• THE SOCIETY FOR CONSTITUTIONAL LAW DISCUSSION

ELGIZOULI V. SECRETARY OF STATE FOR THE HOME DEPARTMENT: A CRITIQUE


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Authors of the piece are Raj Krishna and Alivya Sahay of Chanakya National Law University, Patna


I. INTRODUCTION

On 25th March, 2020, the Supreme Court of United Kingdom in a landmark ruling held that “the act of handing over of the evidence by the British Home Secretary to the American authorities was unlawful because it was not in sync with the law laid down in the Data Protection Act 2018.”

This judicial review was brought in before the court by Maha El Gizouli who is the mother of Shafee El Sheikh, a suspected member of the British terrorist group popularly known as ‘The Beatles.’ In June 2015, the United States of America made a mutual legal assistance request to the British authorities in relation to an investigation pertaining to the activities of the Beatles. In accordance with long-established practice, the then Home Secretary Sajid Javid requested an assurance from the American authorities that the information provided will not be used in a direct or indirect manner in a prosecution which could lead to the imposition of the death penalty. The American authorities refused to provide a full death penalty assurance. Nevertheless, in June 2018, the then Home Secretary agreed to provide the information to the US without requiring any assurance.  As a result the appellant challenged the decision of the Home Secretary’s by the way of judicial review. Mrs El Gizouli argued before the Court that the conduct of Home Secretary violated the provisions of Data Protection Act 2018 and was in contrary to the common law

In February 2019 the High Court in this case observed that the act of Home Secretary was lawful and thereby delivered the decision in favor of the authorities. Against this decision of the High Court the applicant filed an appeal before the British Supreme Court.

The issues which were framed before the Apex Court at the time of hearing were as follows-

I. Is it unlawful under the common law to facilitate the imposition of the death penalty against an individual in a foreign state through the provision of information?

II. Is the decision to provide information was lawful under the provisions of Data Protection Act 2018?


II. JUDGMENT OF THE COURT

The Supreme Court allowed the appeal of the appellant. The majority of the Justices dismissed the challenge brought under the common law; however the Court unanimously held that “the decision of the Home Secretary was not in sync with the provisions of the Data Protection Act.”

On the first issue, the majority of the Justices held that “the common law has not evolved to recognize a principle prohibiting the provision of MLA that will facilitate the death penalty.” Lord Carnwath in his judgment observed that “the key legal developments in relation to the death penalty have never attracted the attention of the common law.  Most of the reforms in regard to the death penalty have come from Parliament and the European Court of Human Rights and not the domestic courts.” However Lord Kerr in his judgment observed that the common law had evolved to recognize a principle whereby “it is unlawful to facilitate by provision of material to be used in the trial of a person in a foreign country where there is a risk that, as a result of those proceedings, that person would be at risk of execution.”

Whereas on second issue the Court unanimously held that “the decision of the Home Secretary was unlawful under the provisions of the Data Protection Act, 2018.” Sections 73-76 of the Data Protection Act lay down the criteria for the transfer of personal data to third countries. The data controller cannot transfer data unless the three conditions in s. 73(1) (a) are met. The Conditions laid down under Section 73(1) are as follows:-

“I. The transfer is necessary for any of the law enforcement purposes.

II. The transfer is (a) based on an adequacy decision of the European Commission; (b) if not based on an adequacy decision, is based on there being appropriate safeguards; or (c) if not based on an adequacy decision or appropriate safeguards, is based on special circumstances.”

The judges upon this issue observed that this transfer was not based upon an adequacy decision or appropriate safeguards. Nor does the transfer meet the special circumstances requirement as listed in Section 76(1) of the statute. Since the conditions did not fulfill the legal requirement, the decision of the Home Secretary was rendered unlawful.


III. WAY FORWARD

This judgment is a landmark judgment both for future cooperation over this prosecution and for other similar cases dealing with death penalty assurances. From the legal point of view the observation of Lord Kerr’s opinion upon the existence of a customary international law norm that the death penalty is per se a violation of the prohibition on torture or cruel, inhuman and degrading treatment deserves an appreciation. Whereas from a diplomatic point of view the judgment depicts the serious pressure exerted from the current US administration over UK’s assurances policy.

However it is pertinent to note that the real significance of Elgizouli judgment is not in its analysis of the common law but in pointing the way towards defending the human rights of data subjects. Furthermore if such an analysis is accepted in fuller argument, then it may facilitate greater rights protections beyond the territorial limitations of the European Convention on Human Rights. Apart from that this judgment has confirmed that the Mutual Legal Assistance decisions by the British authorities will now be subject to a court review; notwithstanding that MLA is an exercise of a prerogative power.  As a result this is a monumental decision which deserves an appreciation.


This article is first published on CONSTITUTIONALISM 3.0 website.

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