inferior. Mr Eadie emphasises that the Tribunal, and indeed any court, should
not discourage improvement by immediately concluding that what was in
existence prior to an improvement was defective. He obviously accepts our
conclusion at paragraph 23 of Liberty/Privacy No.2 that, before the
disclosures prior to and in our judgment in that case, the regime governing
information sharing under Prism had been unlawful, but he submits, as is the
case, that there had been effectively no disclosure at all prior to that of the
existence of any arrangements, adequate or otherwise.
73.
The question for us is, as it was for the ECtHR in Liberty v UK [2008] 48
EHRR 1 (at paragraph 69), whether at the time the regime complied, and that
time in these proceedings is, pursuant to the agreed List of Issues at paragraph
4(d), 1 August 2009. The Property Code was in existence throughout the
period from August 2009 to February 2015 and did not materially change, and
so we have addressed the most recent version (2014).
74.
There are underlying issues:
i)
It was not, at any rate with any great force, sought to be argued by Mr
Jaffey that the position was any different in relation to Weber (1) to (3)
prior to and subsequent to February 2015, and we are satisfied that our
conclusions in Issue 6 above apply prior to February 2015, and we
shall address for the purposes of this Issue only Weber (4) to (6).
ii)
It was common ground before us that Weber (1) to (6) constitute a
minimum to be complied with, but that there are other factors to
consider such as:
iii)
a)
The existence and standard of oversight. It is entirely clear to
us that both sides have relied upon his Reports, and that the
oversight by the Intelligence Services Commissioner has been
of great value.
b)
The existence of sufficiently signposted underlying
arrangements, which are adequate to control arbitrary action by
the Respondents. It is important to bear in mind, for example,
that the Tribunal concluded in Liberty/Privacy No.1 that the
s.8(4) regime complied with the Convention, after taking into
account the arrangements, which we concluded had been
adequately signposted prior to any further disclosures by the
Respondent (e.g. paragraph 140). This did not involve or
require disclosure of the detail of those arrangements.
R.E. v UK requires to be addressed specifically, as the only relevant
ECtHR decision since Liberty/Privacy. The Court was addressing the
Property Code (there called the “Revised Code”), and contrasting it
with the Interception of Communications Code of Practice (“the
Interception Code”), which the ECtHR had approved in Kennedy v
UK [2011] 52 EHRR 4. The case before it concerned the issue of the
safeguarding of legally and professionally privileged (“LPP”)
communications in relation to covert surveillance.
The Court