NI Court of Appeal: Appeal claiming Covid restrictions breached GDPR fails on all grounds

Royal Courts of Justice, Belfast

22 May 2023

Northern Ireland’s Court of Appeal has dismissed an appeal alleging that the Department of Health breached data privacy and GDPR requirements during the Covid-19 pandemic.

The court upheld the decision of the trial court in the Williams case [2022] NIQB 12, delivered by Mr Justice Adrian Colton.

Ultimately, the court found that the appeal was now academic, and that the appellant, an unvaccinated individual, had no standing to challenge the regulations.

Background

The appellant brought an appeal against the judgment of Mr Justice Colton, who refused leave to challenge Northern Ireland Covid restrictions. The appellant sought to challenge the regulations introduced by the Department of Health, exercising powers conferred by the Public Health Act (NI) 1967.

The Health Protection (Coronavirus, Restrictions) Regulations (NI) 2021 (Amendment No. 19) Regulations (NI) 2021 came into operation on 29 November 2021 in Northern Ireland. They introduced provisions requiring Covid-Status certification in certain settings, which were deemed by the regulations to be high risk.

GDPR

The appellant alleged that there had been breaches of the General Data Protection Regulations (GDPR). The central issues raised queried whether Mr Justice Colton was correct to dismiss the application on the basis that the appellant lacked standing, and that the case was academic.

The appellant relied on three principal grounds relating to the GDPR.

First, he argued that the proposed respondents failed to comply with the GDPR and the Data Protection Act 2018, in allowing unlawful processing of sensitive special category personal data in relation to data subjects. He argued that this occurred in circumstances where it was not necessary to process personal data at all to achieve their legitimate aims.

Secondly, the appellant claimed that the proposed respondents failed to comply with data legislation, as they did not carry out an adequate data protection impact assessment prior to the regulations being brought into operation.

Thirdly, the proposed respondents failed to consult, pursuant to the implied statutory duty under section 64 of the Data Protection Act 2018, and/or at common law.

Consideration

In assessing the appeal, the court first noted that in Williams, the trial judge identified the “first and most obvious issue” as being the question of the appellant’s standing. As the appellant was not vaccinated, the processing about which he complained would never apply to him.

In response, however, the appellant argued that he had standing on the grounds of “public interest”.

The court emphasised that the appellant was not a data subject in respect of the provisions about which he was complaining, and further, he had never been prohibited from entering any of the venues affected by the regulations, as there was an alternative means for him to certify his status.

Next, the court highlighted that the restrictions have now been removed in their entirety. Since January 2022, the regulations only applied to nightclubs and venues providing indoor events where some or all of the audience were not normally seated with 500 or more attendees.

The court also recognised that Mr Justice Colton had noted that the appellant had only filed his affidavit after the majority of the restrictions were removed.

Further, the regulations were introduced as emergency measures during a public health emergency. The regulations were also discussed and approved by the Executive Committee on a number of occasions, and were debated upon by the Northern Ireland Assembly.

The trial court also stressed that “the court […] has not received any legal challenge to these regulations from any person actually affected by the complaint here, namely those who are vaccinated”.

Justice Colton found that the key question for the court in exercising its discretion to grant leave for judicial review related to the utility of the court hearing and determining the matter.

The trial court did accept that there was a legal argument about whether or not the data processing complained of was “necessary” in this case, in the context of the statute and regulations.

However, on this point, the trial court was also conscious that it would be slow to interfere with a decision as to what was reasonably necessary in the context of a public health emergency. Further, these decisions were taken by elected representatives, who were best placed to assess the public interest.

In deciding not to grant leave in the Williams case, the judge said:

“The court is influenced by the fact that the applicant himself is not affected by the illegality he alleges and has insufficient standing. Furthermore, in reality, there is little or no real live issue to be determined by the court…”

Conclusion

Ultimately, the Court of Appeal stated that they were in “full agreement” with Mr Justice Colton’s observations, finding that they applied “with even greater force now”.

The court concluded that the appellant lacked standing; the challenge was wholly academic; the challenge served no utility; and there was no public interest or good reason that the court could discern which would justify determining such a “plainly academic matter”.

As a result, the appeal was dismissed.

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