UK High Court rules in favour of spy agencies

Trevor Johnson

The mass surveillance of the UK population has been legitimised by the High Court in a ruling against a suit brought by Liberty, the civil rights organisation. Liberty sought changes to the Investigatory Powers Act (IPA, known as the Snoopers Charter) to reduce the ability of the secret services to carry out mass surveillance.

The ruling last month by Lord Justice Singh and Mr Justice Holgate rejected the challenge by Liberty.

Since the introduction of the IPA, the UK has already become the surveillance capital of the world’s developed countries. It is now legal for state agents to hack into large numbers of electronic devices, without any grounds for suspicion, on the say-so of judges (given the title of Judicial Commissioners).

Liberty, supported by the National Union of Journalists, argued that such “bulk powers” were incompatible with European human rights law, due to the lack of adequate safeguards against abuse of powers to access the private data of innocent people.

In a preliminary hearing, Liberty stated that documents disclosed to it by the government showed that MI5 has engaged in “extraordinary and persistent illegality” in the way it retains personal data obtained under the IPA.

Lord Justice Singh and Justice Holgate dismissed the claim, ruling that “the totality of the suite of interlocking safeguards” meant the Act did not breach human rights law. The judges added, “We have reached the conclusion that the safeguards in IPA are sufficient to prevent the risk of abuse of discretionary power and the Act is therefore not incompatible with the European Convention on Human Rights on the ground that it does not comply with the concept of law.”

In June, Liberty’s barrister, Martin Chamberlain QC, outlined the scale of surveillance the IPA allows. It “provides for a wide expansion of ‘bulk’ secret surveillance powers,” which “permit the interception or obtaining, processing, retention and examination of the private information of very large numbers of people—in some cases, the whole population.

“They also permit serious invasions of journalistic and watchdog organisations’ materials and lawyer-client communication.”

Over the course of the hearing, MI5 said it had even lost control of how it stored the mass surveillance data it had collected. The intelligence agency admitted that there were “ungoverned spaces” on its computers in which it was not sure what was stored.

MI5 kept its illegal behaviour secret for three years, meaning that it has never complied with the meagre restrictions applied to it in the IPA. During that period, it applied for—and received—authority to carry out an undisclosed number of warrants for mass surveillance. The judges referred to this in their final ruling but without describing it as illegal, quoting a summary that MI5 had “inadequate control over where data is stored; [REDACTED]; and the deletion processes which applied to it.”

It was revealed in court that the spy agencies may collect, store and use data related to communications between journalists and their sources, with (in the words of the challenge to the IPA by Liberty) “an absence of effective safeguards relating to material which was subject to legal professional privilege.”

The judges claim that so long as this is not the primary aim of the mass surveillance, it is to be considered acceptable—as if MI5 would admit that its motives were not honourable!