Judgment Approved by the court for handing down.
Privacy International v Investigatory Powers Tribunal
regard the Claimant’s evidence, which criticises the use of CNE on privacy grounds, as
relevant to our task.
34.
Ascertaining the statutory context will instead involve the court in a legal determination
of the purpose of the Act. It is the court’s duty “to favour an interpretation of legislation
which gives effect to its purpose rather than defeating it” (Test Claimants in the Franked
Investment Income Group Litigation v Commissioners for Her Majesty’s Revenue and
Customs [2020] UKSC 47, para 155, per Lord Reed and Lord Hodge). If the enactment
is ambiguous, the meaning which relates the scope of the Act to the mischief it is
intended to cure should be adopted rather than a different or wider meaning which the
situation before Parliament did not call for (Black-Clawson International Ltd v
Papierwerke Waldhof Aschaffenburg AG [1975] AC 571 at 614C-D). In the present
case, the Tribunal held that the words of section 5(2) should “be given their natural
meaning in the context in which they are set.” To the extent that the Tribunal meant
that it was legitimate to consider the statutory purpose, we agree.
35.
The purpose of the 1994 Act was (among other things) to place the existence and
functions of GCHQ on a statutory footing. In doing so, Parliament intended that GCHQ
(together with the other Agencies) should continue to protect the United Kingdom’s
national security and economic well-being, and play its part in the prevention of serious
crime. We accept that those vital interests form the context of the statute as a whole.
36.
Nevertheless, there is a distinction between (on the one hand) ascertaining the purpose
of an enactment and (on the other hand) deploying the statutory context to bestow on
the Agencies the widest possible powers that the language may sustain. The Interested
Parties respectively have constitutional responsibility for and expertise in operational
matters relating to national security. However, the construction of the provisions of an
Act is for the court and for no one else (Black-Clawson at 614F per Lord Reid). If the
court were to be moved by the view of the Interested Parties on the extent of the powers
which they regard as necessary, it would risk departing from what Parliament has said.
Far from acting under the banner of loyalty to Parliament, the court would risk
frustrating Parliament’s intention. Even in the critically important sphere of national
security, the court would overstep its function.
37.
Nor do we regard the national security context as implying that Parliament was not
concerned with the fundamental rights of those whose property may be the subject of
CNE. Parliamentary sovereignty means that Parliament may legislate to override
fundamental rights. However, Parliament is and must be subject to political constraints:
if Parliament decides to enact legislation that is contrary to fundamental rights, it must
squarely confront what it is doing and accept the political cost. That Parliament has
confronted a breach of rights may be demonstrated not only in the express language of
a statute but also by necessary implication. In the absence of either of those
mechanisms, the courts will presume that fundamental rights are untouched. This is the
well-established principle of legality (R v Secretary of State for the Home Department,
ex parte Simms [2000] 2 A.C. 115, 130D-F and 131D-G).
38.
The next question is whether section 5(2) of the 1994 Act engages fundamental rights.
In our view it plainly does, because of the longstanding aversion of the common law to
general search warrants.