Judgment Approved by the court for handing down.
Davis & Ors v SSHD
Lord Justice Bean :
This is the judgment of the court to which we have both contributed.
1.
The claimants in three separately issued claims, which we heard together, apply for
judicial review of the data retention powers in section 1 of the Data Retention and
Investigatory Powers Act 2014 (“DRIPA”). Mr Brice and Mr Lewis, the claimants for
whom Mr Drabble QC appeared, are concerned about the width of the powers to
retain and gain access to their data on a number of grounds, including (but not limited
to) the confidentiality of communications with solicitors. Mr Davis and Mr Watson,
who are joint claimants in case CO/3794/2014, do so as members of the House of
Commons who share those general concerns but also in addition have particular
concerns about the confidentiality of communications to and from constituents. Mr
Davis is Conservative MP for Haltemprice and Howden; Mr Watson is Labour MP
for West Bromwich East.
2.
Permission to seek judicial review was initially refused on the papers by Blake J but
was granted at an oral hearing by Lewis J on 8th December 2014. Lewis J also
permitted Open Rights Group and Privacy International to submit an intervention by
way of written submissions (on terms that the interveners would bear their own costs).
We granted an application by the Law Society made shortly before the hearing to
intervene by way of written submissions on the same basis.
3.
The challenge is to the validity of s 1 of DRIPA and the Regulations made under it as
being contrary to European Union law, as expounded in the decision of the Grand
Chamber of the Court of Justice of the European Union (“the CJEU”) in Digital
Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources
and others and the conjoined case of Kärntner Landesregierung, Michael Seitlinger,
Christof Tschohl and others delivered on 8th April 2014 and reported at [2015] QB
127. We shall refer to this decision as “Digital Rights Ireland”.
4.
At common law, Acts of the United Kingdom Parliament are not open to challenge in
the courts. But the position under EU law is different. Decisions of the CJEU as to
what EU law is are binding on the legislatures and courts of all Member States. The
subtleties of the relationship between UK domestic courts and the European Court of
Human Rights at Strasbourg arising, since 2000, from the duty under s 2(1) of the
Human Rights Act 1998 to “take account” of the jurisprudence of that court, do not
arise. The claimants (as a fallback to their EU law arguments) have pleaded an
alternative claim for a declaration under s 4 of the HRA 1998 that s 1 of DRIPA is
incompatible with their Convention rights; but this was scarcely mentioned in oral
argument. Indeed, as will be seen later in this judgment, it was mainly counsel for the
Home Secretary, not counsel for the claimants, who asked us to take account of the
jurisprudence of the Strasbourg court in support of his arguments.
5.
The present claims involve, as did Digital Rights Ireland, the CJEU’s interpretation of
Articles 7 and 8 of the Charter of Fundamental Rights of the EU. Article 7 provides:
“Everyone has the right to respect for his or her private and
family life, home and communications.”
Article 8 provides: