Judgment Approved by the court for handing down.
Privacy International v Investigatory Powers Tribunal
46. The amendment of s.7 in 2001 to add GCHQ cannot alter the
meaning of s.5, which has, in all respects relevant to this Issue,
remained unchanged.
47. In our judgment what is required is for the warrant to be as
specific as possible in relation to the property to be covered by
the warrant, both to enable the Secretary of State to be satisfied
as to legality, necessity and proportionality and to assist those
executing the warrant, so that the property to be covered is
objectively ascertainable.”
The Claimants’ submissions
19.
Mr Jaffey submitted that the Tribunal had misdirected itself in concluding that a section
5 warrant would be lawful provided that it “adequately described” property which was
the target of the warrant. In contradistinction to section 7 of the 1994 Act, section 5(2)
requires the property to be “specified”, not “described.” The natural meaning of
“specified” connotes the identification of particular, ascertained things rather than a
general or collective description of a class of things.
20.
Mr Jaffey relied on the principle of legality as elucidated in cases such as R v Secretary
of State for the Home Department, ex parte Simms [2000] 2 A.C. 115. That principle
means that the courts will, when interpreting the provisions of a statute, presume that
Parliament did not intend to legislate in a manner which overrides fundamental
common law rights. The common law has an aversion to general warrants that leave
significant matters of judgment and discretion to the person executing the warrant rather
than to the person legally or constitutionally responsible for issuing it. In order to
prevent the unlawful delegation of discretion from the Secretary of State (who issues
warrants) to officials in GCHQ (who execute them), the word “specify” imposes a
requirement to be specific about the person or property that will be subject to
interference. The principle of legality would otherwise be breached.
21.
In view of the importance of the constitutional principle that there can be no interference
with property without clear and specific legal authorisation, the words of an enactment
must be unambiguous before the court may interpret Parliament as intending to override
rights. There are no such unambiguous words in section 5. The national security context
makes no difference as otherwise the courts would sanction wide powers to override
fundamental rights.
22.
Turning to the proposed new ground, Mr Jaffey submitted that the Tribunal had further
erred in concluding that the use of the section 5 power to engage in CNE was lawful
before the publication of the draft Equipment Interference Code in February 2016. Prior
to the Code’s publication, almost nothing about the arrangements governing CNE was
publicly acknowledged. The Property Code existed but there was nothing to suggest
that it was being treated by the Agencies as applicable to CNE. In the absence of
published arrangements for the exercise of the section 5 discretion, domestic law was
insufficiently clear and precise to bestow the necessary qualities of legality and
foreseeability required by Article 8(2) of the Convention (Association for European
Integration and Human Rights v Bulgaria (6250/00, 28 June 2007, para 75; Weber &
Saravia v Germany (2008) 46 EHRR SE5, paras 93-95).