‘You have children together but your marriage is fake’: Marriages of convenience, UK courts and EU free movement law

Aleksandra Jolkina, PhD in Law, Queen Mary University of London

 

Over the past two decades, the UK authorities have grown increasingly suspicious towards in-country marriages between mobile EU citizens and third-country nationals with an unstable or irregular residence status. In a widespread climate of Euroscepticism, such arrangements are frequently denounced as ‘marriages of convenience’, entered into to help foreigners circumvent British immigration law. This contribution will consider how the concept of marriages of convenience is interpreted by UK courts, what implications this may have for families of EU citizens living in the country and how the situation will change post-Brexit.  

Background

The underlying reason for the UK government’s concerns about the perceived abuse has been the growing gap between two sets of rights - the EU Citizenship Directive, on the one hand, and restrictive British immigration law, on the other. Since the beginning of free movement, every EU citizen was provided the ability to reside in the host Member State with his or her spouse, irrespective of the latter’s nationality. The central logic behind these rules is that the absence of such a right would create obstacles to EU citizen’s relocation to another Member State, as well as hinder their integration into the host society.

The generous EU approach, however, soon began to sharply contrast with the relevant developments in UK domestic family reunification law. Seeking to limit the number of TCN family migrants who could not be selected in the same way as foreign labourforce, the UK significantly tightened up the rules for admission of family members of British nationals and settled persons.

In 2012, the UK introduced the so-called ‘minimum income requirement’ for their own nationals who wished to live in the country with their TCN spouses. To sponsor a foreigner, one now needs either to have significant savings or earn at least £18,600 per year (plus extra for sponsoring children), a threshold that is impossible to meet by a large share of the UK’s adult working population. Apart from that, the couples are required to provide extensive evidence that their relationship is ‘genuine and subsisting’, such as joint rental or mortgage agreements, utility bills, bank statements, photos or correspondence.

Furthermore, the ‘no-switching rule’, introduced with a view to tackling marriages of convenience involving UK citizens, prohibits non-EU nationals with short-term leave to remain from switching to the marriage category within the UK and requires them to leave the country and apply from abroad. The burden of proof in family reunification cases rests with the applicant, and, unless a human rights claim is made, the negative decision of the Home Office is not subject to appeal.

Meanwhile, family members of mobile EU citizens obtain residence rights in the UK automatically without having to leave the country or satisfy any additional requirements. As held in the CJEU judgment in Metock, this principle applies even if the non-EU party was previously irregularly present in the relevant Member State.

Since the restrictive domestic measures could not be applied to Indian or Albanian spouses of Polish or Spanish nationals, the UK government began to denounce the Citizenship Directive as a ‘loophole’ enabling otherwise undesirable non-EU nationals to regularise their status via marriages of convenience. This discourse is backed up by often sensationalist media reports exposing ‘the world of fake marriages’ where vulnerable Eastern European women are claimed to be exploited by marriage ‘fixers’ and third-country national men.

UK case-law analysis

Although the Citizenship Directive permits Member States to derogate from free movement rights in cases of abuse, such as marriages of convenience, this concept is defined narrowly, and the relevant provision is to be interpreted strictly. The present contribution briefly outlines the main findings of my study on how the issue is approached by UK courts – in particular, whether and to what extent the concept of marriages of convenience is interpreted in conformity with EU law.

To answer this question, I have conducted an analysis of 110 recent Upper Tribunal (UT) Immigration and Asylum Chamber decisions in cases where TCN spouses of mobile EU citizens were previously refused entry or residence in the UK on the grounds that their marriage was found to be one of convenience. The rulings examined were delivered between July 2016 and July 2019 and selected using the keywords ‘marriage of convenience’ or ‘sham marriage’ in conjunction with ‘EEA’. In addition, I have explored several high-profile cases on the issue, delivered by the former Asylum and Immigration Tribunal, the Court of Appeal, the High Court of England and Wales, and the Supreme Court.

Although my study focuses on First-tier Tribunal (FtT) decisions brought on appeal, the number of judgments analysed has made possible not only to provide a comprehensive overview of the UT approach to the issue, but also to identify the most problematic practices of lower courts. The key issues that arise in this context are outlined below.

Definition of marriages of convenience

One of the most problematic aspects is the definition of marriages of convenience. The crucial constraint on the concept, which is imposed by both the Citizenship Directive and the CJEU, is the narrow ‘sole purpose’ test. It implies that the acquisition of a residence status must be the only aim of the marriage, rather than one among many.

In other words, the term ‘marriages of convenience’ under the Directive shall be understood as purely artificial arrangements having no content other than an immigration motive. This is logical, given the fact that the state typically privileges marriage when it comes to family reunion and many couples get married just to be able to lead a family life in one country, its choice often affected by various factors, including economic ones. The fact that an immigration advantage may be a consequence of marriage or even the principal motive for it does not mean that that the parties do not intend to lead a family life.

The analysis of case-law suggests that very few judges attempt to establish a legal definition of marriages of convenience. This, in turn, undermines legal certainty and frequently leads to adverse outcomes. Those who do attempt to define a marriage of convenience, however, often struggle with providing a correct definition of the phenomenon in the context of the EU free movement law.

In numerous situations FtT judges appeared to be unaware of EU law and erroneously relied on the domestic immigration law instead, requiring the marriage to be ‘genuine and subsisting’. Yet even where the judges rightly focused on the position at the point of entry into marriage, the ‘sole purpose’ definition was frequently substituted by the ‘primary purpose’ approach, which is inconsistent with EU law. In two High Court judgments (Molina and Seferi & Anor), this has even led to a paradoxical finding that a marriage of convenience may be entered into by a couple in a genuine relationship.

Burden of proof

Another key issue concerns the establishment of the burden of proof. Under EU free movement law, systematic checks of marriages are prohibited, and the burden of proof of identifying marriages of convenience rests with the national authorities.

To begin with, it has long been confirmed by UK courts that the legal burden of proof in EU cases lies with the Home Office. A line of rulings can be distinguished in this regard, starting from the much-quoted UT decision in Papajorgji, delivered in late 2011, and ending up with the more recent Supreme Court judgment in Sadovska. In many cases, however, the FtT wrongly refers to the domestic immigration provisions instead and/or requires an applicant to demonstrate that their marriage is ‘genuine and subsisting’, claiming that the burden of proof lies on the non-EU national involved. In such situations, the Upper Tribunal normally allows the appeal.

Yet even where the judges do show awareness of the relevant case-law, the application of the test in practice appears problematic. In a number of judgments, FtT considered that in cases of ‘well-founded’ suspicions, the legal burden of proof rests with the non-EU national. In several cases, such decisions were set aside by the UT; yet there are disappointing examples when the Upper Tribunal did concur with the FtT.

In the case of Ahmed, the FtT judge found that a marriage was one of convenience inter alia because she considered the appellant’s lack of knowledge about his wife’s family was inconsistent with that ‘normally expected of a husband’. This is a highly normative and subjective position that was rightly criticised by the UT, particularly given that the wife explained that they did not talk about her father or brother due to ‘abuse issues during her childhood’. The appeal was consequently remitted to the FtT for re-hearing.

In Habib, both tribunals drew adverse inferences from the fact that the couple had a joint bank account and bills in joint names, opining that it was ‘part of a package’ to convince the Home Office that their marriage was genuine. In Jamil, the UT judge commented that a marriage that lasted for three years was ‘on any way brief’. This, together with other questionable evidence, made him believe it was one of convenience. In a number of cases, the FtT dismissed the claims inter alia on the grounds of their biased assessments of the photographic evidence. The judges tend to complain about the low number of photographs submitted or label them as ‘staged’. As a result, couples may feel pressured to take many pictures together even if they would not do so in normal circumstances, and then risk being considered not ‘genuine’ because of showing either too much or too little affection.

Furthermore, some judges placed significant weight on cultural differences between the spouses, a highly discriminatory position that is in no way linked to the purpose or content of the marriage. As the UT reasonably argued in Nasreen, it was unclear why the FtT judge doubted that a Bangladeshi-Italian couple developed a relationship at a takeaway restaurant where he worked, and she was a customer, and they found they had a lot in common despite their different backgrounds.

Likewise, judges tend to act as language and communication experts, evaluating the parties’ language skills and their ability to converse. In one case, the FtT judge dismissed the appeal on the grounds that the appellant’s responses to the questions were ‘incredibly vague’ and the English of the principal – ‘wholly inadequate’. This led the judge to conclude that the spouses were unable to converse, a finding also accepted by the UT. In another case involving a Pakistani-Portuguese couple, the FtT found that the marriage was one of convenience because the couple gave inconsistent evidence and the wife spoke ‘very little’ English, a finding that paradoxically outweighed the fact that the couple had a son. Although the wife said in evidence that her husband spoke very slowly to her, the judge held that ‘the level of the EEA sponsor’s knowledge of English is so low that a meaningful communication and conversation cannot be held between them’, as well as erroneously relied on the ‘genuine and subsisting’ relationship test. The UT reasonably argued that it was unclear how the judge proceeded to receive evidence from the wife without an interpreter and ultimately held that his analysis was ‘tainted by legal error on the grounds of perversity’.

Focus on cohabitation and/or present state of the relationship

The issue of the evidential burden of proof is closely linked to another problematic approach adopted by the courts. When performing marriage checks, Member States must respect a key principle established by the CJEU. As the Court held in Diatta and Ogieriakhi, as long the marriage is not officially terminated, the TCN spouse continues to benefit from the Directive even where the parties do not live together under one roof or are no longer in a relationship. The CJEU approach is reasonable, for it is not for the state authorities to decide how the spouses should arrange their marital life or make judgments on the quality of their relationship.

However, in their case-law, UK courts rarely show awareness of the relevant CJEU rulings. Instead, tribunals tend to dwell extensively on the current nature of the relationship, placing the main focus on cohabitation as evidence of its genuineness.

In several cases, the UT upheld the decision of the Home Office in concluding that the appellant’s marriage was one of convenience. For instance, in Gjana, both tribunals reached this conclusion because the EU citizen spouse went for a holiday to her home Member State. The FtT judge, in particular, considered it ‘noteworthy that she went for the month and not a shorter holiday so that she could spend time with her husband’ and placed weight on the fact that it happened shortly after the couple moved into the same accommodation. In the view of the judge, this suggested that ‘her family visit was of more importance to her and undermine[d] that claim that this is a genuine relationship’. This view was also upheld by the UT. Such an approach is striking in its subjectivity and clearly breaches EU law – both the evidential burden test and the CJEU case-law in Diatta and Ogieriakhi.

Another problematic category of cases is those where the relationship has deteriorated, or the spouses have chosen to maintain separate accommodation due to their work arrangements. In De Vera, the Home Office refused to grant the TCN spouse a residence card after not having encountered the couple at their declared home address. During the hearing, the FtT judge placed weight on the fact that the appellant had said that she lived ‘on and off with her husband’, as well as expressed surprise by the fact that she was working in Essex, some distance from their marital home in the London borough of Hounslow. Although she did return to Hounslow for four days a week, the judge claimed that such an arrangement was ‘wholly inconsistent with the appellant and her husband being a young couple who wish to spend their lives together in a genuine marriage’, suggesting that she should have been able to find a job nearer to where she lived in London. This finding was rightly dismissed by the Upper Tribunal as purely speculative, particularly in view of the explanation of the appellant about the difficulty of finding work and accommodation. The marriage was ultimately found not to be one of convenience. Yet, although the UT rightly dismissed the erroneous conclusions of the FtT by reference to the extensive evidence produced by the couple, it did not refer to the CJEU case-law which would have further strengthened its argument.

In a number of cases, a residence permit was revoked on the sole basis that the Home Office found that the spouses had separated, but their divorce was still pending. In Iqbal, the relevant Home Office decision was subsequently upheld by both the FtT and the UT. In some cases, however, the UT has rightly confirmed that even if the couple is estranged, under EU law, the status of a family member might only change with divorce.

Cases involving children

One of the most controversial group of cases involve pregnancy and childbirth, factors which make the finding that a marriage is one of convenience particularly problematic. Out of the 110 UT judgments analysed, 12 (over 10 per cent) involved marriages where the FtT did not accept these factors as evidence of their genuineness; in four of them, the UT concurred with the FtT assessment.

In some cases involving children, the judges wrongly approached the issue of the burden of proof and applied an incorrect definition of marriages of convenience. In Rehman, the FtT wrongly stated that there was an evidential burden on the claimant to address reasonable suspicions, and also wrongly referred to the ‘predominant purpose’ test. The judge then upheld the Home Office finding that the marriage was one of convenience; in the view of the FtT, the fact of childbirth could not alter this conclusion, given the non-EU national spouse’s ‘continued dishonesty’ (he was considered not truthful concerning his studies). The UT considered this reasoning flawed. In Virk, the Home Office concluded the marriage in question was one of convenience despite the pregnancy of the EU principal who was subjected to intimidating and intrusive questioning. The appeal was consequently dismissed by the FtT. The UT held that the FtT judge misapplied the burden of proof test by failing to address significant concerns by the couple as to the conduct of the interviewer and not giving weight to their explanations of the discrepancies. The decision was ultimately set aside.

In Gjura, the FtT went as far as to suggest that the non-EU spouse fathered a child solely to obtain an immigration status. This finding seems even more disturbing, provided that the judge did accept that both parties were involved in the upbringing of the child. It nonetheless placed weight on other factors, such as ‘scant evidence’ of the couple living together, their perceived inability to easily communicate when they first met, and the fact that they gave different addresses to the registrar when recording the birth of their child. It is remarkable that the FtT findings were upheld by the UT, which considered that the ‘main’ purpose of marriage was to obtain an immigration advantage.

In a similar case of Khan, the FtT accepted that the non-EU national involved was a ‘caring and loving parent’ of his child, yet concluded that the marriage was one of convenience because of his ‘dreadful’ immigration history and several discrepancies identified in the marriage interviews. The judge strikingly noted that the appellant had ‘further sought to strengthen his position in the UK by conceiving a child with the sponsor’ and expressed doubts that his intentions had been ‘honourable or genuine’. The UT rightly concluded that the FtT did not carry out a balanced assessment of all the evidence, focusing on the negative and failing to give due weight to the positive factors. The decision was therefore set aside.  Moreover, in a number of cases, the judges questioned the paternity of the child conceived during the marriage, contrary to the presumption in English family law.

What happens after Brexit?

Given the importance of the fundamental EU rights at stake, I argue that national authorities should attempt to take every precaution to minimise the risk of an erroneous decision and state intrusion into the lives of EU citizens. This, however, does not seem to be a perspective endorsed by the British government and courts. The validation of the hostile Home Office practices by so many judges is deeply disturbing. The adverse decisions, most of which have been delivered in breach of EU law, created hardship for couples involving EU citizens, and as a consequence, may have seriously hindered the latter in exercising their free movement rights. Of course, this can be partly explained by the lack of education and training of the UK judiciary on the relevant aspects of EU law. Notwithstanding that, it also calls into question the good faith of the judges who rely on their biased and discriminatory assumptions to disrupt the family life of EU citizens instead of facilitating it.

The post-Brexit developments in the UK give little reason for optimism. In essence, the British government has ultimately succeeded in its endeavours to deprive EU citizens of the generous family reunion rights guaranteed to them under EU law. The end of the transition period on 31 December 2020 has effectively created two groups of EU citizens who are now covered by separate sets of rights.

Nationals of EU Member States who move to the UK after this date fall into the scope of British immigration law. By contrast, those who were living in the UK before 31 December 2020 will continue to enjoy their residence rights on the same terms and under the Citizenship Directive. The same rights are reserved for their non-EU spouses, provided that the latter were already living in the UK on the basis of the Treaty provisions by the end of the transition period and continue to do so thereafter. Foreign spouses who were residing outside the country by the cut-off date can also join the EU principal on the condition that their marriage was registered before 31 December 2020 and is still valid. Such guarantees are provided to this group by the EU-UK Withdrawal Agreement (as discussed here), incorporated into the British law by the Withdrawal Agreement Act, discussed here. All beneficiaries of the Act are required to make an application under the so-called EU Settlement Scheme, designed to confirm their status.  

This, consequently, means that in the next few years British courts will continue to deal with appeals brought by TCN spouses of EU citizens covered by the Act. It is expected that this type of cases will mostly concern applications for pre-settled or settled status or retained right of residence following divorce.

Families of EU citizens covered by the Act will also continue to benefit from EU law safeguards the states must respect when targeting perceived marriages of convenience. It, however, remains to be seen how these rules are implemented in practice. My case-law analysis has shown that UK courts frequently struggled to differentiate between mobile EU citizens and British nationals already, long before the UK left the EU. Creating an additional distinction between EU citizens benefiting from the Act and those equated to full-fledged foreigners is thus likely to add further confusion, eventually resulting in erroneous decisions and disruption of the families involved.

Barnard & Peers: chapter 26

Art credit: Pierre-Marie Bayle, The Wedding Procession

EU Motor Insurance Law in the UK: Accidents on the road and responsibilities off it

James Marson (Reader in Law, Sheffield Hallam University), Katy Ferris (Assistant Professor in Business Law, Nottingham University Business School) and Neil Fletcher (Senior Lecturer, Sheffield Hallam University)

Introduction

Remedies for a Member State’s breach of EU law includes liability in damages. State liability has experienced notable successes in UK jurisprudence, but, generally, has also demonstrated limitations in holding the State to account for losses suffered by individuals. Establishing a ‘sufficiently serious’ breach of the law is frequently the limiting factor. However, in motor vehicle insurance law several state liability successes have been achieved, principally due to the UK’s flagrant breach of the Motor Vehicle Insurance Directives (MVID). The UK’s transposing laws in this area include provisions in the Road Traffic Act 1988 (RTA88) and two agreements concluded between the UK and the Motor Insurers’ Bureau (MIB) - the Untraced Drivers Agreement 2017 and the Uninsured Drivers Agreement 2015 (along with its Supplementary Agreement 2017). The UK has been, and continues to be in breach of both Agreements. There are also aspects of the RTA88 where English law has not caught up with developments in the MVID. The most recent breach has been the requirement, established in the 2014 judgment of the Court of Justice of the European Union (CJEU) in Vnuk, that vehicles used exclusively on private land are subject to compulsory third party motor insurance. The MIB has, since the ruling, rejected the view that compulsory insurance extends to vehicles on private land. However, the High Court has recently ruled in Lewis v Tindale that the CJEU decision must be applied in the UK despite the restrictive wording of the RTA88.

The Lewis ruling applies until Brexit day when, if the UK leaves without an agreement to remain in the Single Market, national law will lawfully be able to retain its literal and restrictive reading of the RTA88. Contrasting approaches, and the inconsistency present in the interpretation of the RTA88 through national courts, can be seen in the most recent case on the subject. In R & S Pilling v UK Insurance the Supreme Court considered the issue of the ‘use’ of a vehicle. Whilst its conclusion was reasonable and pragmatic in the circumstances of the case, the decision of the Supreme Court was interesting in its refusal to apply EU law and to extend the reading of the RTA88. This, we have argued previously, would be possible without a breach of national law, and indeed according to EU law, is a requirement of national courts. The ruling did lead Lord Hodge, providing the only judgment, to remark that in relation to accidents on private property, national law must apply despite an expansive interpretation being provided by the CJEU. Lord Hodge did continue, however, that those CJEU rulings did ‘demonstrate a need for Parliament to reconsider the wording of section 145(3)(a) of the RTA to comply with the Directive.’

Given the UK’s reluctance to comply with EU law in this area, Brexit will remove many crucial protective rights enjoyed by third party victims of motor vehicle accidents. The only safeguard against the UK’s continuing breach of EU law is membership of the EU. There are so many breaches of the law (some highlighted in the Roadpeace case and accepted by the High Court, others dealt with in cases including Delaney v Pickett at the Court of Appeal) that those protections that should be available at present, but which are not, will never be achieved once Brexit has been concluded. Further, the remedy which has at least provided some scope for redress, state liability, will also be lost following the UK’s withdrawal from the EU.

Motor Vehicle Insurance Extending its Reach?

It is well known that under English national law owners must possess, as a minimum, third party motor vehicle insurance. This applies to vehicles used on a road or other public place. For the purposes of the law, a public place includes campsites and caravan parks, pay and display car parks, and even dockyards. This seems reasonable. If you use a motor vehicle in a place where people may visit and share the facility with you, for everyone’s safety its owner should ensure there is insurance coverage in case of injury following an accident. The law of England (the Road Traffic Act 1930 being the inspiration for the First MVID) originally made provision for insurance to be held for vehicles used on a road. This was then, begrudgingly, extended through amendment of the RTA88 to include those ‘public places’ (as mentioned previously) following a decision of the Court of Appeal. However, the courts rejected the application of compulsory insurance to vehicles used exclusively on private land (vehicles used, for example tractors on farm land, which did not travel on a road or other public place). However, in late 2018, the High Court ruled that the requirement for compulsory motor insurance does now apply to vehicles used exclusively on private land.

The European Union Interpretation

In its 2014 judgment in Vnuk, the CJEU held that a farmworker in Slovenia could claim compensation when he was injured as a result of the negligent driving of a tractor and trailer. This was despite Slovenian law not requiring such vehicles to be insured (here the tractor was used exclusively on the farm and was never used on a public road). Slovenia considered that the term ‘vehicle’ in its laws did not include a tractor for the purposes of its statutory interpretation. The Court of Justice considered that in reference to the MVID, the phrase ‘use of vehicles’ (Art 3(1)) meant any use of a vehicle consistent with its ‘normal function.’ Thus the requirement for which ‘vehicles’ are, across the EU, subject to compulsory insurance was significantly widened.

The issue relating to the requirement to insure vehicles on private land is not new (the Vnuk judgment having been issued in 2014). In 2006 two cases heard in references by courts in Portugal addressed this issue. In the first (Juliana), a driver killed himself and his two passengers whilst using his mother’s (Mrs Juliana’s) car. The vehicle had been taken without the mother’s consent. The insurance cover had lapsed following the deterioration of the mother’s health and, whilst it was still registered under the mother’s name and in working condition, it had been stored on private land. Given the lack of insurance, the Portuguese national insurance body paid the compensation due to the victims’ families and then brought civil proceedings against Mrs Juliana, as owner of the vehicle, to recover its costs. The case before the CJEU was whether a vehicle, kept on private land and not intended to be used, was subject to the requirement to be insured.

The second case (Andrade) involved the use of a tractor, stationary at the time of the accident, but being used to spray herbicide. The tractor slipped down a hill in a vineyard - having itself caused a landslip - and this led to an employee working at the site being crushed to death. The Portuguese law only required insurance to cover accidents caused by the movement of the vehicle. The CJEU was called upon to address the issue of whether EU law necessitated the insurance of vehicles even when they were stationary but with the engine running.

In Juliana, the CJEU, issuing its ruling in late 2018, held

a vehicle which is not formally withdrawn from use and which is capable of being driven must be covered by motor vehicle insurance against civil liability even if its owner, who no longer intends to drive it, has chosen to park it on private land.

This was a reasonably foreseeable interpretation of the law. In Andrade, decided in 2017, the CJEU looked again at Vnuk and the determination of the ‘use of vehicles’. It reiterated the concept of a vehicle’s ‘use’ but also explained that such a concept was not dependent on the characteristics of the terrain where the vehicle is used. It further included any use of it as a means of transport (whether stationary, moving, its engine running or off). On the issue of where a vehicle may be used as both a means of transport and a machine for the purposes of carrying out work, it had to be determined if, at the time of the accident, it was being used principally as a means of transport.

In Andrade, it was not contested that the tractor, when used normally as a means of transport, was a ‘vehicle’. Instead, the CJEU considered that at the time of the landslip the tractor was not a ‘vehicle in use’ as it was not being ‘used principally as a means of transport.’ This was because its engine was not being used to create power to provide transport but instead to ‘drive the pump of the herbicide sprayer.’

The CJEU concluded that damage caused by vehicles which are also intended to be used as machines for carrying out work must only be covered by compulsory motor-vehicle insurance against civil liability when such vehicles are being used principally as a means of transport. Accordingly, the widower of the deceased was unable to recover compensation from the motor-vehicle insurers of the tractor.

English law has not caught up with the Vnuk ruling through changes to the RTA88. The protection of third-party victims of non-road registered vehicles (such as quad-bikes or vehicles used in purely agricultural, construction, industrial, motor sports or fairground activities) remain beyond the scope of compulsory insurance. Many of these vehicles are being used for the purposes of transport, and not necessarily for work (although it is important to note that the MVID do not impose a requirement of the use of vehicles for transport and presumably further cases will be needed to determine ‘work’ and ‘transport’ – motor racing for instance). The EU and national laws in this respect are, as a consequence, misaligned and this is significant. The UK Department for Transport does not report on statistics of accidents occurring on private land involving motor vehicles. What has been reported upon in the UK Parliament is the consequence of this omission for the possible prosecution of individuals who evade current laws – such as driving whilst under the influence of alcohol.

The UK Approach

English law is clear on the requirement for third party victims of motor vehicle accidents to be protected. Not only was the original Road Traffic Act the source of inspiration for the first MVID, the UK has a compensatory body (the MIB) established to satisfy claims where the at-fault driver is not insured or cannot be traced. The UK does permit some vehicles to use a road or public place without insurance. Such exclusions are, of course, very limited and typically apply to those owned and used by a State body and thus would have recourse to funds to satisfy claims by the victims of accidents. Vehicles currently exempted from the RTA88 (through Art. 5 MVID) and its requirement to hold compulsory motor vehicle insurance will now fall within the category of ‘vehicles’ following Vnuk and will have to carry insurance. Further, the UK, under s.185 RTA88, provides a definition of the meaning of ‘motor vehicle’ which is too restrictive to comply with the MVID.

That there is clear direction from the CJEU as to the interpretation of an EU Directive, and Member States (even those subject to withdrawal) are required to consistently apply such an interpretation, has not stopped the UK courts from being dismissive of rulings they don’t like. To extend the issue of motor vehicle insurance in question for just a moment, consider the inclusion within the RTA88 of a list which, if used by an insurer in an attempt to exclude the cover of the policy, will be held void. This includes ‘matters’ such as the age of the vehicle, its weight or horsepower etc. Its aim was to stop insurers shirking their responsibilities to compensate victims of road traffic accidents. The list was a common sense approach to preventing insurers from escaping responsibility if, for instance, a car with five seats was involved in an accident whilst at the time containing six individuals (Houghton v Trafalgar Insurance Company, Ltd. [1953] 2 Lloyd's Rep. 18). Any third-party victims of an accident involving this vehicle should not find themselves unable to seek compensation because of such a transgression. However, in EUI v Bristol Alliance Partnership the Court of Appeal interpreted this provision restrictively and held the list as exhaustive. Hence any exclusion not expressly contained in s. 148(2) RTA88 was, by definition, permissible under English law. This granted significant scope to motor insurers to escape responsibilities outside of the s. 148(2) list.

This is particularly worrisome due to the jurisprudence of the CJEU on this issue, and which was available to the Court when making its judgment. The CJEU had in Bernaldez, Correia Ferreira v Companhia de Seguros Mundial Confiança SA, Candolin v Vahinkovakuutusosakeyhtio Pohjola, Farrell v Whitty, and Churchill v Wilkinson and Tracey Evans been consistent that there exists only one permissible reason for excluding a third party’s right to claim against a policyholder’s insurers. This is where the third party knew (and this knowledge may not be inferred) that the vehicle in question was stolen. The CJEU purposively interpreted the list of void exclusions provided in Art.2(1) of the Second MVID (now contained in Art.13(1) of the Sixth MVID) as being illustrative. This allowed for the extension of the scope of the civil liability insurance requirements contained in Art.3(1) of the First MVID.

This is but one example of an inconsistent approach to the interpretation and application of EU law and principles by English courts. Some are favourable to a consistent application of EU laws (see Allen v Mohammed and Allianz Insurance (2016), Lawtel, LTL 25/10/2016) whilst others, heard at the same time but in a different part of the country, are not and adhere steadfastly to national provisions.

This lack of consistency and legal certainty left the implications of the Vnuk ruling, along with effects of Brexit hanging over the legal system, in a state of paralysis. At least until towards the end of 2018.

‘New’ Rights and Obligations in 2019?

In September 2018, the High Court delivered its judgment in Lewis v Tindale where the claimant suffered very serious injuries having been run over by a driver on private land. The driver of the vehicle was uninsured and therefore the claimant had to seek compensation from the MIB. The MIB acts as the insurer of last resort and a percentage of every motor policy-holder’s insurance premium is paid into its funds to satisfy claims. The High Court considered the MIB to be an ‘emanation of the State’ and therefore subject to the requirements of EU law – beyond what national law may provide. A consequence of the judgment is that the MIB is responsible for compensating the third-party victims of motor vehicle accidents occurring on private land and, where it refuses due to adherence to the RTA88, will be subject to state liability claims and the vertical direct effect of the MVID. This situation is likely to be untenable and thus legislation will be necessary – if for no other reason than to prevent the MIB being called upon to satisfy claims. As mentioned previously, insurance will also extend to a whole new suite of vehicles which previously have never been required to possess liability cover.

It also calls into question the role that the police will have to enforce the cover of vehicles which are not on the road or necessarily subject to regulation (as applies to vehicles which access roads and public places). It will allow for prosecutions of drivers of vehicles where injuries (and deaths) have occurred on private land but are, at present, excluded from the scope of criminal sanctions. Further, the requirement for compulsory insurance means that at present those vehicles in public places are subject to the rules relating to the use of a vehicle. This is to be insured and a criminal offense is committed by the owner allowing the car to be uninsured. This should now be applied to private land. This indirect consequence of Vnuk and Lewis may give greater protection to vulnerable pedestrians and improve safety measures which seem to have a loophole in protection. However, as Lewis does not include use of a vehicle for ‘work’, it will bypass the Andrade hurdle relating to compulsory insurance. That being said, clearly the vehicle’s use as ‘transport’ was surely merely ancillary to its main purpose for catching and injuring the victim. Thus, is this the normal use of a vehicle (Vnuk)? Is the vehicle being used as a means of transport (Andrade)? There are perhaps bigger questions to this case than covered by the High Court.

At the very least, the law as developed through Vnuk is due to be clarified by the Court of Appeal when the case is heard in May 2019. The UK’s future relationship with the EU will also largely determine what happens next. If the UK remains in the EU, or strikes a deal to remain in the Single Market, then owners of motor vehicles will be required to have these insured against third-party liability. If the UK leaves or, for instance, establishes a deal with the EU on the basis of a Customs Union arrangement, this may be an area which is changed under the Government’s plans post-Brexit.

Whatever the eventual outcome, at the EU level and through the ruling of the High Court, whether driving a buggy on a golf course, or perhaps even a fork-lift truck (until Vnuk and Andrade are reconciled), you as the owner of the vehicle should possess liability cover. In its absence, the MIB will have to settle compensation claims. Either way, insurance premiums will be affected.

Photo credit: Insurance Times

Data Retention incompatible with EU law: Victory? Victory you say?

*Photo credit: https://www.beencrypted.com/  

Matthew White, PhD candidate Sheffield Hallam University

Introduction

On 27 April 2018, the High Court in Liberty v Secretary of State for the Home Department and Others [2018] EWHC 975 (Admin) ruled that Part 4 (retention of communications data) of the Investigatory Powers Act 2016 (IPA 2016) was incompatible with the European Union’s (EU) Charter of Fundamental Rights (CFR). They did so in holding that access to retained communications data was not limited to the purpose of serious crime, and it was not subject to prior review by a court or an independent administrative body. Liberty regarded this ruling as a landmark victory for privacy rights. This blog post questions this assertion by critically analysing the High Court’s judgment with regards to the specific aspect of data retention.

Ignore the European Convention on Human Rights at your peril:

In the second paragraph of the High Court’s judgment, it was acknowledged that the judicial review proceedings concerned not only the CFR but the European Convention on Human Rights (ECHR). The High Court, however, proceeded to only consider the former. This omission will become more important throughout this post.

Does not concern the content of communications?

The High Court acknowledged that retention notices under s.87(1) of the IPA 2016 affects a wide range of private information to do with communications, but not their content e.g. emails and texts [3]. Emails and texts are of course, but one example of content, however, some argue that communications data are equally (Elisabet Fura and Mark Klamberg, ‘The Chilling Effect of Counter-Terrorism Measures: A Comparative Analysis of Electronic Surveillance Laws in Europe and the USA’ (2012) Wolf Legal Publishers, Oisterwijk 463, 467) or more revealing (Alberto Escudero-Pascual and Gus Hosein, ‘Questioning lawful access to traffic data’ (2004) Communications of the ACM 47:3 77, 82). This is precisely why the UN Office of the High Commissioner for Human Rights (OHCHR) felt such distinction is no longer tenable (para 19). It was even demonstrated by iiNet that content is embedded in communications data in sites like Twitter and Facebook.

Moreover, the High Court considered s.87(1) of the IPA 2016 in isolation to, for example, s.87(4)(d) which prevents retention notices from requiring telecommunications operators to retain data which is not used by them for any lawful purpose. Lawful purpose is not defined in the IPA 2016, but s.46(4)(a) of the IPA 2016 allows (by regulation, s.46(1) and (2)) any business to conduct interception if it constitutes a legitimate practice reasonably required for the purpose, in connection with the carrying on of any relevant activities for the purpose of record keeping. Section 46(2)(b) includes communications relating to business activities, and this could allow interception for ‘business purposes.’ This would square with the Home Office’s position in 2009 where they noted that deep packet inspection (DPI) ‘is a term used to describe the technical process whereby many communications service providers currently identify and obtain communications data from their networks for their business purposes’ (p15). DPI enables Internet Service Providers (ISPs) to access information addressed to the recipient of the communication only, this requires the interception of communications data and content (para 32). This could legitimise practices such as those that occurred in the Phrom scandal where BT, TalkTalk and Virgin Media made a deal with Phorm to covertly intercept traffic of their customers. Whether it does or does not permit Phorm-like activities, is not the pressing issue at hand, it’s the allowance of intercepted data to be retained (para 125, p1104) which would constitute a lawful purpose under s.87(4)(d) of the IPA 2016. This highlights that the High Court’s focus on s.87(1) blinds them to the realities of communications data being just as, if not more serious than content, and in any event, content could be retained.

Appropriate remedy and the potential chaos that could ensue?

The High Court highlighted the dispute between the Defendants and the Claimants as to the appropriate remedy, where the former felt no more declaratory relief was necessary [32] because it was already conceded that elements of Part 4 were inconsistent with EU law [31], [38]. There was also a dispute as to the period of suspension should the High Court disapply Part 4 [32]. Despite this acknowledgment of the Defendants, they were of the position that Part 4 should continue as it currently is until it is amended by Parliament [40-1]. The Claimants advocated for a suspended disapplication, this for the High Court:

[W]as a realistic and fair acknowledgement that, in this context, it cannot reasonably be expected that there should, immediately, be no legislation at all in place allowing retention of data that is needed to apprehend criminals or prevent terrorist attacks [42].

The High Court noted that whatever remedy it granted, it should not have the effect of ‘immediately disapplying Part 4 of the 2016 Act, with the resultant chaos and damage to the public interest which that would undoubtedly cause in this country’ [46]. The use of ‘chaos’ was in reference to the Defendants who argued that disapplication was a recipe for chaos [75].

A reason why the High Court preferred not to disapply Part 4 immediately was because there would be no data retention laws in place to aid in the fight against crime and terrorism. This is not actually true, the Budapest or Cybercrime Convention has had legal force in the UK since 1 September 2011. This mainly concerns crimes committed via computer networks, but Article 14(2)(c) allows the UK to adopt measures to collect evidence in electronic form of a criminal offence. This does not appear to limit offences to those described in Articles 2-11. Moreover, Article 16 provides for data preservation, which is the alternative to data retention. This is not the only option available to the UK as discussed below. The High Court’s position is essentially a strawman because immediate disapplication was not argued, and in any event, would not be true if Part 4 were to be disapplied.  

The High Court refers to ‘chaos’ and ‘damage’ to the public interest without explaining why and in what ways this would be possible by disapplying Part 4. The language used by the High Court needs to be critically analysed. Prior to the Data Retention and Investigatory Powers Act 2014 (DRIPA 2014), communications data retention had been voluntary under s.102(1) of the Anti-terrorism, Crime and Security Act 2001 (ACTSA 2001), though the Data Retention (EC Directive) Regulations 2007 and 2009 required data retention to a lesser extent. Previous attempts at mandatory data retention, notably the draft Communications Data Bill (dCDB) in 2013 was halted by the then Coalition partners to the Conservatives, the Liberal Democrats. There was no chaos, or damage to the public interest prior to DRIPA 2014, when data retention was voluntary nor when the dCDB was rejected. When the High Court in Davis and Others v Secretary of State for the Home Department and Others [2015] EWHC 2092 (Admin) dispplied s.1 of DRIPA 2014, albeit delayed for eight months [122], they felt it appropriate to give Parliament enough time to scrutinise and pass new laws[121], and not because of the chaos and damage that would ensue due to immediate disapplication.   

The High Court’s position seemingly acts upon the assumption that if data retention obligations are immediately disapplied, there would be no communications data to be accessed. This is simply not the case when one considers one of the biggest telecommunications operators in the world, Google, who store ‘your phone number, calling-party number, forwarding numbers, time and date of calls, duration of calls, SMS routing information and types of calls.’ The legal basis of this is questionable, but the fact remains, such communications data could still be accessed under s.61 of the IPA 2016 where a designated senior officer of a relevant public authority could obtain communications data, whether it exists at the time or not, meaning they could require a telecommunications operator to retain communications data on an forward looking basis (para 177). This authorisation process is however, subject to change, requiring authorisation by the Investigatory Powers Commissioner, but the fact remains, the power is unchanged. Moreover, Part 6, Chapter 2 of the IPA 2016 allows for the bulk collection of communications data by intelligence services.

The High Court referred to the Government swiftly enacting DRIPA 2014 [12]. What they did not mention was that following Digital Rights Ireland and the Court of Justice of the European Union’s (CJEU) invalidation of the Data Retention Directive (DRD), the Government did nothing for three months. The High Court in Davis and Others noted there was not a clear legal basis for the 2009 Regulations and thus some telecommunications operators were considering deleting retained communications data [45-6]. For three months, the Government must have known this was a possibility, but did nothing, then rushed DRIPA 2014 through Parliament with indecent haste in three days (Niklas Vainio and Samuli Miettinen, ‘Telecommunications data retention after Digital Rights Ireland: legislative and judicial reactions in the Member States’ (2015) International Journal of Law and Information Technology 23:3 290, 304).

Finally, the High Court refers to the ‘public interest’ without mentioning what aspects they mean. Is it the public interest in fighting serious crime and stopping terrorism? Even if this is what the High Court meant, they did so without acknowledging that privacy in and of itself is a public interest. This is specifically mentioned in s.2(2)(d) of the IPA 2016. Regan regards privacy as having public value because it is necessary to the proper functioning of a democratic political system (Priscilla M. Regan, ‘Legislating Privacy, Technology, Social Values and Public Policy’ (The University of North Carolina Press 1995). The then Labour Government even acknowledged that ‘that the protection of privacy is in itself a public service.’ Privacy is a prerequisite for liberal democracies because it sets limits on surveillance by acting as a shield for groups and individuals (Alan F. Westin, Privacy and Freedom, New York: Atheneum (1967), 24). Moreover, privacy underpins freedom of expression, religion, thought and conscious and assembly/association. Furthermore, privacy is not just an individual right nor does data retention just affects individuals. In Riddick v Board Mills Ltd [1977] QB 881, Lord Denning succinctly put it that:

The memorandum was obtained by compulsion. Compulsion is an invasion of the private right to keep one’s documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires [p896].   

This acknowledges the public interest privacy serves, and to assume this only applies to the objectives such as fighting serious crime and terrorism is to underestimate the fundamental nature and importance of privacy.

Not general and indiscriminate data retention?

The High Court when considering whether Part 4 of the IPA 2016 permitted general and indiscriminate data retention referred to the Court of Appeal’s refusal in to apply Tom Watson and Others v Secretary of State for the Home Department [2018] EWCA Civ 70 [22-6]. The Court of Appeal’s reasoning remains unconvincing and their semantic reasoning indicates what they would have held. The Claimants before the High Court argued that Part 4 permitted general and indiscriminate data retention, and thus should be referred to the CJEU, however the Defendants argued that reading the IPA 2016 as a whole, this is not the case [120].

The High Court towed the same line as the Court of Appeal in Tom Watson and Others where they noted that the CJEU were specifically referring to Swedish law [121]. The High Court then summarises their view of the CJEU’s ruling noting that Member States:

[M]ay adopt legislation which permits decisions to be taken for the targeted retention of data which is (a) sufficiently connected with the objective being pursued, (b) is strictly necessary and (c) proportionate [124].

The High Court were of the opinion that CJEU’s judgment did not require more detailed factors which may be relevant as to the application of those tests [124]. For the High Court, it would be impracticable and unnecessary to set out in detail in legislation the range of factors to be applied with matters such as national security, public safety and serious crime [124]. It must be noted that the issue of national security is a matter that will be dealt with by the CJEU based upon the Investigatory Powers Tribunal’s preliminary reference (analysis here).

Public safety, however, is not an objective that CJEU’s considers to be capable of justifying data retention, only serious crime [102], so it is unclear why the High Court even mentions this. The CJEU does refer to serious threats to public security, but this is in regards to the links between the measure and objective evidence [111]. The High Court also does not explain why it would be impracticable and unnecessary to set out in detail the range of factors to be applied, when the CJEU themselves observed that national law must be clear and precise [109]. Not only does this raise issues with the EU law, because the Part 4 does not provide clear and precise rules (Jennifer Cobbe, ‘Casting the dragnet- communications data retention under the Investigatory Powers Act’ (2018) Public Law 10, 19), but also with the ECHR. The ECtHR have ruled that it is essential to have clear, binding [60] and detailed rules, especially as the technology available for use is continually becoming more sophisticated [229]. The reason for the ECtHR’s position is explained in Szabo and Vissy v Hungary [2016] ECHR 579:

Given the technological advances since the Klass and Others case, the potential interferences with email, mobile phone and Internet services as well as those of mass surveillance attract the Convention protection of private life even more acutely [53].

What the High Court regards as unnecessary and impracticable are actually requirements of both European Courts, with the ECtHR taking that step furthering in explaining why.

The High Court then notes that the combination of the scope and application of data retention measures and the minimum safeguards are designed to achieve effective protection against the risk of misuse of personal data [125]. Granted, the High Court are repeating points made by the CJEU [109], this approach overlooks what the ECtHR have held:

The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8…The subsequent use of the stored information has no bearing on that finding [67].

The misuse of personal data is secondary to it actually being retained (and generated, see s.87(9)(b) of the IPA 2016). The High Court then distinguishes Swedish law from the IPA 2016 in that it does not require a blanket requirement requiring the general retention of communications data, because it relies upon the discretion of the Secretary of State [127]. This has already been argued to be a semantic argument ‘of distinguishing a catch all power, and a power that can catch all, which of course, in any event, amount to the same thing.’ The High Court also relies on the description that the Secretary of State will only exercise this power if it is considered necessary and proportionate, which for them, is in line with EU law [128]. But this position betrays their previous reasoning on DRIPA 2014, which had the same requirements of necessity and proportionality [47], with both parties and the High Court accepting this permitted a ‘general retention regime [65].’ A reason for this position was because the contents of a retention notice cannot be verified due to disclosure not being permitted, unless the Secretary of State permits it (see s.95(2)-(4) of the IPA 2016).

The High Court then argues that it would be difficult to conceive how the tests of necessity and proportionality could require the retention of all communications data due to the wording of ‘all data’ in the IPA 2016 [129]. This reasoning is problematic, because it relies upon the ‘surely the UK would not?’ position. As Lord Kerr observed in Beghal v Director of Public Prosecutions [2015] UKSC 49 that ‘is the potential reach of the power rather than its actual use by which its legality must be judged [102].’ This is precisely why Cobbe argues:

Retention notices may be tailored to an extent, including by requiring that only data which meets a certain description or is from a certain time period is retained. But s.87 does allow for ISPs to be required to retain "all data" indiscriminately, without differentiation, limitation, or exception, and without clear safeguards for data subject to professional confidentiality (Jennifer Cobbe, see above, 19).

As others and myself have argued, s.87(2)(a) and (b) theoretically allows for the possibility ‘all operators in the UK to be required to retain all data of users and subscribers’ (Matthew White, ‘Protection by Judicial Oversight, or an Oversight in Protection?’ (2017) Journal of Information Rights, Policy, and Practice 2:1, 26) and should be treated as a blanket and indiscriminate power (Matthew White, see above, 25; Jennifer Cobbe, see above, 18; ; Andrew D. Murray, ‘Data transfers between the EU and UK post Brexit?’ (2017) International Data Privacy Law 7:3 149, 161).

In Liberty v UK [2008] ECHR 568 the then UK Government accepted that s.3(2) of the Interception of Communications Act 1985 allowed:

[I]n principle, any person who sent or received any form of telecommunication outside the British Islands during the period in question could have had such a communication intercepted [64].

For the ECtHR, such a power was virtually unfettered [64], and violated Article 8 for not being in accordance with the law [70]. Furthermore, the High Court’s reasoning acts on the assumption that the only way Part 4 could be unlawful is if it did permit or made it possible for the retention of all communications data. This is simply not true as seen in the case of Liberty above, where this did not even concern communications within the UK, moreover in S and Marper [2008] ECHR 1581 the GC ‘ruled that general data retention, even on a specific group of individuals (suspects and convicts) violated Article 8.’

The High Court then also incorrectly claims that s.87(2)(b) of the IPA 2016 relates to a ‘description of data’ and not just to ‘all data’ [129] when the actual words are ‘any description of data’ which simply means any and/or all data could be retained. The High Court makes the same mistake with regards to telecommunications operators in that a retention notice may relate to a particular operator or to a description of operators [129] when, again the operative word in s.87(2)(a) is any description of operators. The suggestion here is that if a retention notice is issued on one telecommunications operator (because s.87(2) ‘list[s] the elements which may be used when delineating the content and scope of a retention notice so as to satisfy the necessity and proportionality tests in any particular case [129]’, this would be alright. If one uses BT as an example, with over nine million broadband subscribers, would a retention notice on BT to retain all this communications data sit well with the High Court? After all, BT is but one telecommunications operator, has a large subscriber base, but crucially not all of them, and the subscriber’s communications data does not amount to all the communications data that could be retained in the UK. In fairness, this is as much of the CJEU’s problem as it is the High Court’s, as this is where S and Marper makes a crucial distinction, that being, data retention measures that are general and indiscriminate within a group can still be unlawful.

The High Court then refers to the 12-month retention limit [130], but this only serves to highlight the constant interference with fundamental rights as retention notices will be renewed on a yearly basis. The High Court also refers to matters to which the Secretary of State must have regard to in s.88(1) of the IPA 2016 such as the benefits of the notice, number of users affected, costs etc and must also take reasonable steps to consult the relevant telecommunications operator (see s.88(2)). Regarding the former, the Secretary of State could still issue the intended retention notice irrespective of what has been regarded, and with the latter, there is no obligation to actually consult a telecommunications operator.    

The High Court then refers to the Judicial Commissioner’s (JC) role in the approval of retention notices based on the Secretary of State’s conclusions [133]. This is problematic because there ‘is no obligation on the Secretary of State to make a full and frank disclosure and therefore, the JC and IPC could be misled (accidently or deliberately) (30)’ and could ‘be given a summary a summary of a summary of a summary of a summary of the original intelligence case (30-1).’ The GC have noted that it is essential that the supervisory body has ‘access to all relevant documents, including closed materials and that all those involved in interception activities have a duty to disclose to it any material it required [281].’ This is currently not possible under the IPA 2016. The High Court then refers to the JC’s applying principles of judicial review to authorisations [133]. The question as to whether the Wednesbury principles would apply has been subject to debate (29), but the Investigatory Powers Commissioner (IPC) themselves have noted that when human rights issues arise, the necessity and proportionality tests of the ECHR and EU law will be applied instead of Wednesbury (para 17, 19). However, this statement is only advisory and admits it is not binding (para 1), thus is not a real safeguard.

The High Court then refers to the JC’s general duties under s.2 of the IPA 2016 [133]. The first of which concerns the JC having regard to whether there are less intrusive measures to achieve the objective. There is, data preservation, but this isn’t in the IPA 2016 (unless one considers s.61 to be form of data preservation). The second concerns the level of protection to sensitive information, which is much narrower than sensitive personal data in data projection instruments as it only includes legally privileged material, journalistic sources, communications with Members of Parliament etc. The JC’s cannot have regard to sensitive information because as the Bar Council and Law Society have highlighted that the problem bulk communications data retention is that it does not prevent legally privileged data from entering the ‘pool’ in the first place (para 32). With regards to journalistic sources, United Nations Educational, Scientific and Cultural Organization (UNESCO) noted that even when journalists encrypt the content, they may neglect to encrypt the communications data which means they still leave behind a digital trail when they communicate with their sources, making them identifiable (26).

The High Court then refers to the fact that a telecommunications operator can refer a retention notice back to the Secretary of State, which again would require approval by the IPC [134]. And if the IPC approves a notice on BT to retain all the communications data of their subscribers, then what? The High Court summarises Part 4 by noting that they ‘do not think it could possibly be said that the legislation requires, or even permits, a’ general retention regime [135]. However, it was never the argument that the IPA 2016 requires a general retention regime, but that it permits the Secretary of State and JC to require a general retention regime. As the ECtHR have maintained ‘it would be contrary to the rule of law for the discretion granted to the executive or to a judge to be expressed in terms of an unfettered power [230].’ The question is not ‘will they’ but ‘can they.’

The High Court continues that Part 4 and s.2 requires a range of factors to be taken into account before a retention notice is issued [135]. Although it was already argued that ‘catch all’ power is not necessary for Part 4 to be deemed unlawful, it is useful to play Devil’s Advocate. Can the Secretary of State issue a retention notice on all telecommunications operators to retain all communications data if they deem it necessary and proportionate? Can a JC approve this? Can this still be the case if the telecommunications operator refers this back to the Secretary of State subject to approval by the IPC? If the answer is yes, then this highlights that all the factors that the High Court refers to does not change the operation of the power itself. If the answer is no, then the High Court is ignoring the glaringly obvious implications of a power that can be applied to all or any telecommunications operator to retain any or all communications data.

The High Court then puts its previous judgment to one side (where they agreed DRIPA 2014 permitted a general retention regime) by arguing that:

Even if that assumption were to be applied in this case, it is plain from the analysis set out above, that the 2016 Act does not permit the general and indiscriminate retention of communications data. In any event, we would add that the issue of whether a UK enactment is inconsistent with EU legislation is not to be determined by evidence from either party as to how the domestic scheme is operated in practice or might be operated. Instead, the issue is an objective question of law which turns on the proper interpretation of the two pieces of legislation [136]. 

Essentially, the High Court are saying, even if the previous judgment was correct, IPA 2016 is somehow different, despite the wording of the power in DRIPA 2014 being identical. In amazing fashion, the High Court decided that it does not really matter how the law is or might be operated, but relies upon the notion of an ‘objection question of law’ and how it is interpreted. And this is why ignoring the ECHR, if it was not made clear above is problematic because the ECtHR have consistently held that:

[T]hat the mere existence of laws and practices which permitted and established a system for effecting secret surveillance of communications entailed a threat of surveillance for all those to whom the legislation might be applied. This threat necessarily affected freedom of communication between users of the telecommunications services and thereby amounted in itself to an interference with the exercise of the applicants’ rights under Article 8, irrespective of any measures actually taken against them [168].

The High Court’s position is in contrast to the position of the ECtHR in that secret surveillance can be judged in abstracto or where an individual can claim to actually be subject of a surveillance measure. All that is required is that one is able to show that they are ‘potentially at risk of being subjected to such measures [171].’ Whether retention notices apply to all telecommunications operators to retain all communications data, or to one telecommunications operator to retain all (or even some) communications data, this allows for the ‘automatic storage for six months of clearly irrelevant data’ and ‘ cannot be considered justified under Article 8 [255].’ Even six months is unacceptable to the ECtHR (which raises serious questions as to the 12-month retention limit), this position is strengthened by Advocate General Øe, who noted that:

The disadvantages of general data retention obligations arise from the fact that the vast majority of the data retained will relate to persons who will never be connected in any way with serious crime [252].

Conclusion

This blog post has highlighted many flaws in the approach of the High Court with regards data retention. Part 4 of the IPA 2016 is neither consistent with the ECHR or EU law. The High Court have fallen into the same trap as the Court of Appeal did earlier this year when distinguishing a catch all power, and a power that can catch all. This post only partially deals with the judgment as the aspects of entity data and serious crime deserve posts of their own. What is just as disappointing as this judgment is the claim that it was a landmark victory, when in actual fact, the rulings against the Defendants were concessions they already made, leaving the crucial aspect of Part 4 unscathed. A wise little green man might say ‘Victory? Victory you say? Master Liberty, not victory. The shroud of data retention persists. Continue the mass surveillance will.’