Ground 5: The Divisional Court was wrong to hold that SWP complied with the PSED in circumstances in which SWP’s Equality Impact Assessment was obviously inadequate and was based on an error of law (failing to recognise the risk of indirect discrimination) and SWP’s subsequent approach to assessing possible indirect discrimination arising from the use of AFR is flawed. It is argued that the Divisional Court failed in its reasoning to appreciate that the PSED is a continuing duty.
Discussion
Ground 1: Sufficient Legal Framework
The Divisional Court addressed what is now the subject of Ground 1 in this appeal at
[79]-[97] of its judgment, where it asked the question: “Is there a sufficient legal framework for the use of AFR Locate?”
The Divisional Court set out the general principles on this issue at [80]:
“The general principles applicable to the ‘in accordance with the law’ standard are well-established: see generally per Lord Sumption in Catt , above, [11]-[14]; and in Re Gallagher [2019] 2 WLR 509 at [16] – [31]. In summary, the following points apply. (1) The measure in question (a) must have ‘some basis in domestic law’ and (b) must be ‘compatible with the rule of law’, which means that it should comply with the twin requirements of ‘accessibility’ and ‘foreseeability’ ( Sunday Times v United Kingdom (1979) 2 EHRR 245; Sliver v United Kingdom (1983) 5 EHRR 347; and Malone v United Kingdom (1984) 7 EHRR 14). (2) The legal basis must be ‘accessible’ to the person concerned, meaning that it must be published and comprehensible, and it must be possible to discover what its provisions are. The measure must also be ‘foreseeable’ meaning that it must be possible for a person to foresee its consequences for them and it should not ‘confer a discretion so broad that its scope is in practice dependent on the will of those who apply it, rather than on the law itself’ (Lord Sumption in Re Gallagher, ibid, at [17]). (3) Related to (2), the law must ‘afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise’ ( S v United Kingdom, above , at [95] and [99]). (4) Where the impugned measure is a discretionary power, (a) what is not required is ‘an over-rigid regime which does not contain the flexibility which is needed to avoid an unjustified interference with a fundamental right’ and (b) what is required is that ‘safeguards should be present in order to guard against overbroad discretion resulting in arbitrary, and thus disproportionate, interference with Convention rights’ (per Lord Hughes in Beghal v Director of Public Prosecutions [2016] AC 88 at [31] and [32]). Any exercise of power that is unrestrained by law is not ‘in accordance with the law’. (5) The rules governing the scope and application of measures need not be statutory, provided that they operate within a framework of law and that there are effective means of enforcing them ( per Lord Sumption in Catt at [11]). (6) The requirement for reasonable predictability does not mean that the law has to codify answers to every possible issue ( per Lord Sumption in Catt at [11]).”
There was no material dispute between the parties before this Court that that was an accurate statement of the relevant principles. In applying those principles to the present context, the Divisional Court concluded as follows, at [84]:
“In our view, there is a clear and sufficient legal framework governing whether, when and how AFR Locate may be used. … The legal framework within which AFR Locate operates comprises three elements or layers (in addition to the common law), namely: (a) primary legislation; (b) secondary legislative instruments in the form of codes of practice issued under primary legislation; and (c) SWP's own local policies. Each element provides legally enforceable standards. When these elements are considered collectively against the backdrop of the common law, the use of AFR Locate by SWP is sufficiently foreseeable and accessible for the purpose of the ‘in accordance with the law’ standard.”
The Divisional Court considered the legislation and policy documents and concluded as follows, at [96]-[97]:
“96. Drawing these matters together, the cumulative effect of (a) the provisions of the DPA, (b) the Surveillance Camera Code and (c) SWP's own policy documents, is that the infringement of Article 8(1) rights which is consequent on SWP's use of AFR Locate, occurs within a legal framework that is sufficient to satisfy the ‘in accordance with the law’ requirement in Article 8(2). The answer to the primary submissions of the Claimant and the Information Commissioner, is that it is neither necessary nor practical for legislation to define the precise circumstances in which AFR Locate may be used, e.g. to the extent of identifying precisely which offences might justify inclusion as a subject of interest or precisely what the sensitivity settings should be ( c.f. Lord Sumption in Catt at [14]). Taking these matters as examples, the Data Protection Principles provide sufficient regulatory control to avoid arbitrary interferences with Article 8 rights. The legal framework that we have summarised does provide a level of certainty and foreseeability that is sufficient to satisfy the tenets of Article 8(2). It provides clear legal standards to which SWP will be held. As to the content of local policies, we take account that AFR Locate is still in a trial period. The content of SWP's policies may be altered and improved over the course of this trial. The possibility (or even the likelihood) of such improvement is not evidence of present deficiency. 97. Finally, under this heading, we refer to the comments by the Home Secretary (in her Biometrics Strategy) as to the legal framework within which AFR Locate presently operates (see above, at paragraph 67). In our view, when considered in context, these comments should be considered as amounting to pragmatic recognition that (a) steps could, and perhaps should, be taken further to codify the relevant legal standards; and (b) the future development of AFR technology is likely to require periodic re-evaluation of the sufficiency of the legal regime. We respectfully endorse both sentiments, in particular the latter. For the reasons we have set out already, we do not consider that the legal framework is at present out of kilter; yet this will inevitably have to be a matter that is subject to periodic review in the future.”
We find the references by the Court to the possibility of future reconsideration of this issue a little curious. This is because either an interference is in accordance with the law or it is not. The issue of whether there is relevant “law” for this purpose is a binary question: see In re Gallagher , at [14] (Lord Sumption JSC). The fact that this case involved the trial of a new technology does not alter the need for any interference with Article 8 rights to be in accordance with the law.
Mr Squires QC invited us to have regard to hypothetical scenarios which may arise in the future, for example if the large network of CCTV cameras in this country were to be connected to AFR Locate in such a way that a person’s movements around the country could be tracked. In support of that submission Mr Squires urged upon us what was said in the dissenting judgment of Lord Kerr JSC in Beghal v Director of Public Prosecutions [2015] UKSC 49 , [2016] AC 88, at [93] and [102]. In that last paragraph, Lord Kerr said that: