Government’s data retention and access regime for communications’ data declared unlawful

17 Jul 2015

In a decision today (17 July 2015) the Divisional Court (Bean LJ and Collins J) has held that the Data Retention and Investigatory Powers Act 2014 (‘DRIPA’) is inconsistent with EU Law. The claimants, Peter Brice and Geoffrey Lewis, were represented by a legal team including Azeem Suterwalla, instructed by Stuart Luke of Bhatia Best Solicitors Ltd. Their claims were heard together with those of David Davis and Tom Watson MPs, represented by Liberty. The Secretary of State for the Home Department was represented by a team including Daniel Beard QC.

The claimants brought their claims as they were concerned with the width of the powers to retain and gain access to their data on a number of grounds, including confidentiality of communications with solicitors and, in respect of Mr Davis and Mr Watson, concerns about the confidentiality of communications to and from constituents.

The claimants challenged the validity of section 1 of DRIPA and the Regulations made under it as being contrary to EU law, as set down in the decision of the CJEU in Digital Rights Ireland v Minister for Communications, Marine and Natural Resources and others – ‘DRI’ ([2015] QB 127). The provisions allow for the wide-scale retention of communications data (data providing information as to who was communicating; when; from where and with whom – but not including the content of a communication). S.1 DRIPA also incorporates provisions relating to access of that data as set out in s. 22 of the Regulation of Investigation Powers Act (‘RIPA’).

DRIPA had been passed in 2014, on an expedited basis, following the decision of the CJEU in DRI. The CJEU had held that Directive 2006/24/EC – on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks – was invalid. Directive 2006/24/EC had sought to harmonise the communication data retention arrangements across the EU. In DRI the CJEU found that the Directive was contrary to Articles 7 and 8 of the Charter of Fundamental Freedoms.

Before the Divisional Court the claimants argued that the provisions of DRIPA and the secondary legislation were directly at odds with the reasoning and decision in DRI. The Secretary of State argued that the decision in DRI was not to be interpreted as setting down mandatory requirements for the retention and access regime for data in member states.

The Divisional Court rejected the Secretary of State’s arguments and also that the reasoning and effect of DRI were unclear such that a preliminary reference should be sought. The Judges held that the ratio of DRI was that legislation establishing a general retention regime for communications data infringed Articles 7 and 8 of the EU Charter unless it was accompanied by an access regime (laid down at national level) which provided adequate safeguards for those rights. As such an access regime, consistent with the reasoning in DRI, had not been put in place by DRIPA, section 1 was contrary to EU law.

The Divisional Court has granted the Secretary of State permission to appeal to the Court of Appeal.

The Judgment is available here David Davis and others -v- Secretary of State for the Home Department.