Secretary of State for the Home Department v Tom Watson MP
| Jurisdiction | England & Wales |
| Judge | Lord Lloyd-Jones,Sir Geoffrey Vos,Lord Justice Patten |
| Judgment Date | 30 January 2018 |
| Neutral Citation | [2018] EWCA Civ 70 |
| Docket Number | Case No: C1/2015/2612 & 2613 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 January 2018 |
— and —
[2018] EWCA Civ 70
Sir Geoffrey Vos, CHANCELLOR OF THE HIGH COURT
Lord Justice Patten
and
Lord Lloyd Jones
Case No: C1/2015/2612 & 2613
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, DIVISIONAL COURT
LORD JUSTICE BEAN AND MR JUSTICE COLLINS
Cases No. CO/3655/2014; CO/3667/2014; CO/3794/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
James Eadie QC, Gerry Facenna QC and Michael Armitage (instructed by Government Legal Department) for the Appellant
Ben Jaffey QC and Iain Steele (instructed by Liberty) for the First Respondent
Richard Drabble QC, Ramby De Mello and Azeem Suterwalla (instructed by Bhatia Best Solicitors) for the Second and Third Respondents
Jessica Simor QC and Ravi Mehta (instructed by Deighton Pierce Glynn) for the First and Second Interveners
Hearing date: 8 December 2017
On 20 November 2015 this court gave judgment in these proceedings ( [2015] EWCA Civ 1185) referring preliminary issues to the Court of Justice to the European Union (“CJEU”). We refer to that judgment for the history of the proceedings and the issues in the domestic proceedings. The principal purpose of the reference was to obtain clarification of the judgment of the CJEU in Joined Cases C-293/12 and C-594/12 Digital Rights Ireland Limited v Minister for Communications, Marine and Natural Resources & Others and Seitlinger and Others delivered on 8 April 2014 (“Digital Rights Ireland Limited”). We referred the following questions.
“1. Does the judgment of the Court of Justice in Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger, ECLI:EU:C:2014:238 (“ Digital Rights Ireland”) (including, in particular, paras 60–62 thereof) lay down mandatory requirements of EU law applicable to a Member State's domestic regime governing access to data retained in accordance with national legislation, in order to comply with Article 7 and 8 of the EU Charter (“the EU Charter”)?
2. Does the judgment of the Court of Justice in Digital Rights Ireland expand the scope of Articles 7 and/or 8 of the EU Charter beyond that of Article 8 of the European Convention on Human Rights (“ECHR”) as established in the jurisprudence of the European Court of Human Rights (“ECtHR”)?”
In our judgment of 20 November 2015 we stated (at [118]) that we considered that the answers to these questions of EU law were not clear and were necessary in order for us to give judgment in these proceedings.
The President of the CJEU granted an application that the reference be expedited and that it be joined to the reference made by the Stockholm Administrative Court of Appeals then pending as Case C-203/15 Tele2 Sverige AB.
Following a hearing on 12 April 2016, the Grand Chamber of the CJEU gave judgment on 21 December 2016. The dispositif reads as follows:-
“1. Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on Privacy and Electronic Communications), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding national legislation which, for the purpose of fighting crime, provides for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication.
2. Article 15(1) of Directive 2002/58, as amended by Directive 2009/136 read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter of Fundamental Rights must be interpreted as precluding national legislation governing the protection and security of traffic and location data and, in particular, access of the competent national authorities to the retained data, where the objective pursued by that access, in the context of fighting crime, is not restricted solely to fighting serious crime, where access is not subject to prior review of a court or an independent administrative authority, and where there is no requirement that the data concerned should be retained within the European Union.
3. The second question referred by the Court of Appeal (England & Wales) (Civil Division) is inadmissible.”
It appears that the first paragraph of the dispositif reflects the language of the Swedish legislation which was the subject of the reference by the Swedish court, whereas paragraphs 2 and 3 of the dispositif reflect the questions referred by this court.
Following the handing down of the judgment of the CJEU, a considerable delay occurred before the matter was listed before this court for further hearing. At the prompting of the court it was listed for hearing on 7 June 2017 but that hearing was vacated because of the non-availability of certain counsel. The case has now been relisted for hearing before us.
There have been several developments since the judgment of the CJEU.
(1) Sections 1 and 2 of the Data Retention and Investigatory Powers Act 2014 (“DRIPA”) were repealed on 30 December 2016.
(2) The legislation which has replaced the data retention arrangements under DRIPA, i.e. Part 4 of the Investigatory Powers Act 2016, is itself the subject of a judicial review claim brought by Liberty. This includes a challenge to the 2016 Act on grounds of non-compliance with the CJEU's judgment in the present case. Permission to apply for judicial review has been granted and a substantive hearing of the claim is due to be heard in the Administrative Court on 27 and 28 February 2018.
(3) In proceedings brought by Privacy International against the Secretary of State for Foreign and Commonwealth Affairs and others the Investigatory Powers Tribunal (“the IPT”) on 8 September 2017 made a further reference to the CJEU seeking, inter alia, to clarify the extent to which, if at all, the requirements set out in the CJEU's judgment in the present case apply in a national security context. (Judgment of Investigatory Powers Tribunal UKIPTrib IPT_15_110_CH). The questions referred are as follows:-“In circumstances where:
a. the SIAs' capabilities to use BCD supplied to them are essential to the protection of the national security of the United Kingdom, including in the fields of counter-terrorism, counterespionage and counter-nuclear proliferation;
b. a fundamental feature of the SIAs' use of the BCD is to discover previously unknown threats to national security by means of non-targeted bulk techniques which are reliant upon the aggregation of the BCD in one place. Its principal utility lies in swift target identification and development, as well as providing a basis for action in the face of imminent threat;
c. the provider of an electronic communications network is not thereafter required to retain the BCD (beyond the period of their ordinary business requirements), which is retained by the State (the SIAs) alone;
d. the national court has found (subject to certain reserved issues) that the safeguards surrounding the use of BCD by the SIAs are consistent with the requirements of the ECHR; and
e. the national court has found that the imposition of the requirements specified in §§1l9–125 of the judgment of the Grand Chamber in joined cases C-203/15 and C-698/15Tele2 Sverige AB v Post-och telestyrelsen and Secretary of State for the Home Department v Watson and Others (ECLI:EU:C:2016:970) (‘ the Watson Requirements’), if applicable, would frustrate the measures taken to safeguard national security by the SIAs, and thereby put the national security of the United Kingdom at risk;
1. Having regard to Article 4 TEU and Article 1(3) of Directive 2002/58/EC on privacy and electronic communications (the “e-Privacy Directive”), does a requirement in a direction by a Secretary of State to a provider of an electronic communications network that it must provide bulk communications data to the Security and Intelligence Agencies (‘SIAs’) of a Member State fall within the scope of Union law and of the e-Privacy Directive?
2. If the answer to Question (1) is ‘yes’, do any of the Watson Requirements, or any other requirements in addition to those imposed by the ECHR, apply to such a direction by a Secretary of State? And, if so, how and to what extent do those requirements apply, taking into account the essential necessity of the SIAs to use bulk acquisition and automated processing techniques to protect national security and the extent to which such capabilities, if otherwise compliant with the ECHR, may be critically impeded by the imposition of such requirements?”
(4) On 30 November 2017 the Secretary of State published a consultation document and proposed amendments to the Investigatory Powers Act 2016 which are intended to address the judgment of the CJEU in the present proceedings. The consultation and proposed amendments deal, inter alia, with the restriction, in the context of fighting crime, to “serious crime”, the need for prior review by a court or an independent administrative authority for access to retained data, ex-post facto notification and the issue of retention of retained communications data within the EU.
It is now for this court to seek to apply the decision of the CJEU to the challenge brought against DRIPA in the national proceedings. As Mr Jaffey QC, on behalf of the First Respondent, pointed out in the course of his oral submissions, the fact that DRIPA has now been repealed does not make this a pointless exercise....
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