R (National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department and another

Under Part 4 of the Investigatory Powers Act 2016 the Secretary of State has the power to issue 'retention notices' requiring telecoms operators to retain certain data. Liberty challenged this power on the basis that it is not compatible with the Charter of Fundamental Rights of the European Union. In particular it claimed this was because: (a) in the area of criminal justice Part 4 does not limit access to retained data to the purpose of combating "serious crime"; and (b) that access is not subject to prior review by a court or an independent administrative body.

The Secretary of State conceded the incompatibility and confirmed that the issue would be corrected by secondary legislation. The case before the Divisional Court was about what relief should be granted in light of that concession.

Liberty applied to the Court to make an order disapplying Part 4 on the basis that, until the amending secondary legislation is approved, unlawful retention of communications data continues. Liberty requested that, in the alternative, the Court make a declaration of incompatibility.

The Court relied on R (Chester) v Secretary of State for Justice as authority that there is no automatic rule that national legislation must immediately be disapplied once it is held to be incompatible with EU law. There is nothing in EU law which prevents a Member State from having national legislation which permits the retention of data; rather the incompatibility stemmed from the failure to have certain safeguards in the legislation. The requirement for an alternative legislative scheme to be imposed in order to rectify the incompatibility made the situation distinguishable from one where a provision of incompatible national legislation can simply be ignored or overridden by EU law.

Refusing to make an order for disapplication the Court noted that this was an important constitutional case where there were vital public interests at stake on both sides, and ruled that making an order for disapplication (a coercive form of order which can be enforced by the courts) would not be appropriate in such a delicate constitutional context. Instead it favoured the more cautious approach of making a declaratory judgment of incompatibility (albeit on a narrower basis than that sought by Liberty) which included a statement that the legislation must be amended within a reasonable time and in any event not later than around six months from the date of the judgment.