Open Rights Group v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby,Lord Justice Singh,Lord Justice Underhill |
| Judgment Date | 29 October 2021 |
| Neutral Citation | [2021] EWCA Civ 1573 |
| Court | Court of Appeal (Civil Division) |
| Year | 2021 |
| Docket Number | Case No: C1/2019/2726 |
The Queen on the application of
and
[2021] EWCA Civ 1573
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Singh
and
Lord Justice Warby
Case No: C1/2019/2726
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Supperstone
Royal Courts of Justice
Strand, London, WC2A 2LL
Ben Jaffey QC, Julianne Kerr Morrison and Nikolaus Grubeck (instructed by Leigh Day) for the Appellants
Sir James Eadie QC and Tristan Jones (instructed by the Treasury Solicitor) for the Respondents
The First Intervener was not represented
Christopher Knight (instructed by ICO) for the Second Intervener
Hearing date: 8 October 2021
Approved Judgment
On 26 May 2021, we allowed this appeal, holding that the “Immigration Exemption” contained in paragraph 4 of Schedule 2 to the Data Protection Act 2018 is contrary to Article 23 of the GDPR and Article 23 of the UK GDPR: [2021] EWCA Civ 800, [2021] 1 WLR 3611 (“the Main Judgment”). We did not at that stage decide what form of relief should be granted.
The claim form seeks a declaratory order, the effect of which would be to “disapply” the Immigration Exemption. But by the end of the appeal hearing it had become common ground that the issue of relief raised some sensitive and complex issues, and would need to be the subject of separate argument. So, we decided to defer a decision on that issue, inviting further submissions in the light of our reasons: see the Main Judgment [55–58].
One possibility recognised by the Court and the parties was that relief might be suspended for a period of time to allow the Government to devise and implement a legislative remedy for the deficiency we had identified. Authority for such a form of remedy can be found in the decision of the Divisional Court in R (National Council for Civil Liberties) v Secretary of State for the Home Department and another [2018] EWHC 975 (Admin), [2019] QB 481 (“ Liberty”) and in the jurisprudence of the CJEU, which contemplates the temporary suspension of the ousting effect of a rule of EU law: see La Quadrature du Net and others (Cases C-511/18, C-512/18 and C-520/18) [2021] 1 CMLR 31 (“ La Quadrature”).
We gave directions for a further hearing, with sequential service of evidence and written submissions in the meantime. The main issues for our decision are: (1) whether we have jurisdiction to suspend relief for a period of time and, if so (2) whether and, if so, to what extent and for how long we should exercise it.
The written submissions of the parties, and of the second intervener, the Information Commissioner (“ICO”), can be summarised as follows.
The Respondents' submission is that we should not grant relief disapplying the Immigration Exemption forthwith. That is unnecessary and would have a number of undesirable consequences. Instead, the Respondents should be granted a period of grace, in accordance with the principles identified in Liberty and La Quadrature. The Respondents' proposal is to remedy the position by exercising the power conferred on the Second Respondent by s 16(1) of the DPA 2018, to make regulations adding to or varying the provisions of Schedule 2. It is not controversial before us that this is, in principle, a legitimate mechanism by which to amend the law. Indeed, the submissions for the ICO had drawn attention to this power: see the Main Judgment at [54]. But the power is subject to the affirmative resolution procedure: s 16(3). And it is said that time is required to go through all the necessary steps. The form of relief proposed was a declaration that: (a) for the reasons explained in the Court's Judgment, the Immigration Exemption is incompatible with Article 23 UK GDPR, and (b) the incompatibility must be remedied within a reasonable time, by laying an appropriate statutory instrument before Parliament by 31 January 2022.
The Appellants agree that, in the light of Liberty and La Quadrature, it is permissible in a case of this kind to withhold immediate relief. But it is submitted that the power is narrow and circumscribed. Any alternative form of relief must be exceptional, temporary, and justified by overriding public interest considerations relating to a genuine and serious threat of interruption or harm to the public interest. The relief must also respect the essence of the right at issue. The Respondents' evidence falls far short of demonstrating that these conditions are satisfied. Any exception to the relief we grant should be limited in scope and in time. It would be wrong in principle to tie the end point to the laying of a draft Statutory Instrument. The Appellants' position, in written submissions, was that the Respondents should be given until 30 November 202l to bring new legislation into effect.
The ICO also agrees that the Court has power to grant relief of the kind proposed by the Respondents. Unsurprisingly, the ICO has raised no queries about the proposed methodology. It is submitted that in framing a suspended order we should seek to strike an appropriate balance between the relevant considerations of legal certainty, bearing in mind that the suspension of a remedy otherwise due is an exceptional course which must be properly justified and permitted only for a period which is strictly necessary. According to the ICO, an appropriate outcome would be to make an unqualified declaration of incompatibility, and an unqualified order suspending its effect until a reasonable, specified date. The date identified by the ICO is 31 December 2021.
In their written reply, the Respondents contended that if the Court imposes a final deadline then the dates suggested by the Appellants and the ICO were too early. If the Court imposed a final deadline for the law to come into force, the backstop date for this should be 21 April 2022.
By the time of the remedies hearing on Friday 8 October 2021, the issues had narrowed. Counsel were unanimous that, post-Brexit, the court can allow the Government time to correct and deal with an incompatibility of the kind that we have found. The Respondents' position on timing had shifted. They were now content to be given until 31 January 2022 to procure a change in the law, with liberty to apply for more time in the event of unexpected circumstances. Once this was made clear in oral submissions for the Respondent, the Appellants indicated in reply that this was acceptable. The only remaining issue as to scope was whether, as contended by the Appellants, the suspension should benefit only public authorities, with no suspension so far as the private sector was concerned. The Respondents, with the support of the ICO, resisted any such limitation.
The parties' partial agreement does not of course absolve us of the duty to make decisions on all the issues, which are not only matters of importance to those involved in and affected by this case; they also have wider significance. We had the benefit of detailed oral argument, to the excellence of which I would like to pay tribute.
At the end of the hearing, we had reached a clear conclusion. Given the importance to the parties of knowing the outcome promptly, we announced that we would make an order containing a declaration reflecting the Main Judgment, but suspending its effect entirely until 31 January 2022; the parties would have liberty to apply in relation to the duration of the suspension. We reserved our decision on the precise form of order, and our reasons. This judgment contains my reasons for joining in that decision and identifies the form of order that I consider appropriate.
The first issue: is there jurisdiction to suspend relief?
This is a question of English law, but we have only been addressed on the part of English law that consists of retained EU law. That is the legal basis for our decision. This judgment should not be read as having any wider effect.
As explained in the Main Judgment at [12–13], the GDPR no longer has direct effect as EU legislation; it has been absorbed into English law as the UK GDPR. But it retains the supremacy over other domestic instruments that it enjoyed in its capacity as an EU Regulation. That means that any conflict between the GDPR and domestic legislation (including primary legislation) must be resolved in favour of the former: the domestic legislation must be overridden, treated as invalid or, in the conventional language, disapplied. That is the sole basis on which we were able to conclude that Article 23 invalidated primary legislation in the form of the Immigration Exemption.
That said, the supremacy of the UK GDPR within our post-Brexit domestic legal order does not make it constitutionally proper for an English Court to make a quashing order in respect of primary legislation. This was not an available remedy when the UK was a Member State; but the court could and where appropriate did make a declaratory judgment or order: R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1. That is the remedy that is claimed in this case. But must the court, in such a case, inevitably make an immediately binding order? There is domestic authority to the contrary, starting before Brexit.
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