public electronic communications network, notwithstanding that it relates to
him in a capacity other than as the provider of such a network.
(4) The Secretary of State shall lay before each House of Parliament a copy of
every direction given under this section unless he is of opinion that disclosure
of the direction is against the interests of national security or relations with
the government of a country or territory outside the United Kingdom, or the
commercial interests of any person.
(5) A person shall not disclose, or be required by virtue of any enactment or
otherwise to disclose, anything done by virtue of this section if the Secretary of
State has notified him that the Secretary of State is of the opinion that
disclosure of that thing is against the interests of national security or relations
with the government of a country or territory outside the United Kingdom, or
the commercial interests of some other person.
(6) The Secretary of State may, with the approval of the Treasury, make grants
to providers of public electronic communications networks for the purposes of
defraying or contributing towards any losses they may sustain by reason of
compliance with the directions given under this section.
(7) There shall be paid out of money provided by Parliament any sums
required by the Secretary of State for making grants under this section.
(8) This section applies to OFCOM and to providers of public electronic
communications networks.”
17. The Secretary of State’s power to give directions under section 94, whether of
a general character (s.94 (1)) or requiring specific action (s.94 (2)) is limited to
directions which appear to the Secretary of State to be “necessary” in the
interests of national security or international relations (s.94 (1)) and which the
Secretary of State believes to be “proportionate” to what is sought to be
achieved. The Secretary of State must also first consult with the person to
whom the direction is to be given (s.94(1) and (2)).
The HRA
18. Article 8 of the ECHR is a “Convention right” for the purposes of the HRA: s.
1(1) of the HRA. Art. 8, set out in Sch. 1 to the HRA, provides as follows:
“(1) Everyone has the right to respect for his private and family life, his home
and his correspondence.
(2) There shall be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevent of disorder or crime, for
the protection of health and morals, or for the protection of the rights and
freedoms of others.”
19. By s. 6(1):
“It is unlawful for a public authority to act in a way which is incompatible
with a Convention right.”
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