National Council for Civil Liberties, R (on the application of) v Secretary of State for the Home Department & Anor

Convention compatibility of investigatory powers is assessed by the totality of the safeguards governing each power and each stage of its use. The court must consider the degree of intrusion, the statutory scheme and codes of practice, and whether the safeguards are accessible, foreseeable and effective against abuse. The Act’s double-lock, operational-purpose controls, necessity and proportionality requirements, oversight and remedies generally met that standard. The amended safeguards for confidential journalistic material were sufficient for bulk interception. The court declined to impose every safeguard identified in Big Brother Watch on materially different powers. The transfer of bulk personal-dataset material was incompatible with Article 8 only because its safeguards were not publicly accessible. The question of prior independent authorisation for journalistic material obtained through bulk equipment interference was remitted.

The appellant challenged the compatibility of Parts 3, 4, 5, 6 and 7 of the Investigatory Powers Act 2016 with Articles 8 and 10 of the Convention and with retained European Union law.

The Divisional Court dealt with the proceedings in three judgments: the first EU-law judgment, [2018] EWHC 975 (Admin); the Convention judgment, [2019] EWHC 2057 (Admin); and the second EU-law judgment, [2022] EWHC 1630 (Admin). The central issues were whether the statutory safeguards against arbitrary or abusive surveillance were adequate, particularly for journalistic material, legally privileged material, overseas disclosure and bulk personal datasets, and whether the regimes involved general and indiscriminate retention or required repeated independent authorisation.

The appeal was dismissed, subject to a remedy concerning overseas transfers from bulk personal datasets and remission of one issue to the Divisional Court.

1. Method of assessment. Each statutory regime had to be assessed as a whole, taking account of the nature and degree of intrusion, the different stages of surveillance, the Act, applicable codes of practice, oversight and remedies. The absence of a safeguard identified in Big Brother Watch did not automatically establish incompatibility where materially different arrangements achieved the same underlying protection.
2. Bulk and targeted powers. The double-lock, specified operational purposes, necessity and proportionality requirements, Judicial Commissioner scrutiny, retention and disclosure safeguards, oversight and Investigatory Powers Tribunal remedies provided adequate safeguards for bulk interception, bulk acquisition of communications data, bulk equipment interference and targeted equipment interference. Communications-data safeguards need not be identical to content safeguards.
3. Journalistic material. The amended section 154 of the Investigatory Powers Act 2016 complied with Article 10. Prior independent authorisation was required where the purpose, or highly likely effect, of selection was to identify confidential journalistic material or a source, with public-interest balancing and consideration of less intrusive means. The arrangements for Parts 3, 4, 5 and Chapter 2 of Part 6 were also adequate. The compatibility of Chapter 3 of Part 6, in the absence of prior independent authorisation for examination of material capable of identifying a source, was remitted.
4. Other safeguards. There was no general requirement for prior independent authorisation before examination of legally privileged material. The rules governing Part 7 bulk personal datasets were sufficiently clear and detailed, but safeguards for transfers to overseas authorities were not publicly accessible and therefore were not in accordance with law under Article 8. Parts 3 to 6 did not involve general and indiscriminate retention under retained EU law, and initial independent authorisation of a warrant covering retention and access was sufficient.

1. Court of Appeal (Civil Division) dismissed the appeal, subject to written submissions on the appropriate remedy for the Part 7 overseas-transfer defect and remission of the Chapter 3 Part 6 journalistic-material issue.
2. Divisional Court, Administrative Court determined the proceedings in three judgments: [2018] EWHC 975 (Admin), [2019] EWHC 2057 (Admin) and [2022] EWHC 1630 (Admin). It rejected the Convention and retained-EU-law challenges save for one narrow EU-law point.