By Trevor Allsopp and Michael Bates
Birmingham Law Centre granted permission to seek Judicial Review challenging compatibility of UK Census with Human Rights and European Union law
A client of Birmingham Law Centre has been granted permission for a Judicial Review in the High Court seeking a declaration that section 39(4)(f) of the Statistics and Registration Service Act 2007 (SRSA 2007) is incompatible with the European Convention of Human Rights (ECHR) and European Union law. It is a test case which raises important points of law of significant wider public interest concerning the protection of fundamental rights. Michael Bates from Birmingham Law Centre said:
‘This case has the potential to significantly impact on the future of public contracts between the UK government and US companies.’
The Law Centre’s client, a longstanding privacy campaigner, refused to take part in the 2011 Census. Our client describes himself as, “an anti-database campaigner and someone who does regard himself as an activist in ensuring the preservation of liberty and privacy.” He has completed the census in the past but believes that the 2011 census was materially different because of the potential for his personal information to be disclosed to third parties without adequate safeguards being in place.
In August 2008 Lockheed Martin was awarded the contact to run the census. The company is an American organisation with global aerospace, defence and security concerns and is one of the world’s largest defence contractors. The company has statutory obligations under the USA Patriot Act 2001 and carries out a significant amount of work for the CIA and FBI.
Lockheed Martin is heavily involved in surveillance and ‘cyber security’. It provides surveillance/data processing for the CIA and FBI. A new ‘Security Intelligence Centre’ at Farnborough was opened at the beginning of December 2011. Lockheed Martin Corporation is the lead company behind the current US government Next Generation Identification (NGI) initiative in which $1.6 billion is being spent on biometric developments that will allow many aspects of an individual’s private characteristics to be gathered and stored.
The vice-president Lockheed Martin is quoted as having said, “We want to know what’s going on any time, any place on the planet.”
Our client is concerned that there are no safeguards in place to prevent his information being disclosed and used for purposes other than those intended. Of particular concern is the United States legislation which permits the administration to obtain personal information on the grounds that there is a risk to the US national security.
The SRSA 2007 prohibits the disclosure of personal information collected during the census exercise unless one of the exemptions in section 39(4) applies. Section 39 (4)(f) exempts disclosure which is made for the purposes of a criminal investigation or criminal proceedings (whether or not in the United Kingdom).
By refusing to complete and return his census form our client faces the real possibility of being prosecuted under section 8 of the Census Act 1920 (CA 1920). Since 2012 some 369 cases have been referred to the CPS for prosecution of which at least 120 are reported to have been convicted for failing to complete and return their census form. Section 8 of the CA 1920 contains no defence and is a strict liability offence. A declaration is also being sought that a prosecution, in our client’s circumstances, under the CA 1920 is an abuse of process.
Our client is primarily relying on Article 8 of the ECHR, the right to respect for private and family life. He believes that his Article 8 rights are not protected for reasons which include; (a) there is no provision for advance notification of a disclosure request; (b) there is no court scrutiny or other independent supervision which the requesting state must first satisfy in seeking disclosure; (c) there are no guidelines as to when and how such disclosure will be made; (d) there is no provision to allow a person to object to the disclosure and to challenge it before an independent and impartial tribunal; (e) the disclosure of personal information may be made in any circumstances, even on suspicion of committing a minor crime; (f) there is no safeguard as to what use may be made of the personal information by the authorities in the requesting state.
It is also argued that European Union law, in particular Council Directive 95/46/EC and Regulations 45/2001/EC support our client’s case. His fundamental rights and freedoms, in particular the right to privacy with respect to the processing of personal data, require protection. However, section 39(4)(f) provides no basis for an independent enquiry of the legitimacy of disclosure of his personal data.
We will provide updates as the case progresses in future articles. Please contact Trevor Allsopp or Michael Bates at the Law Centre if you would like to know more about the case, or if you have relevant information to share.