Divisional Court gives judgment on challenge to the Investigatory Powers Act 2016

Cases

The Divisional Court (Singh LJ and Holgate J) has handed down its latest judgment in the judicial review challenge to the lawfulness of the Investigatory Powers Act 2016, brought by the NGO, Liberty: Liberty v Secretary of State for the Home Department and Secretary of State for Foreign and Commonwealth Affairs [2022] EWHC 1630 (Admin).

In this judgment, the Divisional Court considered whether powers in the 2016 Act, including those for ‘bulk’ surveillance, were contrary to the e-Privacy Directive and the EU Charter of Fundamental Rights (still binding on the UK as retained EU law), in light of the CJEU’s recent judgments in Privacy International v Secretary of State for the Foreign and Commonwealth Office and La Quadrature du Net & Ors v Premier Ministre & Ors.

The Divisional Court held that the relevant provisions of the 2016 Act were compatible with EU law, with one exception. The exception was s.61 of the Act, which provides for the security and intelligence agencies to obtain access to retained data without any need for prior independent authorisation. The Court held that, insofar as that power was exercised for the purposes of the prevention or detection of crime (outside the sphere of national security), the security and intelligence agencies required prior independent authorisation.

Of particular note, the Court rejected Liberty’s argument that retained EU law should encompass, or reflect, the May 2021 judgment of the Grand Chamber of the European Court of Human Rights in Big Brother Watch & Ors v UK, and so disapply provisions in the Act that had been found to be incompatible with the ECHR. The Court said that the CJEU would not regard itself as being bound by the judgment of the Grand Chamber in Big Brother Watch. In any case, it was common ground that if Big Brother Watch had been a judgment of the CJEU, it would not have been binding on the UK (since it was made after 31 December 2020); and the Court said Liberty could not achieve indirectly, by relying on a judgment  of the ECtHR, that which it could not achieve directly, by relying on a judgment of the CJEU.

Julian Milford QC and John Bethell of 11KBW acted for the Secretaries of State, instructed by the Government Legal Department.

A copy of the judgment is available here.