The Round-Up: Snooper’s Charter, Coroner’s Cab-Rank Ruling, and Foul Play with Freedom of Information

30 April 2018 by Eleanor Leydon

Image Credit: Guardian

The National Council for Civil Liberties (Liberty), R (On the Application Of) v Secretary of State for the Home Department & Anor: Liberty’s challenge to Part 4 of the Investigatory Powers Act, on the ground of incompatibility with EU law, was successful. In particular, Liberty challenged the power bestowed on the Secretary of State to issue ‘retention notices’ requiring telecommunications operators to retain communications data for up to 12 months (detail at [22]). This engaged three EU Charter rights: the right to private life, protection of personal data, and freedom of expression and information.

The High Court granted a declaration requiring the amendment of the legislation by 1 November 2018, in six months time. The Act was held incompatible with EU law in that:

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.

Given that incompatibility was acknowledged by the Defendants, much of the judgment turned on what remedy, if any, it was appropriate to provide [86]. The Court shied away from an immediate disapplication of the legislation, recognising that this was an important constitutional case with vital public interests at stake on both sides, and that immediate disapplication would lead to ‘chaos and damage to the public interest’ [46]. Neither was a coercive remedy necessary or appropriate [93]. However, the court did not accede to the Defendants submission of a grace period lasting until 1 April 2019, and stated [94]:

On the other hand it would not be just or appropriate for the Court simply to give the Executive a carte blanche to take as long as it likes in order to secure compliance with EU law. The continuing incompatibility with EU law is something which needs to be remedied within a reasonable time. As long ago as July 2017 the Defendants conceded that the existing Act is incompatible with EU law.

Finally, the court declined to either seek a reference from the CJEU, or to determine domestically, several subsidiary points. The questions of retention of data within the EU, and of the need to notify persons affected, were stayed pending the CJEU’s ruling in Privacy International. The court declined to make references regarding the scope of ‘communications data’ in the IPA, and whether there was a ‘seriousness threshold’ for all retention objectives, being satisfied that these were acte clair [155, 162].

Perhaps most importantly, the court refused to make a reference seeking a ruling of incompatibility on the ground of ‘general and indiscriminate retention of data.’ THE CJEU permitted targeted retention which was necessary and proportionate, and in light of the court’s analysis [127-135]:

we do not think it could possibly be said that the legislation requires, or even permits, a general and indiscriminate retention of communications data. The legislation requires a range of factors to be taken into account and imposes controls to ensure that a decision to serve a retention notice satisfies (inter alia) the tests of necessity in relation to one of the statutory purposes, proportionality and public law principles.

Adath Yisroel Burial Society & Anor, R (On the Application Of) v HM Senior Coroner for Inner North London: the High Court has quashed a senior coroner’s ‘cab rank’ policy, which prevented the prioritisation of burials on religious grounds. The policy unlawfully fettered the coroner’s discretion, was incapable of rational justification, breached Articles 9 and 14 of the Human Rights Act (freedom of religion and non-discrimination), and constituted indirect discrimination under the Equality Act 2010.

Addressing the proportionality considerations raised by Article 9 grounds, the court found [103]:

 ‘It is not necessary in this case to consider each of the four proportionality questions [see 99] separately and in turn. The fundamental difficulty with the Defendant’s policy is that it does not strike a fair balance between the rights concerned at all. Rather, as a matter of rigid policy, it requires the Coroner and her officers to leave out of account altogether the requirements of Jewish and Muslim people in relation to early consideration of and early release of bodies of their loved ones.’

This was re-emphasised at [107]: ‘ there should be a fair balance struck between the rights and interests of different people in society. The fundamental flaw in the present policy adopted by the Defendant is that it fails to strike any balance at all, let alone a fair balance.’

On the Article 14 ground, whilst the court recognised the need for a ‘bright line’ making the policy easy to understand and administer, and that the Defendant’s resources were limited, neither of these constituted sufficient justification for the discrimination involved.

However, the sixth ground of review, that the Defendant was in breach of the Public Sector Equality Duty, failed: the duty is essentially a procedural one, and did not equate to a duty to attach specific weight to any particular consideration. It was evident that the coroner had complied with this duty.

In The News

• The SRA have said that criminal solicitors ‘should help clients represent themselves’ if they can’t find a barrister. Furthermore, solicitors yet to take on a case affected by the direct action at the bar were advised to clarify with clients regarding the possible ‘unavailability’ of counsel. The regulation authority said that ‘it would not be acting in the clients’ interests to take a matter on knowing you are likely to be unable to complete it on their behalf.’
• More than 1,000 students have joined a class action lawsuit claiming compensation from universities, as a result of disruption due to strikes. The claim, if successful, could cost each university in the region of £10m. Some have suggested that the fees paid by students are dispersed into general services and the running of the university, but many students argue they are entitled to direct compensation.
• Finally, a councillor is facing trial for destroying records about a system to apprehend fouling dog owners, in what is believed to be the first time that anyone has been charged under section 77 of the Freedom of Information Act (altering or erasing records with intent to prevent disclosure).

Events

• A book colloquium on Human Trafficking and Slavery Reconsidered: Conceptual Limits and States’ Positive Obligations in European Law will take place in Oxford on 3rd May. More information here.
• Defamation Law and the Internet: Where Do We Go From Here?, will take place on the 3^rd May by webcast. More information here.
• Time for a Time Limit? Immigration Detention and Human Rights: The Human Rights Lawyers’ Association, 24^th May at Bindmans LLP. More information here.