Two MPs, David Davis (Conservative) and Tom Watson (Labour), with human rights advocacy group Liberty, have won a challenge in the High Court against the UK’s data retention law (DRIPA). The ruling finds against the UK law on several grounds, including incompatibility with the right to privacy, and a lack of clarity in the rules applying to access requests. Since the current rules allow a very wide range of public authorities to request communications data, and to do so without independent approval, there is a clear implication that the UK’s approach to data retention fails the proportionality test.
It’s worth stressing just how exceptional it is for members of parliament to challenge primary legislation in court, let alone to win. After all, the first place primary legislation should be challenged is in the parliament to which they have been elected. But DRIPA’s passage through parliament was not normal. It was rushed through parliament with a single day’s debate – essentially ensuring that it could not receive proper parliamentary scrutiny.
The government tried to explained away this haste by claiming that the bill was “emergency legislation”, brought in because the prior legislation had, in turn, been ruled non-compliant with EU law. That ruling was itself delivered well in advance of the presentation of DRIPA to the house: there was no excuse for the UK government to have failed to foresee that requirement.
According to the Security Minister, John Hayes, opposition to the government’s data retention plans comes from a “paranoid liberal bourgeoisie”, intent on hamstringing law enforcement even if it means criminals and terrorists run amok. Of course, the accusation of paranoia might carry more weight if every “paranoid” prediction about the government’s use and abuse of surveillance powers hadn’t been accurately pointed out by the late Caspar Bowden and amply proved by the Snowden disclosures.
Mr Hayes says the government ‘disagrees absolutely’ with this judgment and fully intends to appeal against it. In other words, despite having had DRIPA and its predecessor struck down, the government’s view is that no change of course is needed, and they can keep the same data retention powers if they go on saying that’s what they want.
There’s an old quip, isn’t there, which defines insanity as repeating the same actions while expecting a different outcome. Far be it from me to accuse the current government of insanity, but I have to wonder how rational it is to expect an appeal to succeed.