In any event we reserve for future consideration, if and when particular facts
arise and the position of jurisdiction to challenge a s.7 warrant can be and has
been fully argued, whether an individual complainant may be able to mount a
claim. Even though Issue 5 was formulated as an agreed preliminary issue
between the parties, it is clear to the Tribunal that, given the agreed difficult
issues as to jurisdiction, we have an insufficient factual basis, assumed or
otherwise, to reach any useful conclusion.
Issue 6: A s.5 warrant and Articles 8/10
54.
We have concluded in respect of Issue 4 that a s.5 warrant is not as restricted
as the Claimants have contended, by reference to construction of it at domestic
law. Mr Jaffey submits that the Respondents are on a Morton’s Fork, and that
the wider the construction of s.5 for which they contend the more unlikely it is
that there will be sufficient safeguards for the purposes of the ECHR. We can
deal with this issue quite shortly.
55.
Part of Mr Jaffey’s case is again that, whereas s.7 provides for underlying
approvals, as referred to in paragraph 35(ii) above, s.5 does not. But the
essential question is, if an application for a warrant so specifies the property
proposed to be covered by it as to enable a Secretary of State to be satisfied as
to its legality, necessity and proportionality, and so that the property to be
covered is objectively ascertainable (paragraph 47 above), whether a warrant
so issued is in adequate compliance with the Convention.
56.
As to Mr Jaffey’s submissions in this regard:
i)
He refers to Malone v UK [1985] 7 EHRR 14 as his foundation, but in
that case, as he reminded us, the ECtHR made clear that “in its present
state the law in England and Wales governing interception of
communications for police purposes is somewhat obscure and open to
differing interpretations” long before the present suite of statutory
provisions. What the Court laid down as fundamental requirements, as
set out in paragraphs 67 and 68 of the Judgment, is that “there must be
a measure of legal protection in domestic law against arbitrary
interferences by public authorities . . . A law which confers a discretion
must indicate the scope of that discretion”.
ii)
He naturally referred to Weber and Saravia v Germany [2008] 46
EHRR SE5, which we addressed in detail in Liberty/Privacy (No.1),
and in paragraph 33 of that judgment we set out the “Weber
requirements”, numbering them from 1 to 6 for convenience:
“95. In its case-law on secret measures of surveillance, the Court
has developed the following minimum safeguards that should be set
out in statute law in order to avoid abuses of power: (1) the nature
of the offences which may give rise to an interception order; (2) a
definition of the categories of people liable to have their telephones
tapped; (3) a limit on the duration of telephone tapping; (4) the
procedure to be followed for examining, using and storing the data
obtained; (5) the precautions to be taken when communicating the