MR JUSTICE BURTON
Approved Judgment
Belhadj and Security Service
(5) No information may be provided under this rule whose
disclosure would be restricted under rule 6(2) unless the
person whose consent would be needed for disclosure under
that rule has been given the opportunity to make
representations to the Tribunal. ”
6.
The Claimants submit that, by virtue of the fact that the LPP procedures have now
been declared to have been unlawful, if the Tribunal has found that there has been any
interception or obtaining of LPP material (i) a determination must be made by the
Tribunal in favour of that Claimant or those Claimants, and (ii) a summary of the
Tribunal’s determination including any findings of fact must be provided to that
Claimant or those Claimants – i.e. reasons for the determination must be given.
7.
The Respondents are naturally very concerned to protect national security. Their
submission is that if in this case a determination is made in favour of the Claimants
and/or reasons are given in favour of the Claimants then it would follow that this must
happen in every case, and this will include cases in which national security could be
put at risk by disclosure – for example in revealing that a particular person – Jihadi
John is used as an exemplar – is under surveillance and some procedural error has
occurred: and there would also be the risk of disclosure of procedures, technology,
methodology or intermediaries, which disclosure could have very damaging effects on
the ability of the Respondents to protect the public. Accordingly Mr Eadie QC, with
Ms Wheeler and Ms Grange, submits:
i)
Even in a case where the Tribunal considers that there has been a
contravention of Articles 8 or 10 (or a non-compliance with RIPA) the
Tribunal should still make no determination (the Respondents’ primary case):
a)
so that (paragraph 26(a) of their submissions of 6 March 2015) “In a
case where there has been a systemic determination that the regime
was not “in accordance with the law” under Article 8 ECHR and
where to make individual determinations would reveal the fact of
intercept, it should make a systemic determination alone. In the current
proceedings it should indicate that the declaration which was made on
26 February 2015 [set out in paragraph 2 above] is a sufficient remedy
under Article 8 and that no further remedy is appropriate in any
individual cases where it is alleged that LPP material may have been
intercepted”;
b)
but such that (paragraph 29 of those submissions) “the Respondents
accept that if, in an individual case, it is established that there has been
a substantial breach of the claimant’s Convention rights and the
claimant has suffered significant disadvantages as a result of the
Respondents’ unlawful conduct [as explained, in a footnote, by
reference to the ECtHR’s admissibility threshold for minimum
seriousness of complaints, and also by reference to the discretionary
principles in a domestic judicial review] (applicable to the Tribunal by
virtue of s.67(2) and s.67(3)(c) of RIPA) then it is likely that the
balance will require a determination in favour, notwithstanding NCND
principles”.