In a legal challenge brought by the MP Tom Watson, and supported by campaign group Liberty, the High Court ruled that a major plank of the government’s surveillance strategy is unlawful (Secretary of State for the Home Department v Watson MP & Ors [2018] EWCA Civ 70).
When Theresa May was Home Secretary, she brought before parliament the Data Retention and Investigatory Powers Act 2014, and the current case was a challenge to that law. Initial proceedings were referred to the European Court of Justice who agreed with our courts that the powers were far too extensive. This case is the final judgment from the Court of Appeal.
As a result of those early legal losses, the legislation was repealed and replaced by The Investigatory Powers Act 2016. So, given that the legislation being challenged is no longer in force is this judgment relevant?
There is a challenge about the new Act underway already, and that case will be heard later this year, but what is interesting is that the new Act contains some of the provisions now ruled to be unlawful.
The government has already indicated that it will again seek to amend the law, but it appears that the current proposals do not go far enough. If that analysis is correct, then the government will once again be forced into a corner so far as its surveillance programme is concerned.
At stake is the indiscriminate targeting of citizens, not just people suspected of criminal activity, but every day snooping on the lives of everyone to build up a database of information for future use. Fears over access to that database and how it might be used for different purposes in future, not just national security, are at the heart of objections to the government’s plans.
The current law is objectionable as it:
• did not restrict access to this data, in the context of the investigation and prosecution of crime, to the purpose of fighting serious crime.
• let police and public bodies authorise their own access, instead of subjecting access requests to prior authorisation by a court or independent body.
Some, of course, say that if you have nothing to hide, then you have nothing to fear, but campaigning group Liberty counters with this chilling observation:
“Since this legal challenge was launched in 2014, the Investigatory Powers Act has not only re-legislated for the powers found unlawful today, but gone much further.
The Act dramatically expanded powers to gather data on the entire population while maintaining the lack of safeguards that resulted in this legal challenge. It also legalised other unprecedented mass surveillance powers – including mass hacking, spying on phone calls and emails on an industrial scale and collecting huge databases containing sensitive information on millions of people.”
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