Latest Data Retention Judgment

April 26, 2018

In the R (National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department [2018] EWHC 975 (Admin), the Divisional Court was concerned only with one aspect of a wider claim by Liberty, namely the compatibility of the IPA 2016, part 4 with EU law. Like the Court of Appeal judgment in Watson, it is a slightly unsatisfactory case because consideration is being to provisions that are in the process of being amended because they are widely acknowledged to be too widely drawn.

Part 4 was brought into force (in part) on 30 December 2016 and substantially re-enacts the ill-fated Data Retention and Investigatory Powers Act 2014 (DRIPA). Doubts about the compatibility of part 4 arise from judgments of the CJEU in Digital Rights Ireland (Case C-293/12) and Tele2 Sverige AB v Post-och telestyrelsen (Case C-203/15), which rolled over into the Court of Appeal judgment in Secretary of State for the Home Department v Watson MP & Ors [2018] EWCA Civ 70. By the time of ther Court of Appeal judgment, the doubts had turned to certainties.

Liberty sought an ‘order of disapplication’ in respect of Part 4 insofar as it is incompatible with EU law or is undefended but submitted that the order of disapplication should be suspended until 31 July 2018 to give the Government and Parliament a reasonable opportunity to introduce legislation which is compatible with EU law. On 7 July 2017 the government conceded that part 4 is, in its current form, inconsistent with the requirements of EU law in two respects and commenced a process of consultation with a view to making amendments.

The particular focus was the power given to the Secretary of State by the IPA 2016, s 87(1) to issue ‘retention notices’ to telecommunications operators requiring the retention of data. The 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. 

The Court’s final conclusion, having resisted a number of applications from Liberty for it to disapply or refer various aspects of part 4 on wider grounds, was as follows (at [186]-[187]):

this claim for judicial review succeeds in part, because Part 4 of the Investigatory Powers Act 2016 is incompatible with fundamental rights in EU law in 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.

We have concluded that the legislation must be amended within a reasonable time and that a reasonable time would be 1 November 2018, which is just over 6 months from the date of this judgment.  We have also concluded that the appropriate remedy is a declaration to reflect our judgment.