The Queen (on the Application of National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate,Lord Justice Singh |
| Judgment Date | 29 July 2019 |
| Neutral Citation | [2019] EWHC 2057 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1052/2017 |
| Date | 29 July 2019 |
[2019] EWHC 2057 (Admin)
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
Sir James Eadie QC, Gerry Facenna QC, Julian Milford and Michael Armitage (instructed by the Government Legal Department) for the Defendants
Angus McCullough QC and Rachel Toney (instructed by SASO) as Special Advocates
Jude Bunting (instructed by Bindmans) for the Intervener
Hearing dates: 17–21 June 2019
Approved Judgment
Lord Justice Singh and
| Introduction | 1 |
| Procedural matters | 11 |
| Background to the 2016 Act | 18 |
| The legislative scheme of the 2016 Act | 34 |
| 63 | |
| Caselaw of the European Court of Human Rights on “in accordance with the law” | 76 |
| Guidance from the Supreme Court on “in accordance with the law” | 83 |
| The importance of the nature of the alleged incompatibility | 87 |
| Use of Hansard in cases concerning the compatibility of primary legislation under the HRA | 91 |
| The jurisdiction of the Investigatory Powers Tribunal | 99 |
| The decision of the First Section in Big Brother Watch | 113 |
| The challenge to the regime for bulk interception warrants | 142 |
| The challenge in respect of bulk and thematic equipment interference warrants | 179 |
| Non-protected material | 202 |
| Thematic equipment interference warrants under Part 5 | 204 |
| The challenge in respect of bulk personal datasets | 210 |
| The challenge in respect of bulk acquisition warrants | 241 |
| The challenge to Parts 3 and 4 of the 2016 Act | 265 |
| Lawyer-client communications | 271 |
| The challenge in respect of confidential journalistic material | 293 |
| MI5's handling arrangements | 353 |
| Conclusion | 393 |
| Annex: Overview of relevant legislation |
Introduction
In R (National Council for Civil Liberties) v Secretary of State for the Home Department [2018] EWHC 975 (Admin); [2019] QB 481 this Court gave judgment on the first part of the Claimant's challenge to the Investigatory Powers Act 2016 (“the IPA” or “the 2016 Act”). That challenge was brought under European Union (“EU”) law. It concerned only Part 4 of the 2016 Act, concerning powers to require the retention of “communications data”, which was the relevant part which had then been brought into force. The Court is now concerned with the second part of the Claimant's challenge, which arises under the Human Rights Act 1998 (“ HRA”). This challenge concerns various other parts of the 2016 Act, which have now been brought into force on various dates. The only remedy which the Claimant seeks is a declaration of incompatibility under section 4 of the HRA.
The Claimant challenges four different sets of provisions in the 2016 Act. What they all have in common is that they concern “bulk” powers rather than powers which are directed at any particular individual who may be a potential subject of interest (sometimes called “targeted” surveillance). The relevant provisions are as follows:
(1) Part 6, Chapter 1, which relates to bulk interception warrants.
(2) Part 6, Chapter 3, and Part 5: these concern warrants for bulk and thematic “equipment interference”. The Claimant has described this in its submissions as “hacking” but we think it preferable to use the term used in the IPA itself, namely “equipment interference”.
(3) Part 7, which relates to warrants for bulk personal datasets (“BPD”).
(4) Part 6, Chapter 2, and Parts 3–4: respectively warrants for bulk acquisition of “communications data” and retention notices for, and acquisition of, communications data. “Communications data” is not the “content” of communications but other matters such as “where, when and who”.
In broad terms the Claimant's case is that:
(1) The provisions of the 2016 Act under challenge are incompatible with Article 8 (the right to respect for private life and correspondence) and Article 10 (the right to freedom of expression) of the European Convention on Human Rights (“ECHR”) because they are too wide. They lack the “minimum safeguards” established by the European Court of Human Rights for secret surveillance regimes. They are neither necessary in a democratic society nor proportionate.
(2) Further or alternatively, the powers lack sufficient safeguards to comply with the “minimum requirements” taken together. For this reason they are said not to be “in accordance with the law” (the phrase used in Article 8) or “prescribed by law” (that used in Article 10). This was the main focus of the Claimant's submissions before us.
(3) The powers lack sufficient safeguards for lawyer-client communications and journalistic material, including the confidential sources of a journalist's information.
(4) The continued operation of Part 1, Chapter 2, of the Regulation of Investigatory Powers Act 2000 (“ RIPA”), which concerns the acquisition of communications data, is not in accordance with law because it does not comply with EU law. This follows, it is said, from this Court's judgment in 2018, to which we have referred above. The Claimant submits that, although amendments were made to Parts 3–4 of the IPA in accordance with the declaration granted by this Court, the previous regime has not been repealed. The Claimant submits that that regime is not in accordance with law for the reasons identified in this Court's previous judgment.
This last part of the challenge, which had not been foreshadowed in the grounds but which was set out in the Claimant's skeleton argument for the substantive hearing before this Court, at paras. 163–166, was not pursued at that hearing.
A further ground of challenge has arisen only recently as the result of disclosures made by the Defendants pursuant to their duty of candour and co-operation with the Court. For that reason this argument could not have been foreshadowed in the Claimant's grounds of challenge. This argument is to the effect that the way in which the Security Service (MI5) has in fact operated its handling procedures in the last few years has been unlawful; and that this demonstrates that the safeguards in the IPA against the risk of abuse of power, even if they were adequate in theory, are not effective in practice.
There is a fundamental difference of approach as between the Claimant and the Defendants in relation to the obtaining and retention of bulk data, as distinct from its later selection for examination. It is common ground between the parties that there is an interference with the right to respect for private life at all material stages, including at the stage when data is obtained and retained. However, the Defendants submit that there is no “meaningful” intrusion into privacy rights until the stage when the data is selected for examination. The Claimant submits that that is wrong and inconsistent with “decades” of authority from the European Court of Human Rights. It also submits that this is a proposition which is not only “startling” but “dangerous and artificial”.
The Claimant submits that the 2016 Act creates a regime in which vast amounts of data can be “hoovered up” on a bulk basis in circumstances in which most of it will never be of any interest to the intelligence agencies or other authorities, such as the police. It submits that that risks creating a society in which everyone is susceptible to surveillance but does not know when they might be subject to such surveillance. The Claimant submits that that can have a “chilling effect” on the way in which people going about their lawful business will behave, for example in the way in which they search the internet or store private information, such as diaries or photographs, on their computers or smart phones. The Claimant submits that the regime created by the 2016 Act is inconsistent with fundamental values in a free and democratic society governed by the rule of law.
The Defendants submit that the legislative scheme carefully created by the 2016 Act is compatible with Articles 8 and 10 and, in particular, that it is both in accordance with law and necessary in a democratic society. They submit that the Act strikes a fair balance between the rights of the individual and the general interest of the community, particularly bearing in mind, first, that it was the product of extensive pre-legislative scrutiny; and, secondly, the safeguards introduced by it, including the creation of the office of the Investigatory Powers Commissioner (“IPC”).
The Claimant accepts that certain submissions which it makes in its pleaded grounds are inconsistent with the judgment of the European Court of Human Rights (First Section) in Big Brother Watch & Ors v United Kingdom (Application No 58170/13, judgment of 13 September 2018). At the request of the applicants that case has been referred to the Grand Chamber. The Grand Chamber heard that case after the hearing before this Court, on 10 July 2019, together with a case from Sweden called Centrum för Rättvisa v Sweden (2019) 68 EHRR 2. In those circumstances the Claimant has not argued those points before this Court but has reserved them for consideration on any appeal in this case in the light of the decision of the Grand Chamber in Big Brother Watch. At the hearing before us it was common ground that this Court should not delay giving its judgment pending the decision of the Grand Chamber in Big Brother Watch.
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References
...Ltd, [2019] EWHC 3282 (Admin) High Court (2019b), R.(National Council for Civil Liberties) v Secretary of State for the Home Dept. [2019] EWHC 2057 (Admin) House of Lords Select Committee on Communications (2008), The Ownership of the News, HL 122-1, 27 June 2008, at: https://publications.p......