assure himself of the adequacy of the [SIAs’] handling arrangements and their
compliance therewith."
14
S.94 directions, and BCD, which had previously been disclosed to the ISC,
were not publicly avowed until November 2015, when they were disclosed in
the context of the draft Investigatory Powers Bill then being presented to
Parliament. Although Sir Stanley Burnton's predecessor as I C C, Sir Anthony
May, was asked in February 2015 by the Prime Minister to oversee the s.94
directions on a non-statutory basis, and agreed to do so, provided that he was
given extra staff, the I C C was not able effectively to start doing so until at
least October 2015.
15
Handling Arrangements for BPD and for s.94 were both published on 4th
November 2015, and were supplemented by Closed Handling Arrangements in
relation to each of the SIAs, which have been subsequently, during the course
of these proceedings, disclosed, redacted in part.
The Issues
16
On 7th July 2016 the parties agreed an amended list of issues. They are
helpfully summarised in paragraph 11 of the Claimant's Skeleton:a) Issue 1: Section 94 TA under domestic law: Is it lawful as a matter
of domestic law to use section 94 TA to obtain BCD?
b) Issue 2: Is the section 94 TA regime in accordance with the law?
This issue is to be considered in three time periods. First, prior to the
avowal of the use of section 94 to obtain BCD [4th November 2015].
Secondly, from avowal to the date of hearing. Thirdly, as at the date of
hearing.
c) Issue 3: Is the BPD regime in accordance with the law? This issue is
to be considered in four time periods. First, prior to the avowal of the
holding of BPDs [March 2015]. Secondly, from avowal to the
publication of the BPD handling arrangements. Thirdly, from
publication to the date of the hearing. Finally, as at the date of
hearing.
d) Issue 4: Are the section 94 regime and the BPD regime
proportionate?
There are also EU Law issues, which have been adjourned to a hearing in
December.
17
These issues require some elucidation:
(i) Although the first issue is confined to the legality of the use of the
power under s. 94 to obtain communications data in bulk, the other
issues are not so confined. The other issues extend not just to the
obtaining of data, but also to the uses to which such data may be put by
9