This chapter examines the purpose and impacts of state surveillance in the digital environment. It considers the effects of the revelations brought to light by Edward Snowden and outlines the current legal framework for the interception of communications in the UK. The programmes of state surveillance, including by the NSA, GCHQ, and Prism are outlined. The retention and use of personal digital data is also discussed and its relation to the Investigatory Powers Act 2016 examined in detail. The chapter discusses the challenges to data interception in Liberty & Privacy International v GCHQ, Centrum För Rättvisa v Sweden, and Big Brother Watch v UK and against data retention in Tele2 Sverige.
Chapter
25. State surveillance and data retention
Chapter
21. The Area of Freedom, Security and Justice: EU Justice and Home Affairs Law and Policy
This chapter examines the European Union (EU) home affairs law and policy, known in EU law as ‘the area of freedom, security and justice (AFSJ)’. It discusses the provisions of EU law on immigration and asylum (refugees and subsidiary protection) regulating the entry and residence of non-EU citizens, distinguishing between legal and unauthorised entry (controls at the border and expulsion and detention of irregular migrants), and the protection given to third -country nationals by a range of legislative measures. It also introduces the legal framework for the EU’s criminal justice policies, including the link between substantive criminal law and other EU policies.
Chapter
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, House of Lords (also known as the GCHQ case)
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, House of Lords (also known as the GCHQ case). This case note discusses both the ‘new nomenclature’ (Lord Roskill at 415) of judicial review established by Lord Diplock, and the House of Lords’ conclusion that prerogative powers are, in principle, reviewable by the courts. There is also discussion of the deployment of national security arguments to avoid review. The document also includes supporting commentary and questions from author Thomas Webb.
Chapter
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, House of Lords (also known as the GCHQ case)
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, House of Lords (also known as the GCHQ case). This case note discusses both the ‘new nomenclature’ (Lord Roskill at 415) of judicial review established by Lord Diplock, and the House of Lords’ conclusion that prerogative powers are, in principle, reviewable by the courts. There is also discussion of the deployment of national security arguments to avoid review. The document also includes supporting commentary and questions from author Thomas Webb.
Chapter
24. The Area of Freedom, Security and Justice: EU justice and home affairs law and policy
This chapter examines the European Union (EU) home affairs law and policy, known in EU law as ‘the area of freedom, security and justice (AFSJ)’. It discusses the provisions of EU law on immigration and asylum (refugees and subsidiary protection) regulating the entry and residence of non-EU citizens, distinguishing between legal and unauthorised entry (controls at the border and expulsion and detention of irregular migrants), and the protection given to third -country nationals by a range of legislative measures. It also introduces the legal framework for the EU’s criminal justice policies, including the link between substantive criminal law and other EU policies.
Chapter
Privacy International and others v Secretary of State for Foreign and Commonwealth Affairs and others [2021] EWCA Civ 330, Court of Appeal (also known as the Third Direction case)
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Privacy International and others v Secretary of State for Foreign and Commonwealth Affairs and others [2021] EWCA Civ 330, Court of Appeal. The case (also known as the Third Direction case) concerned whether the security service (MI5) was able to authorize its agents to commit criminality in the course of their work, and whether such authorization could grant immunity to said agents from criminal prosecution. The case has, in substance, been superseded by the passage of the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, but it nonetheless raises more fundamental questions about the relationship between the rule of law and national security. The document also includes supporting commentary and questions from author, Thomas Webb.
Chapter
Privacy International and others v Secretary of State for Foreign and Commonwealth Affairs and others [2021] EWCA Civ 330, Court of Appeal (also known as the Third Direction case)
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Privacy International and others v Secretary of State for Foreign and Commonwealth Affairs and others [2021] EWCA Civ 330, Court of Appeal. The case (also known as the Third Direction case) concerned whether the security service (MI5) was able to authorize its agents to commit criminality in the course of their work, and whether such authorization could grant immunity to said agents from criminal prosecution. The case has, in substance, been superseded by the passage of the Covert Human Intelligence Sources (Criminal Conduct) Act 2021, but it nonetheless raises more fundamental questions about the relationship between the rule of law and national security. The document also includes supporting commentary and questions from the author, Thomas Webb.
Chapter
10. Freedom of Expression
The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, caution advice, suggested answers, illustrative diagrams and flowcharts, and advice on gaining extra marks. Concentrate Q&A Human Rights & Civil Liberties offers expert advice on what to expect from your human rights and civil liberties exam, how best to prepare, and guidance on what examiners are really looking for. Written by experienced examiners, it provides: clear commentary with each question and answer; bullet point and diagram answer plans; tips to make your answer really stand out from the crowd; and further reading suggestions at the end of every chapter. The book should help you to: identify typical law exam questions; structure a first-class answer; avoid common mistakes; show the examiner what you know; all making your answer stand out from the crowd. This chapter covers freedom of speech and expression, including the scope of free speech and expression, its protection in domestic law and under the ECHR, and its application to areas such as public order, national security contempt of court, press freedom, and defamation law.
Chapter
25. State surveillance and data retention
This chapter examines the purpose and impacts of state surveillance in the digital environment. It considers the effects of the revelations brought to light by Edward Snowden and outlines the current legal framework for the interception of communications in the UK. The programmes of state surveillance, including by the NSA, GCHQ, and Prism are outlined. The retention and use of personal digital data is also discussed and its relation to the Investigatory Powers Act 2016 examined in detail. The chapter discusses the challenges to data interception in Liberty and Privacy International v GCHQ and against data retention in Tele2 Sverige.
Chapter
A (and others) v Secretary of State for the Home Department [2004] UKHL 56, House of Lords
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in A (and others) v Secretary of State for the Home Department [2004] UKHL 56, House of Lords. This case concerned the Human Rights Act 1998, the willingness of the courts to engage with national security matters and, by extension, considered how key constitutional principles should shape the courts’ approach to the 1998 Act. The document also includes supporting commentary and questions from author Thomas Webb.
Chapter
A (and others) v Secretary of State for the Home Department [2004] UKHL 56, House of Lords
Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in A (and others) v Secretary of State for the Home Department [2004] UKHL 56, House of Lords. This case concerned the Human Rights Act 1998, the willingness of the courts to engage with national security matters and, by extension, considered how key constitutional principles should shape the courts’ approach to the 1998 Act. The document also includes supporting commentary and questions from author Thomas Webb.
Chapter
19. Citizenship: Rights of Free Movement and Residence
This chapter examines the European Union (EU) law concerning citizenship and the right of residence and free movement. It suggests that while citizenship provides a broad framework of rights, it is important to recognise the higher level of protection awarded to the economically active under Articles 45 (workers), 49 (establishment) and 56 (services) of the Treaty on the Functioning of the European Union (TFEU). The chapter also considers the link between migration and the rights claimed, and the underlying concerns about the abuse of Union law rights. It also considers the position of third-country nationals (who are family members or dependents of an EU national) and students. This chapter also examines the social rights that arise as part of free-movement rights under Articles 21, 45, 49 and 59 of the Treaty on the Functioning of the European Union (TFEU). As well as dealing with the provisions in the Citizens’ Rights Directive (CRD) (Directive 2004/38) and Regulation 492/2011, the chapter deals with social security and citizenship. This chapter also examines the European Union (EU) law concerning the free movement of persons and the limitations of this right on grounds of public health, public security, or public policy, including the ‘rule of reason’ and expulsion, refusal of entry or an entry ban due to criminal offences or other personal conduct. It considers the substantive scope of the derogation provisions and the procedural guarantees in the CRD applicable to EU citizens and their family members facing expulsion, refusal of entry or entry bans.
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15. Deportation
Gina Clayton, Georgina Firth, Caroline Sawyer, and Rowena Moffatt
This chapter gives a brief history of the power of deportation. It then discusses in some detail the application of the ground that the deportation is conducive to the public good. This includes discussion of so-called automatic deportation under the UK Borders Act 2007, and of national security cases. The chapter also covers the Immigration Act 2014 provisions relating to deportation.
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8. Public Interest Immunity and Related Matters
Chapter 8 examines the doctrine of public interest immunity. It discusses the development of the law; ‘class’ claims and ‘contents’ claims; national security and analogous concerns; proper functioning of the public service; the two main contexts in which public interest immunity disputes in criminal cases have arisen—the disclosure of the identity of police informers, and the disclosure of the location of police observation points; how the doctrine of public interest immunity stands alongside, and probably overlaps with, the operations of the Freedom of Information Act 2000; and section 10 of the Contempt of Court Act 1981, which governs the disclosure of sources of information contained in publications.
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17. Article 10: freedom of expression
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. It discusses European Convention law and relates it to domestic law under the HRA. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter focuses on Article 10, one of the fundamental rights acknowledged in a liberal, democratic society—freedom of expression. Article 10 is a qualified right which reflects the idea that there can be important and legitimate reasons as to why freedom of expression may need to be restricted in order to protect other important rights and freedoms. While the first paragraph of Article 10 establishes a general right to freedom of expression, its second paragraph identifies the only bases upon which the right can be restricted. Restriction of the freedom of expression is subject to scrutiny by the courts, and its necessity must be established by the state. In particular the chapter discusses human rights in the context of political speech and the impact of restraints on hate speech.
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22. Mergers (3): UK
This chapter discusses UK law on the control of mergers. The chapter is organized as follows. Section 2 provides an overview of the domestic system of merger control. Section 3 explains the procedure of the Competition and Markets Authority (CMA) when determining whether a merger should be referred for an in-depth ‘Phase 2’ investigation and when deciding to accept ‘undertakings in lieu’ of a reference. Section 4 describes how Phase 2 investigations are conducted and Section 5 discusses the ‘substantially lessening competition’ (‘SLC’) test. Section 6 explains the enforcement powers in the Enterprise Act 2002, including the remedies that the CMA can impose in merger cases. The subsequent sections discuss various supplementary matters, such as powers of investigation and enforcement. The chapter concludes with a discussion of how the merger control provisions work in practice and a brief account of the provisions on public interest cases, other special cases and mergers in the water industry. The withdrawal by the UK from the EU means that many mergers that were subject to a ‘one-stop shop’ under EU law are now subject to investigation in the UK as well.
