MR JUSTICE BURTON
Approved Judgment
Belhadj and Security Service
discover if the agencies hold information about them”: this of course is said
in the context of the concession and Declaration now made. The
Respondents are obviously very conscious, as is the Tribunal, that this
judgment will set a precedent for future cases. Although s.17 of RIPA
(which excludes from legal proceedings reference to interception) is
disapplied by s.18(1)(c) to any proceedings before the Tribunal,
nevertheless that principle, of protecting any risk to the continued lawful
interception of communications is uppermost in the concerns of the
Respondents, who are responsible for public safety.
16.
(iii)
Any disclosure that there has been interception enables those who discover
that they have been intercepted to alter their conduct in future so as to avoid
such interception. Mr Jaffey’s submission (paragraph 56(d) of his 3 March
Submissions) that “disclosure of a proper statement of the Tribunal’s
reasons and decision does no harm to the public interest” is wholly
mistaken, and rather the Tribunal should adopt an approach which does not
risk such harm.
(iv)
The Respondents submit that there may be no “relationship of
proportionality as between the finding of a breach by the Agencies and the
extremely serious damage that would be caused by a public statement
confirming the fact of interception”. He submitted orally that Parliament
should not be taken to have required that this Tribunal should put public
safety at risk because of an error or series of errors by the gatekeeper of
public safety.
(v)
S.68(4) should not be interpreted as being a blanket statutory ouster of
NCND. National security is still the key, and by s.67(3)(c) the Tribunal’s
duty in relation to its findings from its investigations “to determine the
complaint by applying the same principles as should be applied by a court
on an application for judicial review”, allows it a discretion in relation to its
rulings.
(vi)
Mr Eadie heavily emphasised the safeguards which there would be for an
individual, after an investigation by the Tribunal, namely a report to the
Commissioner under s.68(3)(b) and to the Prime Minister under s.68(5),
and orders for destruction and quashing of relevant documents or
instruments, even though such would not be published.
Mr Jaffey emphasised the seriousness of the breaches now conceded by virtue of there
not being in place a lawful system for dealing with LPP, the significance of the
Tribunal’s role, the need for public disclosure and confidence where there has been
contravention of Article 8, and the need, so far as possible, for the giving of reasons
by the Tribunal in order to comply with Article 6, always subject to the requirements
of NCND, which he fully accepted, but which he submitted was disapplied, or at any
rate diminished, once there was a contravention of Article 8 or other unlawful act
found by the Tribunal. The Claimants submitted, fortified by the submissions of the
Government in Kennedy, as recited and incorporated with approval by the ECtHR,
and set out in paragraph 14(iii) above, and so far as necessary the extracts from
Hansard, that the statutory scheme is or should be clear, as follows: