaties as it creates a barrier to freedom of movement (I can leave my home ion Manchester to try and set up a business opportunity or take a job in Edinburgh and still get JSA if it all goes pear shaped as a ‘safety blanket’. I cannot do the same by going to Copenhagen).

  • Totally agree with this analysis and conclusions – we have got to learn from this including listening to members and activists who do have some wisdom amongst them!

  • It is very unusual for any law to be found unlawful. My understanding is that this is only the third time it’s ever happened.

    That just emphasises how bad a decision it was to support it.

  • Tony Dawson 18th Jul '15 - 4:43pm

    Richard, you are right about the rareness of a statute being found unlawful. But regulations and guidance as well as executive actions purporting to be in line with laws and regulations are found to be unlawful all of the time.

    Oh… it…..

    …all makes work for the barristers to o! 🙁

  • Daniel Levy 18th Jul '15 - 6:11pm

    So some legislation that was going to have to be replaced shortly may now have to be replaced sooner. The only thing this ruling has actually done is given the Tories an excuse to fast track the Snoopers Charter. At least with DRIP we were assured time to campaign for a better replacement. Now we may not even get that.

    The members and activists with some wisdom among them were the ones who backed DRIP. They, at least, knew how to pick their battles.

  • Richard Underhill 18th Jul '15 - 7:44pm

    What is the legality of the UK’s signature to the Statelessness Convention being overturned by secondary legislation called the Immigration Rules, during a Labour government?

  • @Daniel Levy: And what was the realistic chance of us getting a “better replacement” under this majority Tory government. And as for the Snoopers Charter, that also has a good chance of being found unlawful. If the Tories aer looking for an excuse to fast-track it, surely that reflects on the Tories. It is not the job of the judiciary to consider the politics of their decisions. Or are you one of those people who think government should be above the law?

  • I’d like to know whether the law really has any effect on the day to day realities of state surveillance. When the High Court passed its ruling did the staff at GCHQ Bude, etc, just down tools or is it business as usual right now? Does the law actually have practical application if you’re never going to check the listening posts to see if they’re conforming with it? To me, this is just legal cover in case someone ever complains via official channels, I doubt it has very much effect on operations sadly. Hard to believe this was only a year ago.

  • Daniel Levy 25th Jul '15 - 8:00pm

    @Alex Macfie, Sorry, I’ll try to explain myself more clearly. The point about this case isn’t that the legal judgement was wrong, it’s that the case wasn’t actually worth fighting. It wouldn’t have been worth fighting regardless of the election result and we shouldn’t be calling upon our MPs to copy the political incompetence of David Davis and Tom Watson.

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