The Queen (on the application of National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Mr Justice Holgate |
| Judgment Date | 24 June 2022 |
| Neutral Citation | [2022] EWHC 1630 (Admin) |
| Docket Number | Case No: CO/1052/2017 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2022] EWHC 1630 (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
Ben Jaffey QC, David Heaton and Sophie Bird (instructed by Bhatt Murphy) for the Claimant
Sir James Eadie QC, Gerry Facenna QC, Julian Milford QC, Michael Armitage and John Bethell (instructed by Treasury Solicitor) for the Defendants
Hearing dates: 17–18 May 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down will be deemed to be Friday 24 th June 2022 at 10.30am. A copy of the judgment in final form as handed down can be made available after that time, on request by email to listoffice@administrativecourtoffice.justice.gov.uk;
Lord Justice Singh and
Introduction
This is the third stage of the Claimant's challenge to provisions of the Investigatory Powers Act 2016 (“the IPA” or “the 2016 Act”). On 27 April 2018 we gave judgment on the first stage of the challenge, which concerned the compatibility of Part 4 of the IPA with European Union (“EU”) law: [2018] EWHC 975 (Admin); [2019] QB 481 (“the 2018 judgment”). On 29 July 2019 we gave judgment in relation to the second stage of the challenge, which was an application for a declaration of incompatibility under section 4 of the Human Rights Act 1998 (“ HRA”): [2019] EWHC 2057 (Admin); [2020] 1 WLR 243 (“the 2019 judgment”). This third stage of the challenge concerns the remaining EU law issues.
It is common ground before us that, although in the meantime the United Kingdom (“UK”) has left the EU, on 31 January 2020, and the implementation period completion day has now passed (31 December 2020), relevant principles of EU law remain part of the law of this country as “retained EU law” under the European Union (Withdrawal) Act 2018 (“the 2018 Act”), as amended.
One reason why the residual EU law issues could not be determined in 2018 was that at that time there was pending a reference which had been made by the Investigatory Powers Tribunal (“IPT”) to the Court of Justice of the European Union (“CJEU”) in Case C-623/17 Privacy International v Secretary of State for the Foreign and Commonwealth Office. Judgment in that case was given by the Grand Chamber of the CJEU on 6 October 2020: [2021] 1 WLR 4421. On the same date the Grand Chamber gave judgment in Joined Cases C-511/18, C-512/18 and C-520/18 La Quadrature du Net & Ors v Premier Ministre & Ors: [2021] 1 WLR 4457. Those two judgments have loomed large in the submissions for the Claimant before us.
Furthermore, significant reliance has been placed by the Claimant on the judgment of the Grand Chamber of the European Court of Human Rights (“ECtHR”) in Big Brother Watch & Ors v UK (App. Nos. 58170/13, 62322/14 and 24960/15), which was delivered on 25 May 2021: (2022) 74 EHRR 17.
We are grateful to all counsel and those instructing them for the quality of their submissions, both written and oral. At the hearing before us we heard submissions by Mr Ben Jaffey QC on behalf of the Claimant and Sir James Eadie QC on behalf of the Defendants. After the hearing we received brief notes from each side, outlining their positions on the remedial powers which the Court might have should it decide any of the substantive issues in favour of the Claimant. It was agreed that further, more detailed submissions on remedies should await the outcome of the substantive claim.
The IPA
We summarised the legislative scheme of the IPA in the 2019 judgment, at paras. 34–62. We also set out an overview of the relevant legislation in an Annex to that judgment, which had been agreed between the parties, subject to three “riders” which were set out in the Annex. It is therefore unnecessary for us now to repeat what was said in the 2019 judgment and the Annex, which should be treated as if they were incorporated into this judgment.
The issues which now arise before us fall broadly into two categories. First, the Claimant challenges aspects of Part 4 of the IPA, read with Part 3, which concerns “communications data”. Secondly, the Claimant challenges aspects of the provisions in relation to “bulk powers”, in Parts 5, 6 and 7 of the IPA.
Relevant EU legislation
The Claimant relies on the following provisions of the EU Charter of Fundamental Rights (“EU Charter”). Article 7 provides:
“ Respect for private and family life
Everyone has the right to respect for his or her private and family life, home and communications.”
Article 8 provides:
“ Protection of personal data
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.”
Article 11(1) provides:
“ Freedom of expression and information
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 without interference by public authority and regardless of frontiers.”
Article 51(1) provides:
“ Field of application
1. The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.”
Article 52 provides:
“ Scope of guaranteed rights
1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
…
3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”
The Claimant also relies on Parliament and Council Directive 2002/58/EC (as amended by Parliament and Council Directive 2009/136/EC) (“the ‘e-Privacy Directive’”).
Article 1 of the e-Privacy Directive provides:
“ Scope and aim
1. This Directive harmonises the provisions of the Member States required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the Community.
…
3. This Directive shall not apply to activities which fall outside the scope of the Treaty establishing the European Community, such as those covered by Titles V and VI of the Treaty on European Union, and in any case to activities concerning public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the activities of the State in areas of criminal law.”
Article 3 provides:
“ Services concerned
This Directive shall apply to the processing of personal data in connection with the provisions of publicly available electronic communications services in public communications networks in the Community, including public communications networks supporting data collection and identification devices.”
Article 5(1) provides:
“ Confidentiality of the communications
1. Member States shall ensure the confidentiality of communications and the related traffic data by means of a public communications network and publicly available electronic communications services, through national legislation. In particular, they shall prohibit listening, tapping, storage or other kinds of interception or surveillance of communications and the related traffic data by persons other than users, without the consent of the users concerned, except when legally authorised to do so in accordance with Article 15(1). This paragraph shall not prevent technical storage which is necessary for the conveyance of a communication without prejudice to the principle of confidentiality.”
Article 15(1) provides:
“ Application of certain provisions of Directive 95/46/EC
1. Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1), (2), (3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a...
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