The Data Retention and Investigatory Powers Act 2014 was rushed through parliament by the coalition government last July

Two MPs – the Conservative David Davis and Labour’s Tom Watson – have joined forces for a combined challenge against emergency surveillance legislation introduced by the coalition last year.

Their high court claim aims to overturn powers created by the Data Retention and Investigatory Powers Act 2014 (Dripa) which was rushed through parliament last July.

Dinah Rose QC, appearing for both MPs at London’s high court, said: “The claimants I represent are both distinguished members of parliament who are not very often to be seen sitting next to each other on the same front bench.”



Both MPs, she said, had a particular need to protect the confidentiality of their contacts with constituents and other members of the public – including whistleblowers – who might approach them with sensitive information. Both appreciated the importance of communications data in relation to the fight against crime and terrorism.

However, Rose continued: “Their concern is that this legislation doesn’t contain the necessary minimum safeguards to protect against the risk of arbitrary, disproportionate or abusive retention and use of personal data, and for that reason it breaches the fundamental right to privacy.”

Dripa contains the same flaws as those identified in an EU directive on data retention that was overturned by the European court of justice (ECJ) last year in the case of Digital Rights Ireland, she told Lord Justice Bean and Mr Justice Collins.

During Rose’s submission, Collins said that there were plenty of examples of speedy legislation that had “frequently led to disastrous results”.

In the legal challenge, which is backed by the human rights organisation Liberty, the MPs argue that the legislation is incompatible with Article 8 of the European convention on human rights, the right to respect for private and family life, and Articles 7 and 8 of the EU charter of fundamental rights, respect for private and family life and protection of personal data.

The MPs complain that use of communications data is not limited to cases involving serious crime, that individual notices of data retention are kept secret and that no provision is made for those under obligation of professional secrecy, in particular lawyers and journalists. Nor, they argue, are there adequate safeguards against communications data leaving the European Union.

The prime minister, David Cameron, and the then deputy prime minister, Nick Clegg, said last year that the acceleration of Dripa through parliament was necessary because of an emergency created by a ruling in April last year by the ECJ, which they said would have the effect of denying police and security services access to vital data about phone and email communications.

They insisted the act would simply maintain existing powers, which required communications companies to retain data for 12 months for possible investigation, but did not allow police or security agencies to access the content of calls or emails without a warrant.

According to the Interception of Communications Commissioner’s Office, the court was told, there were 517,236 notices and authorisations for communications data issued by public authorities last year plus a further 55,346 urgent oral authorisations. Each authorisation may cover numerous individuals.

Emma Norton, legal officer for Liberty, said in a statement: “The executive dominance of parliament in rushing through this legislation – using a wholly fabricated ‘emergency’ – made a mockery of parliamentary sovereignty and the rule of law, and showed a staggering disregard for the entire population’s right to privacy.

“It is thanks to the Human Rights Act that we are able to challenge the government’s actions – the same government which now seeks to axe that very piece of legislation and, by doing so, curb the British people’s ability to do so in future.”

Liberty said it did not dispute the role of communications data in solving and preventing crime, “but does not believe that justifies the costly and lengthy mass retention of records of those who are not involved in such investigations”.

It is calling for prior judicial authorisation and a requirement that data is only retained as part of investigations into serious crime and to prevent death and injury. The Law Society, Privacy International and the Open Rights Group have all intervened in the case.



In a prepared statement, Watson said: “The government’s decision to use emergency powers to enable it to spy on citizens shows the rights of the individual need to be strengthened to ensure the state can’t act with impunity.

“Even MPs are powerless to prevent such powers being enacted. The Human Rights Act allows us to challenge those powers in the courts but the Tory government is intent on tearing up the act and doing away with the limited legal protection it affords. It is vital that we fight for it to be retained.”

Outside the court, Davis said the government had declared a “bogus emergency really to push [Dripa] through the house in one day”, providing official access to data “for not very serious crimes or not even crimes at all”.

He added: “Those are very serious constitution issues. They go right to the heart of the privacy of every Briton and they’re not the sort of thing that’s traditional in this country.” There was no choice, he said, but to challenge the law in court.

The hearing will continue on Friday. Judgment is expected to be reserved.

