In the first phase of Liberty’s landmark challenge to the Investigatory Powers Act 2016 (“IPA”), Singh LJ and Holgate J sitting as a Divisional Court have granted a declaration that in the area of criminal justice, Part 4 of the Investigatory Powers Act 2016 is, in part, incompatible with EU law. Other parts of Liberty’s challenge to the IPA will be considered at a later date.
Part 4 was declared incompatible in so far as it (a) authorises the issue of retention notices for the purpose of investigating crime that is not “serious crime”, and (b) provides for access to retained data that is not subject to prior review by a court or an independent administrative body.
By way of remedy, the court has allowed the Government and Parliament a “reasonable amount of time” to correct the defects which exist and which are incompatible with EU law. This period will expire on 1 November 2018. However, the court decided not to disapply the legislation.
Part 4 of the IPA contains a regime which permits the Secretary of State to require telecommunications operators to retain specified communications data for up to 12 months. The power does not concern the content of communications, but a wide range of information which can be used to identify the duration, location, or parties to a communication. The power can only be exercised in certain circumstances, including where it is considered to be necessary and proportionate for one or more of the purposes specified in the Act.
The controversial IPA follows and replaces the Data Retention and Investigatory Powers Act (“DRIPA”) of 2014. Section 1 of DRIPA was declared by the Court of Appeal in Watson in January 2018 to be incompatible with EU law in certain respects, (namely, that in the area of criminal justice, access to retained data was not limited to the purpose of combating “serious crime”, and access to retained data was not subject to prior review by a court or an independent administrative body), following the judgment of the Court of Justice of the European Union (“CJEU”) in Tele2/Watson.
However, DRIPA had already been repealed and replaced with the IPA by this time, meaning that the Court of Appeal’s declaration related to a past incompatibility; it did not have the effect of disapplying any legislation currently in force.
As a result of this background, the Secretary of State in the present case had already conceded that Part 4 of the Act was incompatible with EU law to the same limited extent.
The appropriate relief to grant
As to the remedy to be granted, Liberty had argued that the court should go further than simply granting declaratory relief, and disapply the current legislation. Any such order of disapplication should be suspended until 31 July 2018, to allow a reasonable opportunity to introduce legislation which is compatible with EU law.
However, the Divisional Court accepted the Secretary of State’s argument that the only appropriate relief for this unlawfulness was declaratory, and that it was not appropriate to make an order disapplying the unlawful parts of the 2016 Act.
Emphasising that this is a “very important constitutional case”, in which there were “vital public interests at stake on each side of the argument”, the court formed the “clear view” that it should not “do anything which would have the effect of immediately disapplying Part 4 of the 2016 Act”, with the “resultant chaos and damage to the public interest which that would undoubtedly cause” (§46).
To avoid such a result, the court analysed in some detail how the doctrine of the supremacy of EU law and the requirement to “disapply” incompatible national legislation has been interpreted and applied by national courts.
The court concluded from this review that it must inquire in to the nature and extent of the incompatibility of national legislation with EU law. Sometimes, incompatibility may consist of a provision in national law which can simply be “ignored” or “overridden” by the EU law norm. For example, a procedural threshold for access to a court which is flatly inconsistent with the directly effective EU law norm. The national court in such a case simply “regards the rule of national law as being ineffective to the extent of its incompatibility with the directly effective EU law” (§74).
In others, such as the present, the court considered that the nature and extent of incompatibility with EU law may not go so far – the incompatibility which had been identified by the CJEU and accepted by the Secretary of State here consisted of two failures to have certain safeguards, which would be remedied by taking positive steps by way of amending legislation. This process was bound to take some time. The court was, in that context, “unable to reach the view” that from the moment that incompatibility was pronounced by the CJEU or when it was acknowledged by the Secretary of State, the national legislation had to be disapplied immediately – this would be a “recipe for chaos” (§§74-75). The court went so far as to say that a “coercive” remedy would not be necessary or appropriate given the delicate constitutional context (§93).
It is clear that the court was driven to this conclusion by a sense that it was constitutionally required to “proceed with caution”, given the practical implications of immediate disapplication and the perceived lack of judicial precedent for such an approach. This is unsurprising.
However, the distinctions drawn by the court might be thought to be difficult. The court recognised that in the case of a provision of primary legislation that is “so clearly, inherently and absolutely incompatible with EU law”, it must be disapplied. On the other hand, in cases such as the present where there will “clearly be the need for an alternative scheme”, there will likely be strong constitutional reasons for declining to grant any order or declaration which would have the effect of immediate disapplication. It is notable that the court left to one side the issue of a period of suspension following disapplication, preferring to avoid a “coercive” remedy altogether and passing responsibility back to the Government and Parliament to remedy unlawfulness.
Liberty had also contended that Part 4 of the 2016 Act was incompatible with EU law in several other respects. These included that Part 4 permits the ‘general and indiscriminate’ retention of communications data, amounting to a serious violation of privacy rights. The Divisional Court disagreed, since the power could only be exercised where it was considered to be necessary and proportionate. As to the other arguments, the Divisional Court agreed with the Secretary of State that it should not make any reference to the CJEU, either because the challenged aspect of the 2016 Act is compatible with EU law, or because it was already being dealt with by a separate preliminary reference to the CJEU made by the Investigatory Powers Tribunal in Privacy International on 8 September 2017.
The first phase of Liberty’s challenge to the IPA may have been successful – however, the real practical impact of this case, and of the subsequent phases of challenge, remains to be seen.
Charlotte Gilmartin is a barrister at One Crown Office Row.