R against Borders for Children (“ABC”) (by Wasi Daniju and Justin Baidoo) v The Secretary of State for Education
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 23 March 2018 |
| Neutral Citation | [2018] EWHC 920 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8/2018 |
| Date | 23 March 2018 |
[2018] EWHC 920 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
THE HONOURABLE Mr Justice Supperstone
CO/8/2018
MS S S Luh and MS E Fitzsimons (instructed by Liberty) appeared on behalf of the Claimant.
MS H Stout (instructed by the Government Legal Department) appeared on behalf of the Defendant.
By the Education (Pupil Information) (England) ( Miscellaneous Amendments) Regulations 2016, sch.1 to the 2013 Regulations was amended to insert three new categories of individual pupil information which schools are required when requested to collect and transmit to the defendant, namely: nationality, country of birth and proficiency in speaking, reading and writing in English.
The claimant contends that the systematic collection and storage of children's nationality and country of birth information is unlawful and cannot be justified, having regard to the object of data protection being to protect the fundamental right of individuals to their right to privacy.
This is a renewed application to bring these judicial review proceedings, permission having been refused on the papers by Lang J.
The first reason given by the learned judge for refusing permission was that the claimant is an unincorporated association and so it is not capable of bringing proceedings in its own name. I accept that unincorporated associations have capacity to bring judicial review proceedings. In any event, the claimant has brought this claim by two members. The defendant does not argue to the contrary.
However, I agree with the judge that this claim is out of time. Pursuant to CPR 54.5(1), a claim must be filed promptly and in any event not later than three months after the grounds to make the claim first arose. The Regulations were laid before Parliament on 27 July 2016 and came into force on 1 September 2016. The grounds to make the claim first arose at the latest in or around August 2016 when the claimant first learned about them. The claim was issued on 2 January 2018, well outside the three-month time limit.
Ms Luh, for the claimant, contends that this claim falls within a category of cases where there is a continuing breach, data being collected unlawfully pursuant to the Regulations at each seasonal interval, the last school census having taken place on 18 January 2018. However, the concept of a “continuing breach” is not relevant to when time starts to run for the purposes of CPR 54.5(1).
Ms Luh submits that this case concerns the compatibility of a regulation with the fundamental right to protection of personal data under the EU Data Protection Directive. The refusal of an application on reliance of a three-month time limit and/or promptness breaches EU law grounds of legal certainty and effectiveness.
In support of this submission, Ms Luh refers to the case of Uniplex UK Ltd v NHS Business Services Authority [2010] 2 CMLR 47. However, that case (and R (on the application of Federation of Technological Industries) v the Commissioners of Customs & Excise [2004] EWHC 254 (Admin), on which Ms Luh also relies) was concerned with the requirement for promptness. In Uniplex, the CJEU held that the “promptness” requirement was insufficiently certain, but upheld the lawfulness of the three-month time limit. EU law grounds do not affect the three-month time limit: see Hereward & Foster v Legal Services Commission [2010] EWHC 3370 (Admin) at para.62 per Burnett J, as he then was.
In the alternative, during the course of her oral submissions, for the first time, Ms Luh advanced a submission that there should be an extension of time to bring the claim. No explanation is given for the delay in the claim form or the evidence. What Ms Luh attempted to do was to advance a reason for the delay from the factual material before the court. In particular, referring to the section of the witness statement of Ms Daniju headed “ABC's campaign” (paras.24–61), Ms Luh relied upon various concessions Ms Daniju said had been made by the defendant in relation to the collection of the material under challenge. The defendant does not accept any concessions were in fact made.
In any event, I am not persuaded that any of these matters, individually or cumulatively, justify the delay that has occurred in bringing the claim. They do not, objectively assessed, amount to a good reason as to why there has been 16 months' delay in bringing these proceedings.
Ms Luh submits that there is no evidence of actual prejudice caused by the delay. Further, she submits that the claim is of substantial public importance. I cannot accept these submissions. To allow a challenge to the lawfulness of these Regulations, so long after they were made, would, in my view, plainly be detrimental to good administration. Since they came into force, the defendant and schools throughout the country have acted in reliance on the lawfulness of the Regulations in collecting data from individuals, which has led to the publication of data in the defendant's Summary Report of 7 December 2017. Moreover, the existence of a suitable alternative remedy, to which I will turn in a moment, provides an answer to Ms Luh's submission that it is in the public interest that this claim proceed. Accordingly, I refuse permission on the basis that the claim is out of time.
In any event, as I have just indicated, I am of the view that the claimant has an adequate alternative remedy.
The claimant advances four grounds of challenge: first, that the collection of children's nationality and country of birth information is not necessary to achieve a legitimate aim; second, it is not a proportionate and effective measure to achieve a stated purpose; third, no valid explicit and informed consent has been obtained for fair and lawful processing; and fourth, there are no necessary safeguards for retention. Each of these grounds of claim concern alleged breaches by the defendant of the Data Protection Act 1998.
Ms Stout for the defendant submits, and I accept, that the Data Protection Act provides in total three alternative remedies, any one of which would provide an adequate alternative remedy for the claimant. First, importantly, the Information Commissioner has power under s.40 to investigate all potential contraventions of the data protection principles, and to take action requiring rectification, blocking, erasure or destruction of data or other steps to ensure compliance. In relation to enforcement notices, Ms Luh is right to point out that the claimant would have no right of appeal to the First-tier Tribunal if the Commissioner decided that collection, storage and use of nationality and country of birth data were lawful, however, at that point, the claimant could seek judicial review of the Commissioner's decision, if so advised. As Ms Stout observes, such a course would be consistent with judicial review being a remedy of last resort.
Second, s.42 of the Act provides that a person who is “directly affected” by processing of personal data (or someone acting on that person's behalf) may request that the Commissioner consider whether it is “likely or unlikely” that the processing is compliant with the Act, and the Commissioner is required to make such an assessment in most cases.
Third, aggrieved individuals may bring private law claims under the Act, including claims to prevent unlawful processing likely to cause damage or distress for compensation and for rectification of inaccurate data. Ms Luh...
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