Liberty’s landmark surveillance case proceeds as Government admits ‘unlawful’ surveillance failures

On 8 April, the High Court approved Liberty’s application to appeal parts of a judgment handed down in July 2019 over the lawfulness of “bulk” surveillance powers.

Liberty’s application to appeal was approved on five grounds, two of which the Government conceded on.

In its application to appeal, Liberty argued the safeguards in the Snoopers’ Charter (the Investigatory Powers Act 2016) breach our privacy and free expression rights as they do not protect against the dangers of bulk powers. These allow spies to scoop up the private communications and internet data of swathes of the population, hack into our computers, phones and tablets, and create vast “personal datasets” without suspicion.

In response to preliminary legal filings, the Government admitted that it could not contest two parts of Liberty’s application to appeal. It conceded that the safeguards around the use of surveillance powers do not protect journalistic confidentiality. The Government further admitted the safeguards fail to protect the right to privacy when masses of intercepted data are searched in a way that can identify people without proper authorisation.

As well as those issues, the court found that Liberty’s other arguments must be heard at appeal, including that safeguards in the Snoopers’ Charter regarding sharing intercepted material with overseas Governments and around lawyer-client communications were inadequate. Judges also found that Liberty’s arguments over the power to create “bulk personal datasets” must also be heard at appeal.

A hearing is expected later this year.

Katy Watts, a lawyer at Liberty, said:

“We should have control over our own personal information, and we should have a Government that respects our right to privacy and our freedom of expression. But the Government has admitted it is failing these basic requirements.

“Bulk surveillance powers allow the State to collect data that can reveal a huge amount about any one of us – from our political views to our sexual orientation. These mass surveillance powers do not make us safer, they breach our privacy and undermine core pillars of our democracy.

“Our right to privacy protects all of us. It is vital that dangerously broad mass surveillance powers are reined in and the Government must create proper safeguards that protect our rights.”

In July 2019, the High Court found that parts of the Investigatory Powers Act that allow spies to collect people’s communications data in bulk were not incompatible with human rights laws.

Liberty sought to appeal that decision, but the appeal was delayed so that the case can take account of a judgment from the European Court of Human Rights that was handed down in May 2021, related to the predecessor to the Snoopers’ Charter, the Regulation of Investigatory Powers Act (RIPA). That judgment, which was the final stage of a case that began in 2013 and can be taken into account in the current case, found that bulk surveillance powers – and the safeguards in the previous surveillance regime – have breached our rights.

Liberty’s application to appeal was supported in an intervention from the National Union of Journalists.

Shamik Dutta of Bhatt Murphy, Ben Jaffey QC of Blackstone Chambers and David Heaton and Sophie Bird of Brick Court Chambers acted for Liberty.