Bar Council and Law Society heave a sigh of relief at DRIPA ruling

Surveillance legislation mandating mass retention of communications has been ruled illegal by the High Court.

The Data Retention and Investigatory Powers Act (DRIPA) was found to be inconsistent with EU law in a judicial challenge brought by David Davis, the Conservative former shadow home secretary, and Tom Watson, the Labour backbencher.

DRIPA was introduced as emergency legislation in four days in 2014 and was allowed only one day of parliamentary scrutiny.

The Law Society, who intervened in the case, said, at the time of its passage, that the legislation was an affront to parliamentary sovereignty and rule of law, first in failing to provide time for parliamentary scrutiny and second in overruling a considered judgment of European Court of Justice.

President of the Law Society, Jonathan Smithers, was pleased the body's concerns had been heard by the High Court.

'We have seen a growing number of instances where data and surveillance powers have been seriously and repeatedly overused,' he said. 'This has included police using secret methods to expose journalistic sources and to monitor journalists' activities and it has also been revealed that the intelligence agencies have been spying on conversations between lawyers and their clients.'

The Bar Council similarly welcomed the ruling, with chairman of the Bar Alistair MacDonald saying DRIPA and the Regulation of Investigatory Powers Act (RIPA) gave dubious legal authority to security services to spy on conversations between lawyers and their clients, and to collect associated communications data. This, he said, was a breach of professional privilege.

'New surveillance laws, expected this autumn, must make it clear that spying on conversations between lawyers and their clients is unlawful,' he said.

Legislation

DRIPA allowed the government to 'require a public telecommunications operator to retain relevant communications data if the Secretary of State considers that the requirement is necessary.'

The High Court ruling, however, said DRIPA failed to lay down clear rules for accessing retained data limited to defined serious offences and subject to judicial or independent oversight.

Still, Smithers criticised existing data and surveillance rules as 'complex and confusing' and which had been laid down in numerous, badly drafted pieces of legislation, codes and guidance.

Esther Nimmo is an editorial assistant at Solicitors Journal

esther.nimmo@solicitorsjournal.co.uk @EstherNimmo