Imogen Proud, pupil barrister
The Court of Appeal recently handed down judgment in an appeal concerning the Data Retention and Investigatory Powers Act 2014 (“DRIPA”). This piece of coalition government emergency legislation, which received royal assent on 17 July 2014, was challenged by MPs David Davis and Tom Watson, represented by Liberty. The judicial review concerned the Home Secretary’s powers to order the retention of communications data under section 1 of the Act. The Home Secretary appealed against the judgment of the Divisional Court ( EWHC 2092 (Admin)), which found section 1 of DRIPA to be contrary to the CJEU’s judgment in Joined Cases C/293/12 and C/594/12 Digital Rights Ireland Ltd and Seitlinger and Others (“Digital Rights Ireland”). The Divisional Court’s order disapplied section 1 with effect from March 2016. The Court of Appeal accepted, on a provisional basis, the Home Secretary’s argument that Digital Rights Ireland did not lay down mandatory requirements applicable to all Member States’ domestic data retention regimes, contrary to the Divisional Court’s interpretation. The Court of Appeal has decided to refer questions to the CJEU concerning the meaning of the Digital Rights Ireland judgment.
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