Issue 8: S.5 post-February 2015 (Weber (4) to (6)
64.
Issue 8 is: Whether the s.5 regime is compliant with the Convention since
February 2015. We now address Weber (4) to (6). The E I Code applies to
both s.5 and s.7 (see paragraph 49 above), and, as Mr Jaffey accepted, the
Respondents, having publicly accepted that they are acting and will act in
accordance with the draft Code, are as a matter of public law bound by the
Code both in relation to s.5, during the period prior to its being finally
approved by Parliament (see paragraph 7 above), and s.7. However in the
light of our conclusions in respect of Issue 5, we now address only the
question of s.5, though in relation to this Issue the answer would be the same
in respect of s.7.
65.
We do not need to repeat all of what we said in Liberty/Privacy (No.1) (in
particular at paragraphs 38-41) by way of summary of the ECtHR
jurisprudence. It suffices to cite what we said at paragraph 41(d), namely:
“It is in our judgment sufficient that:
i)
ii)
Appropriate rules or arrangements exist and are publicly
known and confirmed to exist, with their content sufficiently
signposted, such as to give an adequate indication of it . . .
They are subject to proper oversight.”
The oversight relevant to this issue by the Intelligence Services Commissioner
seems to us to have been admirable in its dedication to raising any questions of
concern.
66.
In addition to the E I Code, in November 2015 there was disclosure during
these proceedings of below the waterline arrangements applicable to GCHQ,
whose existence is highlighted in the E I Code (e.g. at paragraph 64) and in
statute, as canvassed in our judgments in Liberty/Privacy No.1 and No.2.
Insofar as those arrangements add something new which had not been
previously signposted, and which would not therefore have been
accessible/foreseeable, then any unlawfulness in relation to the published code
would only have been made good by the publication of such arrangements in
November. Mr Jaffey has submitted that the arrangements should have been
disclosed earlier, but, as will appear, we do not conclude that the content of
those arrangements as now disclosed adds anything material to the previously
published Code.
67.
There has been no material addition to ECtHR jurisprudence since
Liberty/Privacy with the exception of R.E. v UK, to which we shall return
below, and in which (particularly at paragraph 133) the Court repeated the
same principles in the context of national security.
68.
It is common ground that compliance with the Convention can be addressed
by reference to the Weber requirements, and in this regard specifically by
Weber (4) to (6). The significant paragraphs of the E I Code relating to
Weber (4) to (6) are in Sections 5 and 6, which are attached as Appendix II to