MR JUSTICE BURTON
Approved Judgment
Human Rights Watch & Ors v SoS for the Foreign &
Commonwealth Office & Ors
finding, however technical, in a complainant’s
favour”.
b. The alleged breaches in the present dispute may in fact be
substantial, and not ‘technical’ as the Respondents submit,
which would only strengthen the justification for
consideration of the individual circumstances of each case.”
35.
The Respondents further submit that this is effectively a ‘fishing expedition’, and that
the appropriate response is simply to determine the current complaints by express
reference back to the determinations made in the Liberty/Privacy proceedings, or by
way of a fresh declaration in similar terms in favour of each claimant. The
Respondents submit that, unlike in Belhadj, where there was a concession that the
substance of their policies/procedures for protecting legal and professional privilege
material was in breach of Article 8, in Liberty/Privacy the only failure, and then only
in respect of Prism/Upstream, related to the lack of foreseeability/accessibility arising
out of the fact that disclosures about the procedures were not made until the onset of
the Liberty/Privacy proceedings. In this case the Respondents submit (paragraph 41
of their Submissions) that, unlike in Belhadj, “there is no good reason why the
Claimants should not receive the same foreseeability declaration given to all
claimants in Liberty/Privacy, given that there was no lack of substantive safeguards
in the regime and the breach effects the public at large and is not dependent on what
may or may not have occurred on the facts of individual cases.”
36.
The Claimants respond that the Respondents ignore the Tribunal’s findings of
breaches in relation to the handling of information in Liberty/Privacy No 3, as set
out in paragraphs 5 and 6 above, but in any event they rely (in paragraph 29 of the
Claimants’ Reply) upon their assertion of an entitlement pursuant to Article 6 of the
ECHR to have their civil rights determined, relying inter alia upon a decision by this
Tribunal IPT 01/62 (at paragraph 85-108) as to the applicability of Article 6.
37.
The Respondents vigorously put in issue the applicability of Article 6, in paragraphs
22-27 of their Skeleton, pointing out further in oral argument that the cases upon
which the Claimants primarily rely, being Klass v Germany (Report of the
Commission) 9 March 1977 and AEIHR & Ekimdzhiev v Bulgaria (Application
62540/00 28 June 2007), were addressed in Kennedy v UK at 177 to 179, and the
issue of the applicability of Article 6 was expressly left open by the ECtHR. We are
not in the event invited to resolve this knotty question, but on any basis, quite apart
from Article 6, the Claimants rely upon our obligation to consider the cases pursuant
to s.67 of RIPA as set out in paragraph 21 above.
38.
Finally the Respondents submit that we can consider and determine the cases without
investigation pursuant to our power under Rule 9 of the Investigatory Powers Tribunal
2000 and s.68(1) of RIPA to determine our own procedure. Mr Jaffey submits that
we have no power to take that course, but only if pursuant to s.67(4) we conclude that
a claim is frivolous and/or vexatious; though he concedes that we could follow the
latter course if we did conclude that the 663 claims or any of them are unsustainable,
and therefore frivolous. However, seemingly recognising the burden upon the
Tribunal, and even more so upon the Agencies, if investigation of them be directed,
Mr Jaffey in his Reply suggested in paragraph 7 what he called a solution, namely to
adopt a “streamlined approach”, which he there described, of identifying issues and