Privacy Rights: How should a court remedy legislative incompatibility with EU law?

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R (The National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department & Anor [2018] EWHC 975 (Admin) (27 April 2018)

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.

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High Court quashes guidance on deporting EEA nationals who are sleeping rough

R (On the Application of Gureckis) v Secretary of State for the Home Department [2017] EWHC 3298 (Admin)

Read the judgment here: http://www.bailii.org/ew/cases/EWHC/Admin/2017/3298.html

homeless-person-sleeping-in-doorwayRecent years have seen a significant increase in the number of people sleeping on the streets in Greater London — the figure has more than doubled since 2017.[1] This includes people of all nationalities, and a significant number of EEA nationals.

The High Court has quashed policy guidance which set out the circumstances in which “rough sleeping” would be treated as an abuse of EU Treaty rights, rendering an EEA national liable to removal if this would be proportionate .

Factual Background

The Claimants were two Polish nationals and one Latvian national against whom removal notices had been served. They challenged the legality of the policy on the basis that it was contrary to EU law.

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