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How far does the controversial new Data Retention and Investigatory Powers Act 2014 go? Graham Smith , partner at Bird & Bird LLP and expert in internet law considers the new provisions and changes to the existing law.
What is the context of DRIPA 2014 and what does it seek to achieve?
The immediate spur for the legislation was the decision of the EU Court of Justice (CJEU) decision on 8 April 2014 in the Digital Rights Ireland case (Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources C-293/12,  All ER (D) 66 (Apr)), invalidating the EU Data Retention Directive 2006/24/EC (the Directive) on grounds of non-compliance with the EU Charter of Fundamental Rights and Liberties. The Directive was implemented in the UK by the Data Retention (EC Directive) Regulations 2009, SI 2009/859 (the Regulations). As secondary legislation under the European Communities Act 1972 those regulations were vulnerable to judicial review. The government decided to replace them with new primary legislation. It also took the opportunity to make amendments to RIPA 2000. It pushed both through Parliament as emergency legislation, going from first reading to Royal Assent in the space of four days. DRIPA 2014 is subject to a sunset clause, repealing it at the end of 2016.
How successful do you think DRIPA 2014 will be in achieving its aims?
The government has succeeded in obtaining new primary legislation. If the aim was to put an end to litigation challenges, that has not succeeded. Liberty has announced that MPs David Davis and Tom Watson will launch a judicial review challenging the data retention aspect of DRIPA 2014.
How effectively does DRIPA 2014 address the CJEU’s specific grounds for invalidating the Directive?
The legislation does not purport to address fully every separate ground identified by the CJEU. Various documents issued by the government claim only to address the CJEU judgment ‘where po
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