Government surveillance regime unlawful, court rules in Tom Watson case

Further legal challenges

The court decided not to rule on a series of further challenges to DRIPA brought by Tom Watson and Liberty, opening up the way for further legal challenges to the Investigatory Powers Act in the future.

Lord David Lloyd-Jones said in the judgment that there was “considerable” uncertainty over whether DRIPA contains adequate safeguards against communications data leaving the EU.

This would be a matter for the Court of Justice of the European Union to decide, following a referral by the UK’s secret surveillance court, the Investigatory Powers Tribunal, he said.

The questions of whether government agencies are required to give notice to people when their data is accessed and retained, and whether the government is using an overly broad definition of national security to legalise access to a wider range of public data, will also be subject to further court challenges.

Liberty said it plans to raise these points in an ongoing legal action against the government over the Investigatory Powers Act.

The act allows the security services, MI5, MI6 and GCHQ, and a wide range of government bodies access to personal internet and phone communications data, if it is in the interests of national security – a definition that also includes “economic wellbeing,”, said Stoughton.

“It is hard to say how wide this exemption is, as there is so much secrecy,” she said. “There is reason to be concerned.”

The Open Rights Group, a campaigner for privacy and online free speech, urged the government to admit that its surveillance legislation is flawed and to make changes to protect the public’s fundamental rights.

“The Investigatory Powers Act carves a gaping hole in the public’s rights,” said Matthew Rice, spokesman for the Open Rights Group. “Public bodies are able to access data without proper oversight, and access that data for reasons other than fighting serious crime. These practices must stop – the courts have now confirmed it.”

The Internet Service Providers Association, which represents ISPs, said it is imperative that the government acts on the court’s ruling.

“The legislative framework in this area has long been contentious and the passage of data retention powers has been fraught with challenges over the years,” it said. “During the passing of the Investigatory Powers Act, we and others called for a legal framework that would comply with existing rights and rulings so that it would not be revisited on a regular basis.”

Liberty said the court’s decision is a signal that the government should rethink the Investigatory Powers Act, and impose limits on the way it accesses and retains data.

“This is the latest in a series of rulings that have constrained the UK’s surveillance regime,” said Stoughton. “Every time a court looks at the surveillance regime, it finds a new problem, and the government has to rewrite the Investigatory Powers Act. That is going to keep on happening because the legislation was flawed to begin with.”

Responding to the judgment, security minister Ben Wallace said communications data has been used in the vast majority of serious and organised crime prosecutions and every counter-terrorism investigation by MI5 over the past decade, and is often the only way to identify paedophiles involved in online abuse.

“This judgment relates to legislation which is no longer in force and, crucially, today's judgment does not change the way in which law enforcement agencies can detect and disrupt crimes,” he said.

Wallace said the government would continue to defend “vital” surveillance powers “which parliament agreed were necessary in 2016”, in ongoing litigation.