(ii) the provisions of paragraph 9.3 and 9.7 of the Code:
(iii) the under the waterline arrangements set out in paragraph 76 above,
which we are satisfied were adequately signposted:
(iv) the oversight by the Intelligence Services Commissioner of GCHQ’s
compliance with their obligations.
Taken together, these are safeguards designed to prevent any arbitrary exercise
of the powers to conduct CNE. But none of the safeguards would have been an
answer to a system concluded (and now conceded) to have been inadequate in
respect of its protection of LPP communications.
81.
As to the first submission, as referred to in paragraph 78 (i) above, it is clear
that prior to February 2015 there was no admission that property interference by
GCHQ (governed by the Property Code) extended to CNE by the use of a s.5
warrant (or a fortiori a s.7 authorisation). Nevertheless it was quite clear that at
least since 1994 the powers of GCHQ have extended to computer interference
(under s.3 of ISA). It was thus apparent in the public domain that there was
likely to be interference with computers, ‘hacking’ being an ever more familiar
activity, namely interference with property by GCHQ (and see in particular the
1990 Hansard references in paragraph 18 (iii) above), and that if it occurred it
would be covered by the Property Code. Use of it was thus foreseeable, even if
the precise form of it and the existence of its use was not admitted.
82.
The question is whether we are satisfied that there was, prior to February 2015,
adequate protection from arbitrary interference. If there was inadequacy within
the Property Code, as compared with the EIC, we do not conclude that the
inadequacy was in the circumstances such as to constitute a contravention of
Articles 8/10. Compliance with Weber (4) to (6) will in our judgment mean the
provision, particularly in a national security context, of as much information as
can be provided without material risk to national security. In our judgment, not
least because of the consequences of a conclusion of unlawfulness simply by
virtue of a perceived procedural insufficiency, a conclusion that procedural
requirements or the publication of them can be improved (i) does not have the
necessary consequence that there has prior thereto been insufficient compliance
with Weber (4) to (6) and (ii) does not constitute such a material noncompliance as to create a contravention of Article 8. This Tribunal sees it as an
important by-product of the exercise of its statutory function to encourage
continuing improvement in the procedures adopted by the Intelligence Agencies
and their publication (and indeed such improvement took place as a
consequence of our Judgments in Liberty/Privacy No.1, Liberty/Privacy No.2
and Belhadj), but it does not conclude that it is necessary, every time an
inadequacy, particularly an inadequate publication, is identified, to conclude
that that renders all previous conduct by the Respondents unlawful. The E I
Code is plainly a step forward by the Respondents, which this Tribunal
welcomes: taking the Property Code together with the other safeguards which
we have set out in paragraph 80 above, we are satisfied that there was prior to
that step adequate protection from arbitrary interference.