subject of interception to be notified when there has been a material error by
the Respondents (as proposed in clause 209 [Error Reporting] of the
Investigatory Powers Bill), it is not for this Tribunal to lay down new
requirements, and (see the transcript at Day 2, page 109) it does not appear
that Mr. de la Mare was submitting that we should do so.
62
Accordingly, by reference to our considered assessment of the ECHR
jurisprudence, we can summarise in short terms what we conclude the proper
approach is:
(i) There must not be an unfettered discretion for executive action.
There must be controls on the arbitrariness of that action. We must be
satisfied that there exist adequate and effective guarantees against
abuse.
(ii) The nature of the rules fettering such discretion and laying down
safeguards must be clear and the ambit of them must be in the public
domain so far as possible; there must be an adequate indication or
signposting, so that the existence of interference with privacy may in
general terms be foreseeable.
(iii) Foreseeability is only expected to a degree that is reasonable in
the circumstances, being in particular the circumstances of national
security, and the foreseeability requirement cannot mean that an
individual should be enabled to foresee when the authorities are likely
to resort to secret measures, so that he can adapt his conduct
accordingly.
(iv) It is not necessary for the detailed procedures and conditions
which are to be observed to be incorporated in rules of substantive
law.
(v) It is permissible for the Tribunal to consider rules, requirements or
arrangements which are ‘below the waterline’ i.e. which are not
publicly accessible, provided that what is disclosed sufficiently
indicates the scope of the discretion and the manner of its exercise.
(vi) The degree and effectiveness of the supervision or oversight of the
executive by independent Commissioners is of great importance, and
can, for example in such a case as Kennedy, be a decisive factor.
As we concluded at paragraph 125 of Liberty/Privacy, there must be:
"adequate arrangements in place to ensure compliance with the statutory
framework and the Convention and to give the individual adequate protection
against arbitrary interference, which are sufficiently accessible, bearing in
mind the requirements of national security and that they are subject to
oversight." In addition, as we concluded at paragraph 82 of Greennet:
"Compliance with Weber ... will in our judgment mean the provision,
particularly in a national security context, of as much information as can be
provided without material risk to national security. In our judgment, not least
because of the consequences of a conclusion of unlawfulness simply by virtue
of a perceived procedural insufficiency, a conclusion that procedural
requirements, or the publication of them, can be improved (i) does not have
the necessary consequence that there has prior thereto been insufficient
compliance with Weber ... and (ii) does not constitute such a material non25