High Court Declares Part 4 of Investigatory Powers Act 2016 Incompatible with EU Law

Introduction

The landmark judgment in The National Council for Civil Liberties (Liberty), R (On the Application Of) v. Secretary of State for the Home Department & Anor ([2018] EWHC 975 (Admin)) assessed the compatibility of Part 4 of the Investigatory Powers Act 2016 ("IPA") with European Union ("EU") law and the European Convention on Human Rights ("ECHR"). Liberty, representing civil liberties, challenged the authority granted to the Secretary of State to issue "retention notices" compelling telecommunications operators to retain data. Central to the dispute was whether such power, affecting a wide array of private information excluding the communication content itself, adhered to EU legal standards, especially following the CJEU's invalidation of the Data Retention Directive in Digital Rights Ireland and subsequently in Watson.

Summary of the Judgment

The High Court, in an administrative capacity, adjudicated the claim focusing solely on the compatibility of Part 4 of the IPA with EU law. The Defendants conceded that Part 4 was incompatible with EU law in two aspects:

• Non-Limit to Serious Crime: Access to retained data was not strictly confined to the purpose of combating serious crime.
• Missing Judicial Oversight: Access to retained data lacked prior review by a court or an independent administrative body.

Instead of an immediate disapplication of the Act, the Court opted to grant a declaratory judgment specifying the inconsistencies and stipulated a deadline for legislative amendments to align with EU standards, thereby avoiding immediate disapplication which could have led to public disorder and operational chaos.

Analysis

Precedents Cited

The judgment heavily referenced seminal cases that delineate the supremacy and direct effect of EU law within member states. Notable among these were:

• Digital Rights Ireland Ltd v Minister for Communications: Established that broad data retention mandates without sufficient safeguards are incompatible with EU law.
• Factotame Series: Affirmed the ability of national courts to challenge and disapply national legislation conflicting with EU law.
• Equal Opportunities Commission (EOC) Case: Highlighted the capacity of declarations of incompatibility without the power to strike down Acts of Parliament.

These cases collectively underscored the necessity for national legislation to conform to EU mandates and the judiciary's authority to review and declare such conflicts.

Legal Reasoning

The Court engaged with the doctrine of EU law supremacy, recognizing that part of the UK’s constitutional framework, especially under the European Communities Act 1972, mandates national laws to align with EU statutes. Although Parliamentary supremacy is a central tenet, within the IPA's framework, EU incompatibility necessitates rectification.

Part 4 of the IPA, echoing the Data Retention and Investigatory Powers Act 2014 ("DRIPA"), had previously been challenged and declared incompatible, particularly regarding purpose limitation and judicial oversight. The Court determined that immediate disapplication of Part 4 was unsuitable, considering the necessity of a functioning data retention system for public safety and crime prevention. Instead, a declaratory judgment was issued, recognizing the incompatibility while granting a timeline for legislative amendments.

Impact

This judgment emphasizes the judiciary’s role in ensuring national legislation remains within the ambit of EU law. It sets a precedent where courts can declare incompatibilities, prompting the legislature to enact compliant statutes. In the broader legal landscape, especially post-Brexit, while EU law no longer holds supremacy, this ruling interrogates how residual EU legal interpretations may influence domestic law transitions.

For future cases, the judgment underscores the necessity of strict adherence to necessity and proportionality principles in data retention frameworks, reinforcing privacy rights and judicial oversight mechanisms.

Complex Concepts Simplified

Retention Notices: Legal instruments allowing the government to compel telecommunications operators to store users' metadata for a specified duration.

Declarations of Incompatibility: Judicial findings that national law contravenes higher legal authority (EU law in this context), without nullifying the original law but advising legislative correction.

Doctrine of Supremacy: Principle stating that EU law takes precedence over conflicting national laws within member states.