Court finds government spying law unlawful

The Court of Appeal has ruled that a spying law rushed through Parliament by Theresa May as Home Secretary in 2014 was unlawful.

Although that law has since been replaced, the Government’s new investigatory powers will now be under the spotlight after three judges criticised the use of the UK’s digital surveillance apparatus to investigate non-serious crimes.

The judgment handed down on Monday also stated that it was not lawful for the authorities to sign off on their own access to the information that ISPs are required to store on their customers’ internet use.

Campaigners have warned about the abuse of anti-terror laws by authorities in the UK for many years, with councils using their powers to investigate dog fouling, fly-tipping and breaches of the smoking ban.

Even in cases of serious crime, typographical errors in the investigatory process have led to innocent people being arrested as paedophiles – with one family having their children taken away.

One such law – the Data Retention and Investigatory Powers Act 2014 (DRIPA) – was rushed through Parliament as “emergency” legislation in 2014, with MPs given only one day to debate it.

It was challenged by Labour MP Tom Watson and Conservative MP David Davis alongside campaign group Liberty and eventually found unlawful by the High Court and the EU Court of Justice (CJEU).

Although one of the founding members of the action, Mr Davis took his name off the challenge after being named Brexit Secretary.

At the time of the CJEU, the Home Office said it was “disappointed with the judgment” which established that the UK’s data retention laws – which now force ISPs to collect and store everybody’s internet activity for an entire year – were too broad.

The Court of Appeal has found that DRIPA was in breach of British people’s rights because it did not sufficiently restrict access to the data that is collected about them, and allowed it to be used to investigate non-serious crime.

The court also found that the law did not protect the public by requiring the police and public bodies to get a warrant to access the data, but instead were allowed to sign off on this access themselves.

The GCHQ listening post in Cheltenham
Serious crime and national security investigations were found lawful

DRIPA expired at the end of 2016 and was replaced by the Investigatory Powers Act (IP Act), which has now begun to come into force.

Liberty is also challenging the IP Act in a case to be heard before the High Court later this year, as the British legal system attempts to establish how civil liberties can be respected in regards to the public’s activities online.

Martha Spurrier, the director of Liberty, said: “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?”

The Home Office is currently consulting on changing the IP Act.

Security minister Ben Wallace told Sky News: “Communications data is used in the vast majority of serious and organised crime prosecutions and has been used in every major Security Service counter-terrorism investigation over the last decade.

“It is often the only way to identify paedophiles involved in online child abuse as it can be used to find where and when these horrendous crimes have taken place.

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

“We had already announced that we would be amending the Investigatory Powers Act to address the two areas in which the Court of Appeal has found against the previous data retention regime.

“We welcome the fact that the Court of Appeal ruling does not undermine the regime and we will continue to defend these vital powers, which Parliament agreed were necessary in 2016, in ongoing litigation.”

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