Ruling: Davis and Others vs The Secretary of State for the Home Department

Davis and Others vs The Secretary of State for the Home Department was a judicial challenge by the MPs David Davis and Tom Watson to the Data Retention and Investigatory Powers Act 2014 (DRIPA). The case was heard in the High Court of Justice, which ruled in favour of the claimants, rendering DRIPA unlawful.

In its ruling, the Court found that section 1 DRIPA was inconsistent with EU law since it “does not lay down clear and precise rules providing for access to and use of [retained] communications data” and “access to the data is not made dependent on a prior review by a court or an independent administrative body whose decision limits access to and use of the data to what is strictly necessary.” [1]

In remedy, the Court “disapplied” DRIPA, although suspended its order until March 31, 2016, allowing government to propose – and Parliament to pass – modified legislation which complies with EU law. This suspension is significant given the sunset clause in DRIPA which requires, in any case, replacement legislation in 2016. The Home Office, in response to the verdict, has indicated an intention to appeal.

In its judgement, the High Court refers often to the Court of Justice of the EU (CJEU) case referred to as ‘Digital Rights Ireland‘, in which the Data Retention Directive was declared invalid. The CJEU stated that “It entails a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data, without that interference being limited to what is strictly necessary.” It’s judgement is based on an infringement of Articles 7 and 8 of the Charter of Fundamental Rights of the EU, which provide for privacy and data protection. While the CJEU case did not concern the bulk interception of content, the High Court felt it is “arguable that its principles (including in relation to prior independent authorisation) should apply in that area with at least the same force.”

Interestingly, the High Court reiterates the point made by the European Courts of Human Rights in the case Liberty v UK (2009) that the “[r]etention for the purpose of possible access is in itself an interference with rights under Articles 7 and 8 of the Charter and Article 8 of the ECHR.” The High Court then stresses the need for minimum safe guards to be expressed in legislation, limiting the purpose of communications data collection to serious offences (leaving the definition to Member States), and requiring prior review by courts or administrative bodies. However, the High Court limits the necessity of prior review to access of communications data, not the retention thereof.

[1] High Court ruling in Davis and Others vs The Secretary of State for the Home Department, paragraph 114, accessible at https://www.judiciary.gov.uk/wp-content/uploads/2015/07/davis_judgment.pdf.