MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
standard template (and possibly the first sentence of paragraph
2) suggest that the Tribunal is being invited to consider every
potential source of information about the Claimants, from
whatever source, including whether there has been compliance
with “internal procedures” in some unspecified way, those
parts of the Grounds are so broad-ranging and ill-defined that
they cannot properly serve to widen the complaints beyond the
scope of the legal issues which were considered in
Liberty/Privacy.
…….
20. It is submitted that three matters are central to the
proportionate remedial response to the Privacy campaign:
a. The Tribunal has already scrutinised the legality of the
regime in detail in the Liberty/Privacy proceedings. It has
made findings about the lawfulness of the regimes and, in
respect of the intelligence sharing regime, the past
forseeability deficiency. That deficiency was corrected by
the further disclosures which were put into the public
domain during those proceedings.
b. In… [Liberty/Privacy No 3] the Tribunal examined what
had occurred in respect of each of the individual Claimants
and it made determinations in favour of the Third and Sixth
Claimants. However the breaches which had occurred were
technical in the sense that, in relation to the Third Claimant,
the information was not accessed after the expiry of the
relevant retention time limit (§14) and, in relation to the
Sixth Claimant, no use whatever was made of any
intercepted material, nor any record retained (despite the
procedure for selection having been in error in that case)
and therefore no material detriment, damage or prejudice
occurred.
Importantly, the Tribunal indicated in
[Liberty/Privacy No 3] that steps should be taken to ensure
that neither of the breaches of procedure occurs again and
the Tribunal indicated it would be making a CLOSED report
to the Prime Minister pursuant to s.68(5) of RIPA. Thus the
Tribunal has itself taken steps to ensure that such breaches
do not occur again.
c. The Tribunal has also approved and emphasised the
importance of the oversight arrangements which are in place
and which are there to ensure compliance with, inter alia,
the
Agencies
internal
policies/procedures.
In
Liberty/Privacy the Tribunal highlighted the importance of
both the ISC and the Commissioner in this regard [see §§9192 and 121 of [Liberty/Privacy No 1]. The Commissioner
in particular with his “fully implemented powers of