37
On a natural reading, s.45, as amended by the 1985 Act, preserved the power of
the Secretary of State and the duty of the telecommunications provider under
s.94. Mr. de la Mare submits that the savings in s.45 (2) (c) applied only to
voluntary disclosure. We disagree. As a matter of ordinary language, it applied
both to voluntary disclosure and to disclosure in fulfilment of a duty under s.94.
As in the case of s.45 as originally worded, there is no reason to construe the
amended section restrictively. Therefore, until RIPA came into force, the
Secretary of State was entitled to give directions to telecommunications
providers, and by then internet service providers, to provide communications
data as then existing to MI5 and GCHQ. By then communications data would
have permitted the location of the maker and recipient of a mobile telephone
call to be identified.
38
Prior to RIPA, the statutory powers of MI5 and GCHQ, in relation to
communications data, were contained in the two Acts which acknowledged their
existence. In s.1(2) of SSA 1989:
“The function of the service shall be the protection of national security
and, in particular, its protection against threats from espionage,
terrorism and sabotage, from the activities of agents of foreign powers
and from actions intended to overthrow or undermine Parliamentary
democracy by political, industrial or violent means.”
Its general functions were circumscribed by duties placed on the Director
General by s.2 (2).
“The Director General shall be responsible for the efficiency of the
service and it shall be his duty to ensure -(a) that there are arrangements for securing that no information is
obtained by the service except so far as necessary for the proper
discharge of its functions or disclosed by it, except so far as necessary
for that purpose…”
In the case of GCHQ, its functions are set out in s.3 (1) of the ISA 1994:
“… its functions shall be -(a) to monitor or interfere with electromagnetic, acoustic and other
emissions and any equipment producing such emissions and to obtain
and provide information derived from or related to such emissions or
equipment and from encrypted material…”
Its functions are circumscribed by the responsibility of the Director of GCHQ,
defined in the same as his counterpart in MI5 in s.4 (2). These powers provide
ample power to cover the storage and examination of communications data
obtained under s.94.
39
S.82 (1) of and Schedule 4 to RIPA amended s.45 (2), but did not amend
s.45 (1) of the 1984 Act (so that the exception there provided for “in the
course of ... duty” remained):
16