this judgment, though Weber (6) may not be directly applicable to the use of
CNE so far as it consists of ‘implants’. We have attached the paragraphs in the
form in which they were put before Parliament in November 2015. Although
there have been some changes in the draft E I Code during the period of public
consultation, and the parties helpfully provided us with tracked changes to
explain them, there were none which appeared to us to be material: Mr Jaffey
pointed to a number of changes (two in the Sections included in Appendix 2,
one in paragraph 6.2 and one in 6.5) of the words must to should, but he was
not able to identify to us, and nor can we see, any material difference in that
regard. There are then the below the waterline arrangements which have been
disclosed from GCHQ’s policies, relating to storage of and access to data, and
handling/disclosing/sharing of data, obtained by CNE operations. Neither Mr
Eadie nor Mr Jaffey suggested that there were any apparent lacunae or alleged
inadequacies in the Code which were made good by the disclosure of these
arrangements.
69.
70.
There were very limited criticisms made by Mr Jaffey, in the context of
Weber (4) to (6), of the E I Code (even without the supplementary
arrangements):
i)
He was critical of the apparent lack of provision for record keeping in
relation to intrusions pursuant to s.7, but, quite apart from the fact that
this related to s.7 and not to s.5, in fact it is clear that, as indeed he
accepted, a combination of paragraphs 5.1 and 7.2 of the E I Code does
require the keeping of records in relation to “the details of what
equipment interference has occurred”.
ii)
He described as “Delphic” a reference in Mr Martin’s witness
statement to the nature of a recommendation by the Intelligence
Services Commissioner with regard to a s.5 record, but accepted the
explanation provided by Mr Eadie during the course of his
submissions: Day 3/74.
We have no doubt at all that, insofar as compliance must be shown with
Weber (4) to (6), the E I Code does so comply, and has so complied since its
publication in 6 February 2015, since which time it has been binding in law on
the Respondents. We are satisfied that the requirements for records are
sufficient and satisfactory, and that adequate safeguards have been in place at
all times for the protection of the product of CNE, and that there exists a
satisfactory system of oversight.
Issue 9: S.5 prior to February 2015
71.
The issue is: Did the s.5 regime prior to February 2015 accord with the
Convention (it is accepted that, as set out in paragraph 49 above, the Property
Code did not apply to s.7)?
72.
This is obviously a more difficult question, because, by definition, if the
publication of the E I Code in February 2015 improved the position, and made
sufficiently public the arrangements which govern the use by the Respondents
of their powers, the published arrangements prior to February must have been