interests of national security, to impose the necessary discipline on GCHQ,
and give adequate protection against arbitrary power: further there is, as we
have been satisfied, adequate oversight of GCHQ’s compliance by the
Intelligence Services Commissioner.
78.
The nub of the problem arises in two respects, both emphasised by Mr Jaffey:
i)
The impact of the fact that until February 2015, i.e. throughout the
period we are addressing, it was not admitted by the Respondent that
GCHQ carried out CNE;
ii)
The impact of the decision of R.E. v UK, in relation to the
consideration by the ECtHR.
We will deal with the second submission first.
79.
It is important to bear in mind that, as set out in paragraph 74(iii) above, the
Court in R.E. v UK was addressing a specific and different question, the
matter of adequate protection for LPP communications in respect of covert
surveillance. We deal ourselves with LPP as a separate topic in Issue 10
below, and we are not concerned with it in our present considerations. We set
out the conclusions of the Court in R.E. v UK in relation to the Revised Code
(the Property Code) and Weber (4) to (6), after it has recorded its conclusion
that it was satisfied in relation to Weber (1) and (2) (in paragraph 136) and
Weber (3) (in paragraph 137):
“138. In contrast, fewer details concerning the
procedures to be followed for examining, using and
storing the data obtained, the precautions to be taken
when communicating the data to other parties, and the
circumstances in which recordings may or must be
erased or the tapes destroyed are provided in Part II of
RIPA and/or the Revised Code. Although material
obtained by directed or intrusive surveillance can
normally be used in criminal proceedings and law
enforcement investigations, paragraph 4.23 of the
Revised Code makes it clear that material subject to
legal privilege which has been deliberately acquired
cannot be so used (see paragraph 75 above). Certain
other safeguards are included in Chapter 4 of the
Revised Code with regard to the retention and
dissemination of material subject to legal privilege (see
paragraph 75 above). Paragraph 4.25 of the Revised
Code provides that where legally privileged material
has been acquired and retained, the matter should be
reported to the authorising officer by means of a review
and to the relevant Commissioner or Inspector during
his next inspection. The material should be made
available during the inspection if requested.
Furthermore, where there is any doubt as to the
handling and dissemination of knowledge of matters
which may be subject to legal privilege, Paragraph 4.26