MR JUSTICE BURTON:
1
This is the judgment of the Tribunal, to which all Members have contributed.
2
The Claimant before the Tribunal is Privacy International, a NonGovernmental Organisation, working in the field of defending human rights at
both national and international levels; they are represented by Mr. Thomas de
la Mare QC, Mr. Ben Jaffey and Mr. Daniel Cashman. The Respondents are
the Secretary of State for Foreign and Commonwealth Affairs ("the Foreign
Secretary") and the Secretary of State for the Home Department ("the Home
Secretary"), and the three Security and Intelligence Agencies (SIAs), being
GCHQ, the Security Service (MI5), and the Secret Intelligence Service (MI6),
for all of whom Mr. James Eadie QC, Mr. Andrew O'Connor QC, and Mr.
Richard O'Brien have appeared. Mr Jonathon Glasson QC has appeared as
counsel for the Tribunal, and gave particular assistance during the
interlocutory period leading up to the hearing.
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The proceedings were brought on 5th June 2015 relating to the SIAs’
acquisition, use, retention, disclosure, storage and deletion of Bulk Personal
Datasets ("BPDs"), whose existence was publicly acknowledged in
March 2015 by the Respondents in evidence to, and then in a Report by, the
Intelligence Security Committee of Parliament ("ISC"). The proceedings were
amended in September 2015 to add claims in relation to the use of s.94 of the
Telecommunications Act 1984 ("s.94" and “the 1984 Act”) by the Home and
Foreign Secretaries to give directions to Public Electronic Communications
Networks ("PECNs") to transfer bulk communications data to GCHQ and MI5
("BCD").
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This case concerns the acquisition and use by the SIAs of bulk data. BCD is
acquired by GCHQ and MI5 under directions issued under s.94. The
communications data thus collected will include the “who, when, where and
how” of both telephone and internet use (as it is put in paragraph 12 below),
and this may include the location of mobile and fixed line phones from which
calls are made or received, and the location of computers used to access the
internet. BCD does not include the content of any such communications,
which may only be obtained under an interception warrant. BPD is acquired
and used by GCHQ, MI5 and MI6. Such data, acquired by overt or covert
means, includes considerable volumes of data about biographical details,
commercial and financial activities, communications and travel, as well as
communications data obtained under s.94 arrangements or by interception
under a warrant. All such bulk data, both BCD and BPD, may be searched by
the SIAs to discover details about persons of intelligence interest. These are
important and wide ranging capabilities, which have only recently come to
light. The Claimant contends that they infringe the right to private life under
Article 8 of the ECHR. The Respondents contend that their use of such powers
is lawful and essential for, inter alia, the protection of national security.
3