R the National Council for Civil Liberties (liberty) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Singh
Judgment Date27 April 2018
Neutral Citation[2018] EWHC 975 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/1052/2017
Date27 April 2018
Between:
The Queen on the Application of the National Council for Civil Liberties (liberty)
Claimant
and
(1) Secretary of State for the Home Department
(2) Secretary of State for Foreign and Commonwealth Affairs
Defendants

[2018] EWHC 975 (Admin)

Before:

Lord Justice Singh

and

Mr Justice Holgate

Case No: CO/1052/2017

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Martin Chamberlain QC, Ben Jaffey QC and David Heaton (instructed by Bhatt Murphy) for the Claimant

James Eadie QC, Gerry Facenna QC, Julian Milford and Michael Armitage (instructed by the Government Legal Department) for the Defendants

Hearing dates: 27–28 February 2018

Judgment Approved

Lord Justice Singh

Introduction

1

This is the judgment of the Court, to which both of its members have contributed.

2

This claim for judicial review concerns the compatibility of the Investigatory Powers Act 2016 (“the IPA” or “the 2016 Act”) with both European Union (“EU”) law and the European Convention on Human Rights (“ECHR”). For present purposes the Court has only been concerned with part of the claim and not the whole of it: the hearing before us concerned the challenge to the compatibility of Part 4 of the 2016 Act with EU law.

3

In particular this case concerns the power given to the Secretary of State by section 87(1) of the IPA to issue “retention notices” to telecommunications operators requiring the retention of data. It is important to note that this power relates to retention and not access to such data. It is also important to note that, although the power affects a wide range of private information to do with communications, it does not concern the content of such communications, such as emails or text messages.

4

The IPA received Royal Assent on 29 November 2016. Part 4 was brought into force (although not in its entirety) on 30 December 2016 and substantially re-enacts the Data Retention and Investigatory Powers Act 2014 (“DRIPA”).

5

The present claim for judicial review was issued on 28 February 2017.

6

On 6 April 2017 the Defendants filed their summary grounds of resistance.

7

On 14 June 2017 Jeremy Baker J granted permission to challenge Part 4 of the IPA; stayed the rest of the claim; and required the Defendants to state by 5 July 2017 whether they conceded the challenge to Part 4.

8

On 7 July 2017 the Defendants conceded that Part 4 of the IPA is, in its current form, inconsistent with the requirements of EU law in two respects.

9

However, Part 4 has not yet been amended. It is proposed by the Government that amendments will be made by secondary legislation, under section 2(2) of the European Communities Act 1972, as amended, (“the ECA” or “the 1972 Act”), to be subject to the affirmative resolution procedure in Parliament. The Claimant contends that, in the meantime, unlawful retention of, and access to, communications data therefore continues.

10

The Claimant invites this Court to make an “order of disapplication” in respect of Part 4 insofar as it is conceded to be incompatible with EU law or is undefended. However, it further submits that the order of disapplication should be suspended until 31 July 2018. It submits that this would give the Government and Parliament a reasonable opportunity to introduce legislation which is compatible with EU law. The arguments in this regard evolved to some extent during the course of the hearing before us and we shall have to return to them later in this judgment.

Background

11

The origin of the problem in the present case can be traced back to Directive 2006/24/EC (the “Data Retention Directive”). That Directive was held by the Court of Justice of the European Union (“CJEU”) to be invalid as a matter of EU law in Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources (Case C-293/12) EU:C:2014:238; [2015] QB 127.

12

In the United Kingdom the Data Retention Directive had been given effect by the Data Protection Regulations 2009. Because of the perceived invalidity of those Regulations Parliament acted swiftly to permit certain retention to continue to take place by enacting the DRIPA in 2014.

13

Section 1 of the DRIPA was the subject of challenge in the courts. That challenge succeeded before the Divisional Court (Bean LJ and Collins J): R (Davies and Watson) v Secretary of State for the Home Department [2015] EWHC 2092 (Admin); [2016] 1 CMLR 13 (“ Watson DC”).

14

That decision was appealed by the Secretary of State. The Court of Appeal decided to make a reference to the CJEU: [2015] EWCA Civ 1185; [2016] 1 CMLR 48 (“ Watson CA 2015”).

15

That reference was considered on an expedited basis by the CJEU and heard together with a reference which had been made by a Swedish Court in Tele2 Sverige AB v Post-och telestyrelsen (Case C-203/15). 1

16

The CJEU gave its judgment in those cases on 21 December 2016: EU:C:2016:970 (“ Watson CJEU”).

17

The Court of Appeal then resumed its consideration of the Watson case and, after a hearing which took place on 8 December 2017, gave judgment on 30 January 2018: [2018] EWCA Civ 70 (“ Watson CA 2018”). Although by that time the DRIPA had been repealed, the Court of Appeal granted a declaration that it was incompatible with EU law in two respects.

18

In the main judgment, which was given by Lord Lloyd-Jones, the Court confirmed that the two inconsistencies with EU law which are clear are that, in the area of criminal justice:

(1) access to retained data is not limited to the purpose of combating “serious crime”; and

(2) access to retained data is not subject to prior review by a court or an independent administrative body.

19

The Court of Appeal made a declaration that the DRIPA was incompatible with EU law in those two respects.

Material Provisions of the IPA

20

Section 61(7) of the IPA, which appears in Part 3, sets out the following purposes for obtaining communications data:

“(7) It is necessary to obtain communications data for a purpose falling within this subsection if it is necessary to obtain the data —

(a) in the interests of national security,

(b) for the purpose of preventing or detecting crime 2 or of preventing disorder,

(c) in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security,

(d) in the interests of public safety,

(e) for the purpose of protecting public health,

(f) for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department,

(g) for the purpose of preventing death or injury or any damage to a person's physical or mental health, or of mitigating any injury or damage to a person's physical or mental health,

(h) to assist investigations into alleged miscarriages of justice,

(i) where a person (“P”) has died or is unable to identify themselves because of a physical or mental condition —

(i) to assist in identifying P, or

(ii) to obtain information about P's next of kin or other persons connected with P or about the reason for P's death or condition, or

(j) for the purpose of exercising functions relating to —

(i) the regulation of financial services and markets, or

(ii) financial stability.”

21

Part 4 of the IPA is headed “Retention of Communications Data”. Section 87(1) provides that:

“The Secretary of State may, by notice (a “retention notice”) and subject as follows, require a telecommunications operator to retain relevant communications data if —

(a) the Secretary of State considers that the requirement is necessary and proportionate for one or more of the purposes falling within paragraphs to (j) of section 61(7) (purposes for which communications data may be obtained), and

(b) the decision to give the notice has been approved by a Judicial Commissioner.” 3

22

In Part 4 “relevant communications data” has the following meaning, according to section 87(11):

“In this Part ‘relevant communications data’ means communications data which may be used to identify, or assist in identifying, any of the following —

(a) the sender or recipient of a communication (whether or not a person),

(b) the time or duration of a communication,

(c) the type, method or pattern, or fact, of communication,

(d) the telecommunication system (or any part of it) from, to or through which, or by means of which, a communication is or may be transmitted, or

(e) the location of any such system,

and this expression therefore includes, in particular, internet connection records.”

23

Although this covers a wide range of private information, it is important to note that it does not include the content of communications, for example emails or text messages.

Relevant Provisions in the EU Charter of Fundamental Rights

24

Article 6(1) of the Treaty on European Union provides that the EU Charter of Fundamental Rights shall have “the same legal value” as the Treaties.

25

Article 7 of the Charter provides that:

“Everyone has the right to respect for his or her private and family life, home and communications.”

26

Article 8 concerns protection of personal data and provides that:

“1. Everyone has the right to the protection of personal data concerning him or her.

2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

3. Compliance with these rules shall be subject to control by an independent authority.”

27

Article 11 concerns freedom of expression and information. It provides that:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas...

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