Conclusions as to BCD and BPD in the period pre-Avowal
83
Criticisms are made by the Claimant of the BPD and BCD systems which
antedate March 2015, including specifically processes relating to BPD, which
were discontinued (or corrected) in (severally) 2012, 2013, 2014 and February
2015 (paragraphs 78(b), 78(e), 77 and 78(c) of the Claimant's Skeleton
Argument), and in relation to BCD in November 2015 (paragraph 68(d)). In
particular there was no adequate dealing with legal and professional privilege
until after this Tribunal's decision in Belhadj in February 2015. However most
of the criticisms were either overtaken by the public avowal of the existence of
BCD and BPD and the publication of the Handling Arrangements, or they
remain as criticisms now, to consideration of which we shall return below.
84
Our conclusion is in any event that by virtue of the matters which we have set
out in paragraphs 67 to 81 above:
(i) The BPD regime failed to comply with the ECHR principles which
we have above set out throughout the period prior to its avowal in
March 2015.
(ii) The BCD regime failed to comply with such principles in the period
prior to its avowal in November 2015, and the institution of a more
adequate system of supervision as at the same date.
In those circumstances there is no call for consideration of the details of such
systems prior to those dates, save insofar as there are continuing criticisms, as
considered below.
Post-Avowal
85
We shall therefore consider whether there can be said to be compliance of the
regimes with the “in accordance with law” requirement of Article 8 in respect
of the period since November 2015 (BCD) and March 2015 (BPD).
86
We have already stated in paragraph 61 above that we do not change our
previously concluded views in Liberty/Privacy that, provided there are
otherwise adequate safeguards, the absence of prior judicial authorisation or of
subsequent notification to a subject of interception does not render the system
in breach of Article 8, though in respect of both of these aspects there may be
changes if Parliament passes the new Bill as it presently stands. However,
neither in that regard nor in any other do we consider it necessary or
appropriate (as stated in paragraph 19 above) to carry out (nor have we been
invited to carry out) some kind of tick-box exercise to see what changes or
improvements are contained in the present Bill. Further, just as the fact that
there have been improvements does not necessarily mean that the previous
system prior to the improvements was non-compliant (paragraph 20 above),
similarly the fact that there could be further improvements does not mean of
itself that the present system is non-compliant.
32