the BCD and BPD regimes under which such data were obtained and retained
were, until those dates, non-compliant with Article 8 and therefore unlawful.
ISSUE 4:Proportionality
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Since the hearing, Mr. Anderson QC has published, as referred to in paragraph
21 above, his Bulk Powers Review. It is plainly highly relevant to this issue,
and we propose to grant both parties the opportunity to make submissions
upon it before reaching our conclusions in respect of this issue, which we
consequently adjourn, to come on to be heard at the same time as the EU law
issues.
_____________
APPENDIX A: THE SECTION 94 REGIME
1. The regime in respect of section 94 of the Telecommunications Act 1984
which is relevant to the activities of the Intelligence Services principally
derives from the following statutes:
(a) the Security Services Act 1989 (“the SSA”) and the Intelligence Services
Act 1994 (“the ISA”);
(b) the Counter-Terrorism Act 2008 (“the CTA”);
(c) Section 94 of the Telecommunications Act 1984;
(d) the Human Rights Act 1998 (“the HRA”);
(e) the Data Protection Act 1998 (“the DPA”); and
(f) the Official Secrets Act 1989 (“the OSA”).
2. In addition, GCHQ and MI5 have a number of internal arrangements in
relation to Section 94; see below.
3. In addition:
(a) MI5 has, as a matter of practice and policy, applied the procedures and
safeguards contained in the Acquisition and Disclosure of Communications
37