Advocate General: Lack of safeguards in Government surveillance law breaches people's fundamental rights

19 July 2016

  • Advocate General gives opinion following challenge to Government surveillance law brought by MP Tom Watson, represented by Liberty
  • If Court of Justice judges agree, Investigatory Powers Bill – which seeks to re-legislate for and expand data retention powers – will require significant amendment

Powers letting police and public bodies grant themselves access to people’s communications data with no external oversight or suspicion of serious criminality breach human rights law, a senior judge at the Court of Justice of the European Union (CJEU) has concluded.

If judges agree with the Advocate General’s opinion – published today following a challenge by MP Tom Watson, represented by Liberty – the decision could stop the Government’s fatally flawed Investigatory Powers Bill in its tracks and mark a watershed moment in the fight for a genuinely effective, lawful and targeted system of surveillance that keeps British people safe and respects their rights.

The challenge was initially brought by Mr Watson and fellow MP David Davis, who has recently been appointed a Government minister. As a minister bound by the principle of collective responsibility, he now cannot bring a claim against the Government challenging Government policy.

In his opinion, Advocate General Henrik Saugmandsgaard Øe concludes that:

  • Although broad data retention may be lawful in some circumstances, domestic courts must “rigorously verify” that there is no other less intrusive measure – such as targeted retention – that can be as effective in fighting serious crime.
  •  Access to retained data must be strictly restricted to the purpose of preventing and detecting precisely defined serious crime.
  • Access to retained data must be subject to prior authorisation, carried out by a court or independent body.

A panel of judges will now review the opinion – which can be read here – and are expected to give their verdict in coming weeks. The Court typically follows the Advocate General’s conclusions.

James Welch, Legal Director for Liberty, said: “The Investigatory Powers Bill – the much-trumpeted legacy of our new Prime Minister’s time at the Home Office – goes much further than the law condemned today.

“This ‘Snoopers’ Charter’ will vastly expand blanket data-gathering powers, while failing to provide even the basic safeguards outlined by the Advocate General. Dozens of public bodies will be able to grant themselves access to our most revealing personal data – including our web browsing histories – with no need for suspicion of criminality.”

“Today’s opinion is a clear message to our blinkered Government – your proposed new law breaches our human rights.”

Liberty has campaigned for an overhaul of UK surveillance laws for years, but believes proposals in the Investigatory Powers Bill are unclear, unworkable and potentially unlawful, and will make us less safe and less free. The Government has failed to make the case for the speculative mass surveillance powers it contains.

Liberty believes a dynamic, targeted system – with surveillance conducted for tightly defined reasons – would more effectively aid the investigation and prevention of serious crime, while respecting British people’s fundamental right to privacy and maintaining online security.*

About the case

Mr Watson’s challenge to the Data Retention and Investigatory Powers Act (DRIPA) – the surveillance law rushed through Parliament in 2014 – was heard by the CJEU in April, alongside a Swedish case challenging the lawfulness of bulk communications data retention.

DRIPA allows the Home Secretary to force communications companies to keep communications data for 12 months. It catches the records of everybody in the UK – including confidential or privileged correspondence of MPs, journalists, lawyers and doctors.

This data is subject to an extremely lax access regime and can be obtained by hundreds of public bodies – many of which can authorise access themselves for an expansive range of reasons that have nothing to do with the investigation of serious crime.

In July 2015, the High Court ruled these failings meant DRIPA breached people’s fundamental rights to privacy and protection of data. The Government appealed, and Court of Appeal judges sought clarification from the CJEU in December.

Impact on the new Snoopers’ Charter

If the CJEU judges’ verdict follows the conclusion of the Advocate General and finds the scheme of self-authorised access for a range of non-crime purposes breaches human rights law, significant sections of the Investigatory Powers Bill will be called into question.

The legislation – currently being debated by Lords in Parliament – not only seeks to re-legislate for DRIPA, but goes much further. Despite the Home Secretary’s claim that it creates a “world-leading” oversight regime, it would dramatically expand the mass data-gathering powers condemned in today’s opinion with no attempt to remedy the lack of safeguards raised by the Advocate General and UK High Court.

The Bill would force service providers to generate and hand over every person’s internet connection records (ICRs) – a euphemism for their entire browsing history – regardless of criminality or suspicion. This information can then be accessed by a large number of organisations and Government agencies, including HMRC, the Food Standards Agency and the Department for Work and Pensions, with no need for suspicion of criminality or sign-off from a judge or other independent official.

It also seeks to legalise several other bulk powers – including hacking, interception and acquisition of vast databases containing sensitive information on millions of innocent people.

Contact: Liberty press office on 020 7378 3656, 07973 831 128 or pressoffice@liberty-human-rights.org.uk.

* Liberty has proposed a number of amendments to the Investigatory Powers Bill:

  • In the House of Lords Committee Stage, Lord Paddick and Baroness Hamwee (Lib Dems) tabled amendments that would require reasonable suspicion of crime before communications data may be retained or accessed (amendments 121 and 153). They also tabled a new clause (amendment 112) that would specifically prohibit public authorities from accessing ‘internet connection records’.
  • In the House of Commons Report Stage, the SNP tabled amendments that would require a public authority to seek a warrant from a Judicial Commissioner in order to access communications data, rather than undertake a system of internal authorisation (amendments 320-323, 327), and only where there is reasonable suspicion of crime (amendment 325).
  • The SNP and Lib Dems also tabled a series of amendments that would require judicial authorisation, rather than a Secretary of State’s authorisation, to order the retention of communications data (amendments 328-330, 332-348, 350, 470-1), and only where there is reasonable suspicion of crime (amendment 331).
  • The Labour front bench also supported amendments that raised the threshold for access to communications data to serious crime (amendments 289-291).
  • In the House of Commons Public Bill Committee, Labour and the SNP tabled amendments to require judicial warrants, rather than internal authorisations, for the retention of and access to communications data – and only in the interests of national security or for the purpose of serious crime or preventing death, rather than the multitude of reasons such as ‘preventing disorder’ and ‘public health’ currently in the Bill.