Article 8
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As noted above, Issues 2 and 3 are framed by reference to the “in accordance
with law” requirement in Article 8. That requirement is generally stated to
comprise (a) that the measures under review should have a basis in domestic
law, and (b) that the laws in question should be compatible with the rule of
law, in being generally accessible, foreseeable and contain adequate
safeguards against arbitrary use (Weber & Saravia v Germany [2008] 46
EHRR SE5, at paragraphs 84, 92 – 94).
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The Tribunal has considered the impact of Article 8 on the SIAs, and the
balance to be struck between national security and privacy, in a number of
cases, in which we took fully into account the judgments of the ECtHR, the
most material judgments being Weber and Kennedy v United Kingdom
[2011] 52 EHRR 4. We considered the jurisprudence and we set out our
conclusions, in particular in Liberty/Privacy at paragraphs 37-39, 82-91, 116122, 125 and 137, and again in Greennet, to the judgments in both of which
cases we refer. There has been some development in Luxembourg
jurisprudence, by reference to Digital Rights Ireland v Minister for
Communications, Marine and Natural Resources and Others [2015] QB
127 and the Advocate General's opinion in Tele2 Sverige AB v Post-Och
Telestyrelsen and Others [C-203/15 and C-698/15], delivered on 19 July
2016, which we shall have more opportunity to consider when we deal with
the adjourned EU law issues. So far as ECHR jurisprudence is concerned,
there have only been two recent cases bearing on the position, R E v United
Kingdom [2016] 63 EHRR 2, which we considered in Greennet at
paragraphs 79-80, and Szabo & Vissy v Hungary [Application 37128/14, 12
January 2016]. Szabo was a decision of the Fourth Section of the Court: there
were no safeguards in place at all, and it is clear from paragraph 70 of the
Judgment that it was not a case which was appropriate to lead to any new
jurisprudence, because: "It is not warranted to embark on
[such consideration] in the present case, since the Hungarian system of
safeguards appears to fall short even of the previously existing principles."
The decision of the Court, at paragraphs 88 and 89, was that the Hungarian
legislation was not sufficiently precise, effective and comprehensive on
surveillance and the Government had not proved the practical effectiveness of
any supervision arrangements. On its face the section 7/E (3) power granted
to the anti-terrorist organ was unlimited in the cases in which intelligence
gathering might be used. Both R E and Szabo were applying the principles in
Weber and Kennedy to the particular facts.
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If there is to be any new jurisprudence, this Tribunal and indeed the UK
Courts are not required to anticipate it, as is made clear by R (Ullah) v Special
Adjudicator [2004] 2 AC 323, not least in that the Respondents have no right
of appeal. Insofar as there is some support for a requirement for
judicial pre-authorisation, notwithstanding the view of this Tribunal in
Liberty/Privacy at paragraph 116(vi), or for someone who has been the
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