Investigatory Powers Act declared incompatible with EU law in part

27/04/18

Part 4 of the Investigatory Powers Act 2016 authorises the Government to issue retention notices to telecommunications operators requiring them to retain data for a prescribed period. The Divisional Court today allowed in part a judicial review claim by Liberty, granting a declaration (reflecting a concession made by the Government) that in the area of criminal justice, Part 4 of the Act was incompatible with EU law in two respects: first, it authorises the issue of retention notices for the purpose of investigating crime that is not “serious crime”; second, there is no system of prior independent authorisation governing subsequent access to retained data.

Much of the argument before the Court centred on the question whether (as the Government argued) the Court should limit itself to a declaration reflecting the Government’s concession or (as Liberty contended) set a timetable for steps to be taken to remedy the incompatibilities. The Court decided not to make an “order for disapplication”, but instead granted a declaration that the Act must be amended by 1 November 2018.

The Court refused to refer to the CJEU certain other aspects of the claim. It rejected Liberty’s case on some of those points and, on others, stayed the claim pending a reference already made by the Investigatory Powers Tribunal.

Other parts of Liberty’s challenge, based on incompatibility with the European Convention rather than EU law, remain to be determined at a later date.

The judgment is here.