EW: The Data Retention and Investigatory Powers Act is inconsistent with the right to privacy and protection of personal data in the absence of a national access regime protecting those rights under the EU Charter of Fundamental Rights

The Divisional Court of the High Court has ruled that section 1 of the Data Retention and Investigatory Powers Act 2014 is inconsistent with Articles 7 and 8 of the Charter of Fundamental Rights of the European Union.

David Davis MP and Tom Watson MP, among others, challenged the validity of section 1  of the Act and the Data Retention Regulations 2014 as being contrary to Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and, or, Article 8 of the European Convention on Human Rights.

Article 7 of the Charter protects the right to respect for private and family life. This right is also covered by Article 8 of the Convention. Article 8 of the Charter provides for the right to the protection of personal data.

The Act was a response to the Digital Rights Ireland judgment. The invalidation of the Data Retention Directive put the legal foundation for requiring retention of communications data in doubt. Some communications service providers expressed the view that there was no legal foundation to keep communications data and indicated that any data retained under the 2009 Regulations would be deleted.

The Court found that legislation providing a general data retention regime for communications data infringes Article 7 and 8 of the Charter, unless the legislation is accompanied by an access regime on a national level that provides adequate protection for the rights under the respective articles:

The solution to the conundrum, in our view, and the ratio of Digital Rights Ireland, is that legislation establishing a general retention regime for communications data infringes on Article 7 and 8 of the EU Charter unless it is accompanied by an access regime (laid down at national level) which provides adequate safeguards for those rights.

The Court awarded a Declaration stating that section 1 of the Act is inconsistent with the Charter for two reasons. One, the Act does not lay down clear and precise rules providing for access to, and use of, communications data. Two, access to the data is not made dependent on a prior review by a court or an independent administrative body.

However the Court disapplied section 1 of the Act, suspending the Order until March 31st, 2016. The Order disapplying section 1 applies to the extent that it permits access to retained data in the two respects set out in the Declaration.

UK: A decision of a judicial body should be final and binding and not capable of being overturned by a member of the Executive

The Supreme Court has ruled that Dominic Grieve, as Attorney General, did not have the power to overturn the determination of the Upper Tribunal, that twenty-seven letters exchanged between Prince Charles and ministers in seven government departments between 2004 and 2005 should be released.

The question posed to the Supreme Court was:

[...] whether communications passing between HRH The Prince of Wales and ministers in various government departments [...] between September 2004 and March 2005 [...] should be disclosed pursuant to a request made by Rob Evans, a journalist who works on the Guardian newspaper.

The Supreme Court judgment brings to an end the ten-year protracted legal battle. In April 2005 Rob Evans requested the disclosure of the letters under section 53(2) of the Freedom of Information Act 2000 and regulation 18(6) of the Environmental Information Regulations 2004. Initially the departments refused to confirm having possession of the letters, but later acknowledged it. However the departments refused to disclose the letters, considering the letters exempt  from the Act and the Regulations. Following this, Mr. Evans complained to the Information Commissioner, but the Commissioner upheld the departments' refusal in a reasoned determination in December 2009. Mr. Evans appeal to the First-tier Tribunal was transferred to the Upper Tribunal, which issued a reasoned determination in September 2012.

The departments did not appeal the determination of the Upper Tribunal. On October 16th the Attorney General issued a certificate claiming that he had formed the view that the departments had been entitled to refuse disclosing the letters and outlined his reasoned.

Mr. Evans sought to overturn the Certificate on the ground that the reasoning outlined by the Attorney General did not constitute reasonable grounds within the meaning of section 53(2) and, or because the "advocacy correspondence" was concerned with environmental issues, therefore the Certificate was in breach of Directive 2003/4/EC and, or Article 47 of the Charter of Fundamental Rights of the European Union. Mr. Evans' claim was dismissed by the divisional Court of the High Court, but was upheld by the Civil Division of the Court of Appeal on both grounds.

In a five-two majority verdict Lord Neuberger upheld the Court of Appeal judgment, that it is not reasonable for a member of the Executive to issue a certificate simply because he differs in opinion from that adopted by a court, for two reasons.

One, to allow a member of the Executive to overrule a judicial decision breaches two constitutional principles. The decision of a court is binding between parties and cannot be ignored  or set aside, and the decisions and actions are open to review by the court at the suit of an interested party.

Two, the earlier conclusion was reached by the Upper Tribunal, a court of record, after a full public oral hearing. In contrast, the later conclusion was reached by an individual who consulted one side of the correspondence, without argument on behalf of Mr. Evans, received no fresh facts, and simply differed in opinion.

In determining on what grounds a certificate can be issued, Lord Neuberger agreed Lord Dyson Master of the Rolls in the Court of Appeal:

Examples of what would suffice are that there has been a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law.

Moreover, Lord Neuberger concluded that the limitation on the grounds upon which a certificate  can be issued also apply following a decision of the First-tier Tribunal.

Although not strictly necessary, Lord Neuberger also considered the effect of the 2003 Directive on the Certificate, concluding that it would have been invalid in so far as it related to environmental information contained in the advocacy correspondence. 

CJEU(J): Obesity may be considered a disability for the purposes of the Equal Treatment in Employment Directive

The Court of Justice of the European Union has ruled that obesity may be considered a disability for the purposes of the Equal Treatment in Employment Directive.

Karsten Kaltoft had been working as a child-minder for the Municipality of Billund in Denmark since November 1996 until Mr. Kaltoft was dismissed in November 2010. However, Mr. Kaltoft was told that the reason for his dismissal was the decline in the number of children, without providing the reasons for selecting him.

In periods throughout his employment with the Municipality, Mr. Kaltoft, with financial assistance attempted to lose weight by attending fitness classes. While the Municipality denies that the issue of obesity provided the basis for the dismissal, Mr. Kaltoft maintained his dismissal is rooted in discrimination due to his weight.

Mr. Kaltoft took a case for damages for discrimination to the Retten i Kolding (District Court of Kolding) in Denmark. The District Court asked the Court of Justice to clarify if EU law includes a self-standing prohibition on discrimination on the grounds of obesity. Alternatively, the District Court asked if obesity can be classified as a disability within the meaning of Equal Treatment in Employment Directive.

In July, Advocate General Niilo Jääskinen observed that nothing in the  Charter of Fundamental Rights of the European Union explicitly refers to obesity as a prohibited ground of discrimination. Therefore, the Advocate General concluded, any prohibition could only exist as part of a general prohibition in the labour market. Moreover, the Advocate General held that the Charter is only binding when a member state implements EU law. The Advocate General also emphasised that EU legislative acts prohibiting discriminatory conduct are addressed to specific grounds of discrimination with definitive subject areas. Therefore, there is no general, stand-alone prohibition on discrimination on the grounds of obesity.

The Court of Justice found that if obesity hinders:

[...] the full and effective participation of that person in professional life on an equal basis with other workers ...

then obesity can fall within the concept of "disability".