(Brown) v Secretary of State for the Home Department [2015]
UKSC 8 at paragraph 24, as to the relevance of a subsequent
amendment to interpretation of the statute. In any event he is content
to rely if necessary on the duties of the Secretary of State as to legality
and necessity already, as he puts it, “hard-wired” into s.5 prior to 2000.
He submits that the words of the North Briton warrant, referred to in
paragraph 35(i) above, would, subject to questions of necessity and
proportionality in the particular circumstances, certainly be sufficiently
specified. Another example canvassed in the course of the hearing was
“all mobile phones in Birmingham”. This could, submitted Mr Eadie,
be sufficiently specified, but, save in an exceptional national
emergency, would be unlikely to be either consistent with necessity or
proportionality or with GCHQ’s statutory obligations.
iv)
Mr Eadie submits that (as is indeed said in its accompanying Guide)
the IP Bill, albeit in respect of a differently named warrant, brings
together powers already available, and the descriptions of targets in the
new proposed clause 83 would, subject to the requirements of necessity
and proportionality, all be consistent with the existing s.5.
37.
We accept Mr Eadie’s submissions. Eighteenth Century abhorrence of general
warrants issued without express statutory sanction is not in our judgment a
useful or permissible aid to construction of an express statutory power given to
a Service, one of whose principal functions is to further the interests of UK
national security, with particular reference to defence and foreign policy. The
words should be given their natural meaning in the context in which they are
set.
38.
The issue as to whether the specification is sufficient in any particular case
will be dependent on the particular facts of that case. The courts frequently
have to determine such questions for example in respect of a warrant under the
Police Act 1997 s.93, when the issues, by reference to the particular facts
would be fully aired in open. That is not possible in relation to a s.5 warrant,
but it may still be subject to scrutiny by the Intelligence Services
Commissioner, by the ISC and, if and when a complaint is made to this
Tribunal, then by this Tribunal. But the test is not in our judgment different Are the actions and the property sufficiently identified? The Home
Secretary’s own words as recorded in paragraph 42 of the ISC Report, set out
in paragraph 32 above, relating to a s.8(1) warrant, are applicable here also. It
is not in our judgment necessary for a Secretary of State to exercise judgment
in relation to a warrant for it to be limited to a named or identified individual
or list of individuals. The property should be so defined, whether by reference
to persons or a group or category of persons, that the extent of the reasonably
foreseeable interference caused by the authorisation of CNE in relation to the
actions and property specified in the warrant can be addressed.
39.
As discussed in the course of argument, the word under consideration is
simply specified, and this may be contrasted with other statutes such as those
relating to letters of request, where the requirement of the Evidence
(Proceedings in Other Jurisdictions) Act 1975 is for “particular documents
specified”. There is no requirement here for specification of particular