R: and Others v Minister for the Cabinet Office and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson |
| Judgment Date | 13 July 2012 |
| Neutral Citation | [2012] EWHC 1943 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 July 2012 |
| Docket Number | Case No: CO/6919/12095/2011 |
[2012] EWHC 1943 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
The Honourable Mr Justice Beatson
Case No: CO/6919/12095/2011
Richard Drabble QC and Tariq Khan (instructed by JM Wilson Solicitors LLP) for the First Claimant
Ramby de Mello, Abid Mahmood and Tony Muman (instructed by Fountain Solicitors) for the Second Claimant
George Peretz (instructed by The Treasury Solicitor) for the Defendants
Hearing dates: 21 and 22 June 2012
I. Introduction
Every decade since 1801, householders in England and Wales have been required to complete a form for a national census. It is (see section 8 of the Census Act 1920) a criminal offence not to do so. On 27 March 2011, householders were required to complete a form for the 2011 census. It was the first carried out by the second defendant, the Statistics Board ("the Board"), also known as the UK Statistics Authority, established by the Statistics and Registration Act 2007 ("the 2007 Act").
The claimants seek a declaration that section 39(4)(f) of the 2007 Act is incompatible with Article 8 of the European Convention on Human Rights. Section 39(4)(f) permits disclosure by the Board of personal information and sensitive personal information provided to it in the 2011 census where the disclosure "is made for the purposes of a criminal investigation or criminal proceedings (whether or not in the United Kingdom)". Article 8 provides that there shall be no interference by a public authority with a person's right to respect for his private and family life except (Article 8(2)) "such as is in accordance with the law and necessary in a democratic society in the interests of national security, public safety…for the prevention of disorder or crime…or for the protection of the rights and freedoms of others". The second claimant also challenges the compatibility of section 39(4)(f) with EU Council Directive 95/46, the Data Protection Directive. That Directive was implemented in the United Kingdom by the Data Protection Act 1998 ("the DPA 1998").
Permission was given to the first claimant by His Honour Judge Cooke on 22 September 2011, and, in the absence of objection by the defendants to permission on the same basis, to the second claimant by Mr Justice Bean on 9 February 2012. Mr Justice Bean linked the two cases.
The information required on the 2011 census form includes personal data and sensitive personal data (as defined in sections 1(1) and 2 of the DPA 1998) about the householder and others in the property on the relevant day. Personal data broadly means data relating to a living individual who can be identified. The categories of sensitive personal data required on the census form are; information about individuals' racial or ethnic origins, their religious and other beliefs, and their physical and mental health.
Section 39(1) of the 2007 Act provides that personal information held by the Board must not be disclosed by any member or employee of the Board, or any other person who has received it directly or indirectly from the Board. Section 39(9) provides that a person who discloses such information in breach of sub-section (1) is guilty of a criminal offence. The records of censuses conducted under the 1920 Act remain closed for 100 years, and are protected from release to the public for the whole of that period. Section 39(4) of the 2007 Act exempts certain disclosures from the prohibition in section 39(1), so that disclosures authorised by section 39(4) are not criminal offences.
These proceedings, as I have stated, are concerned with the exemption to the prohibition on disclosure in section 39(1) in section 39(4)(f). The other exemptions from it are disclosures:- (a) required or permitted by any enactment; (b) required by a Community obligation; (c) necessary to enable or to assist the Board to exercise any of its functions; (d) already lawfully made available to the public; (e) in pursuance of an order of the court; (h) with the consent of the person to whom it refers; and (i) to an approved researcher. (The letters refer to the relevant subsections of section 39(4)).
II. The claimants
Mohammed Ali, the first claimant, who lives with his wife and children in Coventry, completed and returned a census form. He is concerned that the personal and sensitive information he provided on it might, as a result of section 39(4)(f), be transferred abroad in support of a foreign criminal investigation, perhaps for a relatively minor offence. SJ, the second claimant, is a national of Afghanistan who has been granted refugee status in this country. He refused to complete a census form because of concerns that personal details which he was asked to provide on the form might be disclosed to external agencies, including the Afghan authorities.
SJ stated that he is particularly concerned about the disclosure of data to prosecuting and investigating authorities in the United States, either by employees of the Board, or by employees of companies, including Lockheed Martin UK, to which the Board outsourced parts of the census operation. This concern was said to arise because of the provisions of United States law, in particular the Patriot Act, enacted in 2001. It is said on his behalf that the Patriot Act imposes obligations on United States organisations, and through them non-United States companies, to provide to the United States authorities records and information held outside the United States.
III. The evidence
The evidence before me in support of the first claimant consists of the statement of truth by Mr Sharma, of JM Wilson Solicitors LLP, the first claimant's solicitors, that the facts stated in the N461 claim form are true. The claim form contains a 23 page document over the names of Mr de Mello and Mr Khan of counsel, in which the factual and legal submissions are put together. There is also a statement of Mr Sharma dated 19 June 2012, to which an additional document is exhibited.
The evidence in support of the second claimant consists of witness statements by him dated 8 December 2011 and 11 June 2012, and a witness statement of Michael Bates, a trainee solicitor at the Birmingham Law Centre, dated 11 June 2012. Additionally, the claimants put before the court three statements by Mr Nigel Simons, another person who refused to complete a census form and has also challenged the legality of section 39(4)(f) in CO/3979/2012. The first two of these witness statements are unsigned and undated. The third is dated 25 April 2012. It was agreed by Mr Peretz that the court should see these de bene esse. Since they contain matters of fact and submission which are contentious concerning the position of third parties who acquire census information because part of the census operation has been outsourced to them, the position of their employees and the effect of United States legislation, in particular the Patriot Act, it was also agreed that I should make no findings based on them.
The evidence on behalf of the defendant consists of a witness statement of Sir Michael Scholar KCB, the then Chair of the Statistics Board, dated 18 November 2011, and that of Ian Cope, Deputy Director, National Accounts and Methods Division at the Office of National Statistics, dated 21 June 2012.
IV. The Article 8 submissions summarised
At the heart of the claimants' case on Article 8 are three submissions. The first is that, because census information is provided under compulsion in the form of a criminal sanction, particular weight needs to be given to the protection of its confidentiality, but neither the 2007 Act nor the DPA 1998 do so. The second is that the absence of criteria for disclosure mean that the regime does not constitute a clear, transparent and sufficiently predictable body of law and thus does not satisfy the requirement in Article 8(2) that any disclosure be "in accordance with the law". The third, and related submission, is that the absence of such criteria means there is no adequate way of assessing whether any such disclosure that is being considered or has been made would be or is proportionate.
The claimants' written submissions maintain there is incompatibility with Article 8 because there is no provision for advance notification to a person whose data is held by the Board (a "data subject") of a request for disclosure and an opportunity for the data subject to challenge disclosure, and there are no guidelines as to when and how disclosure will be made, for example by reference to the seriousness of the criminal offence in question. It is also submitted, in particular on behalf of the second claimant, that there is no safeguard as to what use may be made of personal and sensitive personal data disclosed by the Board to other authorities in the United Kingdom or the authorities in another State which has requested disclosure.
The defendants' position is that they fully understand and share the importance attached by the claimants and many other people to maintaining the confidentiality of personal information contained in or derived from census returns. They, however, maintain that the appropriate protection is to be found in the DPA 1998, the Human Rights Act 1998, and the Board's published policy. In relation to the Human Rights Act, they rely on the fact that, by section 6, it is unlawful for the Board or the court as public...
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