MR JUSTICE BURTON
Approved Judgment
Belhadj and Security Service
decision could be made, and a more substantial and significant breach (as
suggested by the Respondents per paragraph 7(i)(b) above). Mr Jaffey
submitted orally that the concession there set out by the Respondents, made
because, as he submitted, they were driven to such concession due to the
unattractiveness of their position, was incompatible with the wording of
RIPA. Under RIPA there is no requirement to show a significant
disadvantage or substantial breach in order to succeed with a complaint: it
simply has to be unlawful conduct. He submitted that this was entirely
inconsistent with the clear answer given by the Minister in Parliament.
(iii)
There is any event no room for some ‘third way’ to avoid disclosure of an
unlawful act within the very framework of s.68(4). It was in fact Mr
Glasson who first used the word “binary” in argument in relation to its
framework: a choice of two courses, and two alone, a statement either of a
determination in favour of a complainant or of no determination in his
favour. Mr Tomlinson completed this argument by pointing out the
existence of the words “as the case may be”. This he submitted can only
mean that a finding in favour of a complainant leads to the first, and a
finding against a complainant leads to the second, of the two possible
statements.
(iv)
The Claimants accepted that there was however more flexibility in relation
to the giving of reasons, by reference to the Rules, than in relation to the
giving of the determination statement itself. Mr Jaffey described the latter
as the “absolute bedrock, the bare minimum, that the Tribunal has to do”,
but both he and Mr Tomlinson accepted that the mandatory obligations to
provide a successful complainant “in addition to any statement under
s.68(4)” with information, and in particular with a summary of the
determination including any findings of fact, were subject to the overriding
duty of Rule 6(1), by virtue of Rule 13(4).
(v)
The gloss put orally on the Respondents’ primary case by Mr Eadie in
argument was not persuasive. He submitted that in an individual case
governed by the systemic concession declaration, as here, there could
automatically be a determination in favour of a claimant alleging
interception of LPP, if such was mandatory, and that the reasons, which are
accepted to be subject to Rule 6(1), could then be abbreviated. This would
mean that every complainant complaining about interception of LPP would
have an automatic determination in his favour, and provided that the
reasons were exiguous enough, there would be no disclosure as to whether
in his case there had been interference or not. Unless nothing at all was said
by way of reasoning, and no compensation was paid, this course would be
bound, and in a most unsatisfactory way, to lead to the same speculation
and inference as the Respondents are trying to avoid, but without any
resolution of the complainant’s actual complaint.
(vi)
As for the Respondents’ secondary case, there is, as Mr Tomlinson put it in
oral argument, no kind of “half way house between no determination and a
determination in favour”, permitted by the statute. The suggested
justification for it, by reference to the approach of the ECtHR in dealing
with claims before it, he submitted to be irrelevant. Just as this Tribunal is