Belhadj and Security Service
MR JUSTICE BURTON
Approved Judgment
in Committee of the then Regulation of Investigatory Powers Bill, when she
said:
“We expect to provide for successful complainants to
be given details of the findings in question. However,
there is no such elaboration for those individuals in
whose favour the Tribunal has not found . . . Were
reasons to be given, or confirmation that a person had
been the subject of interception or other surveillance
techniques, a person could apply to the Tribunal
merely to discover whether he had been under
surveillance [an important justification for the NCND
principle].
...
We must prevent individuals from using tribunal
proceedings to circumvent our ‘neither confirm nor
deny’ policy. That is why there is a restriction on what
the tribunal can say when it does not find in favour of
the complainant. When it does find in favour of the
complainant it will be entitled to give reasons and to
award damages [though note: not ‘obliged’].
...
[In answer to a question from Mr Allan MP “If there
has been a breach of procedures but it is not too
serious, will a subsection (4) determination always be
made in favour of the complainant or will
proportionality considerations be taken into
account?”] . . . “We have no intention of limiting the
determination when a tribunal makes a finding,
however technical, in a complainant’s favour. ”
15.
Mr Eadie submits as follows:
(i)
The role of the Tribunal in the context of national security is deliberately
limited by Parliament. S.68(4) is restrictive, Rule 6(1), imposing the duty
on the Tribunal to secure that information is not disclosed to an extent, or in
a manner, that is contrary to the public interest or prejudicial to national
security . . . or the continued discharge of the functions of any of the
Intelligence Services”, is paramount, and that is made clear by the specific
cross-reference to it in Rule 13(4), relating to the duty to provide
information.
(ii)
The issues of remedy for a complainant are (as he submits in paragraph 4(a)
of his Submissions) “highly complex and potentially of the very greatest
security concern – particularly in the light of the real potential for both a
very large number of claims to be made to the IPT and for applications to
be used by those of real security interest as a mechanism for seeking to