Davis/Watson appeal

The Court of Appeal gave its¬†judgment this morning on the¬†Government’s appeal against the Divisional Court’s ruling in July in a claim for judicial review of DRIPA 2014, brought by David Davis MP and Tom Watson MP.¬† The ruling had been eagerly awaited by students of the Investigatory Powers Bill.

In summary, the judgment changes the legal weather around the bulk retention of (and access to) communications data, in a way that the Government will welcome.  But the Court of Appeal has deferred to the Court of Justice of the European Union (CJEU) for a final determination of the issues.  Even with the expedition that has been sought, it must be doubtful whether that will be obtained before the scheduled enactment of the Investigatory Powers Bill in late 2016.

Here is the judgment:

Davis/Watson judgment, Court of Appeal

The Divisional Court, applying the CJEU’s¬†Digital Rights Ireland judgment of April 2014,¬†had declared the data retention provisions of DRIPA 2014 to be incompatible with the EU’s Charter of Fundamental Rights, with effect from the end of March 2016.¬† I posted on the judgment at the time.

The Court of Appeal took a radically different approach.¬† Provisionally, it¬†was of¬†the view that “the CJEU in Digital Rights Ireland was not laying down definitive mandatory requirements in relation to retained communications data“, at least where national access rules were concerned (para 106).¬† But¬†mindful of the fact that¬†courts in six other Member States had applied Digital Rights Ireland in such a way as to invalidate national data retention legislation (para 117(3)), it has decided to refer questions to the CJEU along the following lines (para 118), their precise form to be determined:

  • Did the CJEU in Digital Rights Ireland intend to lay down mandatory requirements of EU law with which the national legislation of Member States must comply?
  • Did the CJEU in Digital Rights Ireland intend to expand the effect of Articles 7 and/or 8, EU Charter beyond the effect of Article 8 ECHR as established in the jurisprudence of the ECtHR?

The Court of Appeal also agreed to hear any applications in relation to interim relief (para 119).

Another reference to the CJEU has already been made by a Swedish court.  It remains to be seen whether, as the Court of Appeal hoped (judgment, para 117(5)), its reference will be expedited, and/or heard together with the Swedish case.

The Court of Appeal’s judgment will be of considerable comfort to the Government, which decided not to enshrine in this month’s draft Investigatory Powers Bill the full range of protections relating to access to communications data that the Divisional Court had indicated in July were required by¬†¬†Digital Rights Ireland.

But the final word, as in all matters of EU law, will rest with the CJEU.

UPDATE 28 JANUARY 2016: The CJEU informed the parties today that it has listed the case (C-698/15) for oral hearing on 12 April: exceptionally rapid expedition. It appears quite possible that judgment will be given before the Investigatory Powers Bill has completed its parliamentary passage in the autumn.

UPDATE 19 DECEMBER 2016: The CJEU will give its judgment on 21 December at around 0930 (0830 UK time).  Judgments usually follow, more or less, the preliminary opinion of the Advocate General.  The opinion in this case was delivered on 19 July 2016, and is summarised here.  The Advocate General took a position closer to that of the Divisional Court than to that of the Court of Appeal Рin summary, worse for the Government.

If the judgment  of the CJEU follows the Advocate General, DRIPA 2014 (which expires anyway at the end of the year) will be held to lack sufficient safeguards in some respects.  More significantly, a judgment adverse to the Government is likely to mean that some changes may be needed to the Investigatory Powers Act, which received Royal Assent as recently as 29 November 2016.  Aspects of the new regime which may require amendment (most likely by statutory instrument under the European Communities Act 1972) are the circumstances in which prior independent authorisation is required of requests to access communications data, and the range of purposes for which communications data can be accessed: see Part 3 of the Act.

My take on the new Investigatory Powers Act is here.

A curiosity of this case is that one of the claimants who requested a ruling from the CJEU, David Davis MP, is now the Government Minister in charge of the Department of Exiting the European Union.  He had his name removed from the case on his appointment to the front bench.