Investigatory Powers Tribunal finds that s94 of the Telecommunications Act 1984 is incompatible with EU law


Re: Privacy International v Secretary of State for Foreign and Commonwealth Affairs and Ors [2021] UKIPTrib IPT_15_110_CH

The claimant brought proceedings before the Investigatory Powers Tribunal alleging that the regime set out by s94 of the Telecommunications Act 1984 that stipulates that the Secretary of State may make directions as to the use of ‘Bulk communications data’ (BCD), is incompatible with EU Law.

Proceedings were commenced in 2015, where the Tribunal gave its provisional view that the matter fell outside the scope of EU law on the basis that it concerned National Security. Reference was subsequently made by the Tribunal to the CJEU.

The Grand Chamber of the CJEU gave its judgment in the request for a preliminary ruling. The court found that the regime stipulated by s94 did indeed fall within the scope of Directive 2002/58, read in light of Article 4(2) TEU. Furthermore, it found that:

“In the light of all the foregoing considerations … Article 15(1) of Directive 2002/58, read in the light of Article 4(2) TEU and Articles 7, 8 and 11 and Article 52(1) of the Charter, must be interpreted as precluding national legislation enabling a State authority to require providers of electronic communications services to carry out the general and indiscriminate transmission of traffic data and location data to the security and intelligence agencies for the purpose of safeguarding national security.”

In the present case and in light of the CJEU’s analysis, both parties agreed that the CJEU ruling meant that s94 did fall within the scope of EU law. The issue before the tribunal was whether it was compatible or not.

The claimant submitted that it was not, on the basis that the wording of the section itself was exceptionally broad and did not lay down either substantive or procedural conditions governing the use of BCD. It did not rely on “objective criteria” in order to define the circumstances and conditions under which the security and intelligence agencies were to be granted access to that data. It could not therefore be shown that section 94 was “strictly necessary” and was therefore unlawful.

The respondents accepted that section 94 was not compliant with EU law in several ways, but argued that there were important caveats to this in the present case that ought to be considered as far as the consequences of incompatibility go. On this basis the respondents were content for the Tribunal to state in its judgment, or grant a declaration, that section 94 of the 1984 Act was incompatible with EU law.


Held: The Tribunal endorsed the agreed position of the parties, stating that it was bound by the judgment of the CJEU, namely that s94 was clearly incompatible with EU law. A declaration was granted to that effect, although the consequences of that declaration were to be decided at a later stage.

The Tribunal also allowed the parties to make an application for leave to appeal.

Mr J Glasson QC and Ms Sarah Hannett QC were involved in this case.