Introduction

The case of Open Rights Group & Anor v Secretary of State for the Home Department & Anor ([2021] EWCA Civ 1573) represents a significant judicial intervention in the interplay between national legislation and retained European Union (EU) law within the UK's legal framework post-Brexit. This Court of Appeal decision addressed the compatibility of the "Immigration Exemption" in the Data Protection Act 2018 (DPA 2018) with the UK General Data Protection Regulation (UK GDPR).

The appellants, Open Rights Group and others, challenged the Immigration Exemption, arguing its inconsistency with Articles 23 of both the GDPR and the UK GDPR. The central issue revolved around whether the courts possess the jurisdiction to "disapply" this exemption immediately or whether relief could be suspended to allow the government time to enact legislative remedies.

Summary of the Judgment

The Court of Appeal upheld the appeal, determining that the Immigration Exemption in the DPA 2018 contravenes Article 23 of the GDPR and UK GDPR. However, instead of granting immediate relief, the court opted to suspend the declaratory order of incompatibility until January 31, 2022. This suspension affords the government a reasonable period to amend the legislation to align with data protection standards.

The decision underscores the court's willingness to balance the necessity of upholding legal standards with the practicalities of legislative reform, thereby maintaining legal certainty and minimizing disruption.

Analysis

Precedents Cited

The judgment extensively references prior cases that shape the court's approach to handling incompatibilities between national law and EU law:

• Liberty v Secretary of State for the Home Department ([2018] EWHC 975 (Admin)): Established the principle that courts can suspend judicial relief to allow time for legislative amendment when immediate disapplication would cause significant disruption.
• La Quadrature du Net and others (C-511/18, etc.) [2021] CMLR 31: Highlighted that only the Court of Justice of the EU (CJEU) can temporally suspend the primacy of EU law, reinforcing that national courts should not independently override EU regulations.
• Chester v Secretary of State for Justice [2013] UKSC 63: Examined the inability of UK courts to make quashing orders against primary legislation, emphasizing the role of Parliament in remedying legislative deficiencies.
• Gewestelijke (C-24/19) [2021] CMLR 9: Reiterated that suspensions to maintain national law inconsistent with EU law should be exceptional and strictly limited.
• B v Latvia (C-439/19, EU-C-2021-504): Confirmed that suspensions based on legal certainty are only permissible under stringent conditions.

Legal Reasoning

Lord Justice Warby, delivering the judgment, navigated the complexities introduced by Brexit, particularly the transition of the GDPR into UK law as the UK GDPR. He emphasized that:

• The UK GDPR maintains supremacy over domestic legislation, necessitating the disapplication of conflicting laws.
• The judiciary possesses the authority to suspend such disapplications to uphold legal certainty, avoiding immediate disruption.
• The suspension must be temporary, exceptional, and justified by overriding public interests.

The court assessed the government’s capacity and intention to rectify the legislative inconsistency within a reasonable timeframe. Considering the government's track record and the practical steps outlined to amend the DPA 2018, the court found sufficient grounds to approve the suspension until January 31, 2022.

Impact

This judgment sets a precedent for how UK courts handle conflicts between retained EU law and domestic legislation. It clarifies that while courts can identify and declare incompatibilities, they can also judiciously delay enforcement to facilitate legislative corrections. This balance ensures that fundamental rights are protected without causing undue legal instability or chaos.

Future cases involving similar conflicts may cite this judgment to argue for or against the suspension of judicial relief, depending on the circumstances and the government's responsiveness in addressing legislative gaps.

Complex Concepts Simplified

Declaratory Order

A declaratory order is a judicial determination that a specific law or provision is incompatible with established legal standards, such as the GDPR in this case. It does not, by itself, nullify the law but formally recognizes its inconsistency.

Disapplication of Legislation

Disapplication refers to the legal act of rendering a specific law or provision unenforceable due to its conflict with higher legal standards, such as human rights or data protection regulations.

Legal Certainty

Legal certainty ensures that laws are clear, predictable, and applied consistently, allowing individuals and businesses to understand and rely on the law in their actions.

Retained EU Law

Post-Brexit, retained EU law refers to EU regulations and directives that have been incorporated into UK law and continue to have effect unless amended or repealed by the UK Parliament.

Conclusion

The Court of Appeal's decision in Open Rights Group & Anor v Secretary of State for the Home Department & Anor underscores the judiciary's role in maintaining the integrity of data protection laws while recognizing the practical necessities of legislative reform. By allowing the suspension of declaratory relief, the court adeptly balances the enforcement of fundamental rights with the need for governmental flexibility in amending legislation. This judgment not only reinforces the supremacy of the UK GDPR but also provides a clear framework for addressing future conflicts between retained EU law and domestic statutes, ensuring that legal certainty and the protection of rights remain paramount.