The High Court has found that a significant component of the government’s surveillance programme is unlawful, following a court challenge initiated by MP Tom Watson and supported by campaign organisation Liberty (Secretary of State for the Home Department v Watson MP & Ors [2018] EWCA Civ 70).

The Data Retention and Investigatory Powers Act of 2014 was introduced into parliament by Theresa May when she was Home Secretary, and the current lawsuit is a challenge to that law. The European Court of Justice was referred to the initial cases, and they agreed with our courts that the powers were far too broad. The Court of Appeal’s decision in this matter is final.

The statute was repealed and replaced by The Investigatory Powers Act 2016 as a result of those early legal setbacks. Is this decision still relevant now that the challenged legislation is no longer in effect?

A legal challenge to the new Act is already underway, and the matter will be tried later this year, but it’s worth noting that the new Act incorporates some of the elements that have recently been found unconstitutional.

The government has already stated that it will seek to change the law once more, but the current ideas appear to be insufficient. If that interpretation is right, the government will be thrown into a corner once more in terms of its surveillance programme.

At stake is the indiscriminate targeting of citizens, not just those suspected of criminal conduct, but daily prying on everyone’s activities in order to build up a database of data for future use. Opponents to the government’s plans are concerned about access to that database and how it might be used for purposes other than national security in the future.

The current law is unsatisfactory since it:

  • did not restrict access to this data, in the context of the investigation and prosecution of crime, to the purpose of fighting serious crime.
  • let police and public bodies authorise their own access, instead of subjecting access requests to prior authorisation by a court or independent body.

Some argue that if you have nothing to conceal, you have nothing to fear, however Liberty, a campaigning organisation, counters with the following unsettling observation:

“Since this legal challenge was launched in 2014, the Investigatory Powers Act has not only re-legislated for the powers found unlawful today, but gone much further.

The Act dramatically expanded powers to gather data on the entire population while maintaining the lack of safeguards that resulted in this legal challenge. It also legalised other unprecedented mass surveillance powers – including mass hacking, spying on phone calls and emails on an industrial scale and collecting huge databases containing sensitive information on millions of people.”