respect of any property so specified” in the circumstances there
provided for. This provision was replaced by ISA in 1994.
ii)
The Official Secrets Act 1989 makes it an offence for a member of the
Security and Intelligence Services by s.1 to disclose information
relating to security or intelligence without lawful authority and by s.8
to retain it without lawful authority or fail to take proper care to
prevent unauthorised disclosure of it.
iii)
A similar provision to safeguard information obtained by any of the
Intelligence Services, by limiting its disclosure and use to the proper
discharge of any of their functions (including the interests of national
security) is in s.19 of the Counter-Terrorism Act 2008.
iv)
The provisions of the Data Protection Act 1998 preserve
(notwithstanding any exemptions) the obligation on GCHQ to comply
with the Fifth and Seventh data protection principles, namely:
“5. Personal data processed for any purpose or
purposes shall not be kept for longer than is necessary
for that purpose or those purposes. …
7. Appropriate technical and organisational measures
shall be taken against unauthorised or unlawful
processing of personal data and against accidental loss
or destruction of, or damage to, personal data.”
7.
The Respondents accept and assert that as a matter of public law they have
been bound since February 2015 by the draft E I Code, which was
accompanied by a Ministerial statement to that effect. We are satisfied that
that is the case. Prior to such publication, there was the Covert Surveillance
and Property Interference Code (the “Property Code”), also pursuant to s.71 of
RIPA, which has been materially in its present form since 2002. The Property
Code continues in force, but under paragraph 1.2 of the E I Code where there
is an overlap between the two Codes the E I Code takes precedence.
8.
The parties agreed a List of Issues to be resolved at the hearing, which were
agreed during the period of preparation for the hearing as a result of excellent
cooperation between the parties, and with the very considerable assistance of
Jonathan Glasson QC, Counsel for the Tribunal. As a result of the very
careful preparation for, and the concise and persuasive presentation at, the
hearing by both parties, it was possible to conclude the oral argument in 3
days. There was a degree of context for the resolution of the issues, not just
by reference to the witness statements to which we have referred. The
Respondents accept that the provisions of Articles 8 and 10 of the European
Convention of Human Rights, which we do not need to set out, apply to
Privacy International as a campaigning NGO, and, at least for the purposes of
this hearing, that they both apply to the internet companies: in any event there
is no material difference in the applicability of both Articles, which have been,
as in previous hearings, argued in tandem. As to other matters: