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On 4 August 2023 the Court of Appeal (Dame Victoria Sharp, Lord Justice Stuart-Smith and Lord Justice Lewis) handed down its judgment in this case. The Court of Appeal concluded that the provisions of the Investigatory Powers Act 2016 which were challenged in the appeal and the subject of the Court of Appeal’s decision are, with one exception, Convention compliant and that those provisions do not violate EU law. The Court of Appeal remitted one issue to the Divisional Court for its consideration.
Liberty’s judicial review claim, issued over six years ago, challenged Parts 3, 4, 5, 6 and 7 of the 2016 Act on the basis that certain provisions violated Articles 8 and 10 of the Convention and also violated EU law. Parts 3 and 4 of the 2016 Act concern authorisations and notices for the retention and authorisation of communications data; Part 5, concerns warrants for targeted equipment interference for the obtaining of communications and equipment data and other information; Part 6, Chapter 1, concerns bulk interception warrants; Part 6, Chapter 2, concerns bulk acquisition warrants; Part 6, Chapter 3, concerns bulk equipment interference warrants; and Part 7, concerns warrants for the retention and examination of bulk personal datasets.
The Divisional Court (Singh LJ and Holgate J) dealt with the claim by way of three judgments, “the first EU law Judgment” ([2018] EWHC 975 (Admin)), “the Convention Judgment” ([2019] EWHC 2057 (Admin) [2020] 1 WLR 243) and “the second EU law Judgment” ([2022] EWHC 1630 (Admin)). See the June 2022 edition of the Data Brief for a summary of these judgments.
At the heart of the appeal was whether the arrangements governing access to data involve a justified interference with the right to respect for private and family life guaranteed by Article 8 and the right to freedom of expression in Article 10. A summary of the eight grounds of appeal is set out at paragraph 11 of the Court of Appeal’s judgment.
The Court of Appeal gave consideration to the implications of the Grand Chamber’s judgment in Big Brother Watch v United Kingdom (heavily relied upon by Liberty in the appeal), which was handed down after the Divisional Court’s Convention Judgment, as well as proposed amendments to the 2016 Act which the Respondents accepted were required in light of the Big Brother Watch judgment.
The Court of Appeal’s conclusions (summarised at paragraph 12 of the judgment) were as follows:
i) The amended provisions governing bulk interception warrants under Chapter 1 of Part 6 are sufficient to ensure adequate safeguards for the protection of confidential journalistic material;
ii) The provisions in Parts 3, 4, 5, Chapter 2 of Part 6 and Part 7 provide sufficient safeguards in this respect;
iii) Whether the provisions of Chapter 3 of Part 6 are sufficient to provide adequate safeguards for the protection of a journalist’s sources or confidential journalistic information in relation to communications obtained by means of a bulk equipment interference warrant will be remitted to the Divisional Court for consideration;
iv) The safeguards provided in Parts 5, 6 and 7 do provide adequate safeguards in connection with the use of criteria for examination of material; Parts 5, 6 and 7 do provide adequate safeguards governing the sharing of data transferred to authorities in other states save that those safeguards are not in accordance with law so far as material from bulk personal data sets are concerned as they are not contained in any legislation, code, or publicly available policy or other document;
v) Part 7 is not impermissibly wide and does provide sufficiently detailed rules governing retention and use of material; Parts 3, 4, 5, 6 and 7 do provide adequate safeguards for the protection of legally privileged material; Parts 3, 4, 5, 6 and 7 do not provide for the general and indiscriminate retention of data within the meaning of retained EU law and do provide adequately for prior independent authorisation of access to data. On the facts of this case, no question of the need for any remedy for any alleged violation of any article of the Charter arises.
The appeal was dismissed, subject to the two matters in bold above.
Further reading:
R. (on the application of National Council for Civil Liberties) v Secretary of State for the Home Department [2023] EWCA Civ 926[PE(OHI1]
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
