MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
oversight and supervision” (§92) has demonstrated the
“scope and depth of his oversight duties and activities”
(§92) and is there to keep under review the compliance by
the Agencies with the legal framework, including their
internal policies and procedures. The Commissioner will of
course be aware of the judgments in Liberty/Privacy and can
therefore be expected to focus on making sure that the
technical breaches which occurred in individual instances in
that case are not repeated.
21. Consequently there has already been detailed scrutiny of
the relevant regimes by this Tribunal and compliance with the
adequate internal arrangements is a matter which the
Commissioner is well placed to scrutinise and oversee. There
would be no material remedial deficit were the Tribunal in the
copycat cases simply to rely upon its earlier judgments rather
than requiring individual case examination by the Agencies.
The Tribunal can properly conclude that such a course of
action is disproportionate and unnecessary given the extent of
work which would be required to conduct such an
examination.”
29.
In paragraph 5 of their Skeleton the Respondents assert that “there is no justification
for going further than [the declarations made in Liberty/Privacy] in other individual
cases.
The composition of organisations considered in the Liberty/Privacy
proceedings provided a demonstratively appropriate sample of cases against which to
test the lawfulness of the operation of the intelligence sharing regime.”
30.
The Claimants emphasise that in the Liberty/Privacy proceedings the Tribunal went
on to investigate the individual complaints by those claimants, in the light of the
findings that intelligence sharing pursuant to Prism/Upstream had been unlawful prior
to 14 December 2015 and that the s.8(4) RIPA regime had been lawful at all times,
and made the findings recorded in paragraphs 5 and 6 above in relation to two of the
claimants. Mr Jaffey in his Submissions on behalf of the Six (“the Claimant’s
Reply”) stated:“10. The purpose of the claims made as part of the Privacy
International Campaign is to enable individuals to ensure that
bulk surveillance (whether through intercept or receipt from a
foreign agency) carried out against them is carried out
lawfully, and discover if their private and personal information
has been unlawfully obtained.
The claimants have no
entitlement to know about lawful surveillance. But an essential
feature of any democratic society is that covert breaches of the
law by the State are disclosed to the victim.”
31.
He characterised the Respondents’ position in argument as being “True it is that some
of the claimants in Liberty/Privacy were successful and there were violations found in
those cases, but we have decided in your cases, [that] we are not even going to look.”