Judgment Approved by the court for handing down.
Davis & Ors v SSHD
is authorisation by an independent administrative body, that body would have to be
appointed after the passing of the new Act and be ready to start work by the time it
comes into effect. All this would, we think, take longer than five months.
122.
123.
We will make an order disapplying s 1 of DRIPA to the extent that it permits access
to retained data which is inconsistent with EU law in the two respects set out in our
declaration, but suspend that order until 31 March 2016. The order will be that s 1 is
disapplied after that date:
(a)
in so far as access to and use of communications data retained pursuant to a
retention notice is permitted for purposes other than the prevention and
detection of serious offences or the conduct of criminal prosecutions relating
to such offences; and
(b)
in so far as access to the data is not made dependent on a prior review by a
court or an independent administrative body whose decision limits access to
and use of the data to what is strictly necessary for the purpose of attaining the
objective pursued.
In their submissions on remedy following receipt of our draft judgment counsel for
the Defendant raised for the first time the question of whether access to retained data
for national security reasons is within the scope of EU law. This was not raised in the
oral or written arguments previously addressed to us and we decline to allow it to be
raised at this late stage. Whether national security cases should have different
provisions for authorisation of access to communications data will no doubt be the
subject of careful thought when the new legislation is being drafted.
Costs
124.
Counsel and solicitors acting for Mr Davis and Mr Watson, to their very great credit,
have acted pro bono, and pursuant to an agreement reached with the Government
Legal Department they do not seek a pro bono costs order. In their case, therefore,
there will be no order as to costs. Mr Brice and Mr Lewis are legally aided: it is
accepted that in their case the Defendant must pay their costs, with the usual order for
detailed legal aid assessment. The interveners will bear their own costs in accordance
with the terms of the orders allowing them to intervene.
Permission to appeal
125.
The Secretary of State seeks permission to appeal. Plainly the public importance of
the case justifies the grant of permission, as the Claimants accept. We are prepared to
grant permission subject to the condition in the case of Mr Davis and Mr Watson, who
do not have the protection of a legal aid certificate, that the Defendant shall not be
entitled to seek an order against them for costs either in this court or on appeal.
126.
We express our gratitude to leading and junior counsel and solicitors for all parties for
the exemplary assistance we have received in this case.