Tag Archives: European Convention on Human Rights

Liberty represents MPs David Davis and Tom Watson in legal challenge to Government’s “emergency” surveillance law

At 11.00 am this morning, Liberty announced that it will seek a Judicial Review of the Government’s ’emergency’ surveillance law on behalf of MPs David Davis and Tom Watson. The announcement comes days after the Data Retention and Investigatory Powers Act 2014 (DRIP) was – according to Liberty – “rushed through Parliament” onto the statute book.

Liberty is arguing on Davis and Watson’s behalf that the new legislation is incompatible with Article 8 of the European Convention on Human Rights (ECHR), the right to respect for private and family life, and Articles 7 and 8 of the EU Charter of Fundamental Rights relating to respect for private and family life and the protection of personal data.

Since 2009, communications data has been retained by public communications services and network providers under a 2009 EU Data Retention Directive. However, back in April the Court of Justice of the European Union (CJEU) ruled that the Directive was invalid because it was so sweeping in its interference with individual privacy rights. The judgement made clear that existing UK legislation, including the Regulation of Investigatory Powers Act 2000 (RIPA), required urgent review.

On 10 July 2014, the DRIP Bill was introduced by ministers claiming that “emergency” legislation was necessary. The Bill was privately agreed following discussions between the three main party leaders. It became law within just three days – a timescale which Liberty feels has rendered proper parliamentary scrutiny, amendment and even debate impossible.

James Welch: Liberty's legal director

James Welch: Liberty’s legal director

James Welch, legal director for Liberty, said: “It’s as ridiculous as it is offensive to introduce an “emergency” law in response to an essay crisis. The court ruling that blanket data retention breached the privacy of every man, woman and child in the UK was more than three months ago. The Government has shown contempt for both the rule of law and Parliamentary Sovereignty. This private cross-party stitch-up, rail-roaded onto the statute book inside three days, is ripe for challenge in the Courts.”

David Davis, Conservative MP for Haltemprice and Howden, added: “This Act of Parliament was driven through the House of Commons with ridiculous and unnecessary haste to meet a completely artificial emergency. As a result, Members of Parliament had no opportunity to either research it, consider it or debate it properly. The aim of this legal action is to make the Government give the House the opportunity to do what it should have been allowed to do in the first place – in other words proper, considered and effective law-making. The overall aim is to create law which both protects the security of our citizens without unnecessarily invading their privacy.”

David Davis MP

David Davis MP

Tom Watson, Labour MP for West Bromwich East, added: “The three party leaders struck a private deal to rail-road through a controversial Bill in a week. You cannot make good laws behind closed doors. The new Data Retention and Investigatory Powers Act does not answer the concerns of many that the blanket retention of personal data is a breach of fundamental rights to privacy.”

Tom Watson MP

Tom Watson MP

The Human Rights Act 1998

The Human Rights Act 1998 incorporates the ECHR into UK law. Section 3 requires that, so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.

Section 4 stipulates that in any proceedings in which a court determines whether a provision or primary legislation is compatible with a Convention right, the court may – if it’s satisfied that the provision is incompatible – make a declaration of that incompatibility.

Liberty’s clients (ie David Davis MP and Tom Watson MP) claim that Section 1 of the DRIP 2014 is incompatible with the Human Rights Act and, in particular, Article 8 of the ECHR, together with Articles 7 and 8 of the EU Charter.

The powers within Section 1 of DRIP are extraordinarily wide. In its letter before claim to the Home Secretary, Liberty argues that such powers are incompatible with Article 8 of the ECHR and/or Articles 7 and/or 8 of the EU Charter for a number of reasons, including the following:

*Communications data can provide a very intimate picture of a person’s life – who they communicated with, by what means, the time and length of the communication, where the communication took place and the frequency of the communications. As the CJEU ruling said: “Those data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them”

*Communications data retained under DRIP is subject to an extremely lax access regime – still governed by the RIPA (Communications Data) Order 2010 – allowing such data to be acquired by hundreds of public authorities

*The Act allows the Home Secretary to command, by order, the blanket retention of all communications data for 12 months – no link with the prevention or detection of serious crime is required

Via its letter before claim, Liberty has invited the Home Secretary Theresa May to concede that the Act is indeed incompatible and to publish and present a replacement Bill, in turn allowing Parliament to fulfil its proper constitutional function.

Alternatively, the Home Secretary is invited to concede that Peter Davis MP and Tom Watson MP’s claim is arguable and that a substantive hearing ought to follow.

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British Security Services held to account in open court over “blanket surveillance”

This week, Liberty is appearing at the Investigatory Powers Tribunal in its legal claim against the British Intelligence Services over what the civil liberties concern dubs “the ongoing surveillance scandal”.

The group is bringing the claim on its own behalf and on behalf of a number of its partner organisations in other countries, including the ACLU.

The Investigatory Powers Tribunal is also hearing claims brought by Privacy International and Amnesty International.

The organisations are concerned that their private communications may have been monitored under GCHQ’s electronic surveillance programme Tempora, whose existence was revealed by Edward Snowden.

Shami Chakrabarti: director of Liberty

Shami Chakrabarti: director of Liberty

They also complain that information obtained through the NSA’s Prism and Upstream programmes may have been shared with the British Intelligence Services in a way that gets round the protections provided by our legal system.

Article 8 and Article 10

James Welch, Liberty’s legal director, explained: “As legislation is introduced to paper over one crack in the crumbling surveillance state, another faces challenge. Not content with forcing service providers to keep details of our calls and browsing histories, the Government is fighting to retain the right to trawl through our communications with anyone outside and many inside the country. When will it learn that it’s neither ethical nor efficient to turn everyone into suspects?”

Liberty argues that the interference with its – and its clients’ – communications is a breach of Article 8 (the right to respect for their private life) and Article 10 (freedom of expression) of the European Convention on Human Rights.

There is no clear legal framework – within the Regulation of Investigatory Powers Act (RIPA) 2000 or otherwise – that permits Tempora’s collection and storage of such vast amounts of communications.

Liberty states that the scale of data being obtained cannot be described as either necessary or proportionate.

The preliminary hearing started on Monday 14 July and is scheduled to continue all week at Court 19 of the Rolls Building, Fetter Lane, commencing daily at 10.30 am.

The Parties in the case are Liberty, the American Civil Liberties Union, Privacy International, Amnesty International, the Canadian Civil Liberties Association, the Egyptian Initiative for Personal Rights, the Hungarian Civil Liberties Union, the Irish Council for Civil Liberties and the Legal Resources Centre (South Africa).

Liberty is represented by Matthew Ryder QC (Matrix Chambers), Eric Metcalfe (Monckton Chambers) and Edward Craven (Matrix Chambers).

Read Liberty’s Grounds of Claim

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