4. It is clear that if the letters exhibited had properly redacted the identity of the
telecommunications operator to which directions under s. 94 of the Act had been
directed, then the Tribunal would have been required, both under Rule 6 (1) and s. 94
(5), to uphold that redaction. The basis for the redaction, and the statement from the
Secretary of State, is that if the identity of the operator to whom a direction has been
given is disclosed then persons determined to avoid tracing and investigation by the
intelligence agencies would be careful to avoid using the communications network of
that operator. In principle that consideration does dictate that neither the identity of
the operator, nor the type of action required under the direction, should be disclosed.
That general principle is not challenged by Ben Jaffey QC for the Respondents who
made clear that he was not arguing that the identity of all telecommunications
operators to whom s. 94 directions had been given should be disclosed, but only the
name of the telecommunications operator which could be gleaned from the
imperfectly redacted correspondence in exhibit GCHQ/13.
5. The question is whether that principle continues to apply when the identity of the
telecommunications operator has been inadvertently disclosed to the Claimant. It is
difficult to see why it should not.
6. James Eadie QC for the Respondents accepts that in these circumstances the Claimant
cannot be prevented from using or deploying in its submissions any material
information which has been disclosed. The Article 6 rights of the Claimant are thus
protected.
7. However, there is no need for the Claimants to use that knowledge because the
identity of the operator is irrelevant to the issues which the Tribunal has to decide as
to the legality of the form of directions given by the Secretary of State under s.94. On
that issue the identity of the operator is not relevant evidence. So the Claimant seeks
to go further than the concession made by the Respondents allows, by arguing that the
public interest requires that the documents should be opened up so that the public can
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