Judgment Approved by the court for handing down.
Privacy International v Investigatory Powers Tribunal
Issue 8: The s.5 regime since February 2015 is compliant with
Articles 8/10.
Issue 9: The s.5 regime prior to February 2015 was compliant
with Articles 8/10.
Issue 10: So far as concerns the adequacy of dealing with LPP,
the CNE regime has been compliant with the Convention since
February 2015.”
10.
The Claimant applied for judicial review of the Tribunal’s conclusions on Issue 4. The
Interested Parties raised the question of whether section 67(8) of the Regulation of
Investigatory Powers Act 2000 (“RIPA”), the statute which created the Tribunal, ousted
the supervisory jurisdiction of the High Court to quash a judgment of the Tribunal for
error of law. On 17 June 2016 Lang J granted permission for judicial review but directed
that jurisdiction should be tried as a preliminary issue. The Divisional Court and Court
of Appeal held that there was no jurisdiction but on 15 May 2019 the Supreme Court,
by a majority of 4-3, allowed the Claimant’s appeal and held that this court does indeed
have jurisdiction ([2020] AC 491; [2019] UKSC 22).
11.
In October 2019 an application was made to amend the claim to seek judicial review of
the Tribunal’s conclusion on Issue 9, namely whether the use of CNE by GCHQ prior
to publication of the draft Equipment Interference Code in February 2015 had been in
contravention of Article 8 and/or Article 10 of the European Convention on Human
Rights (“the Convention”). On 8 January 2020 Steyn J approved a consent order under
which the question of whether leave to amend should be granted would be dealt with
on a rolled-up basis together with the existing judicial review claim for which
permission had been given in 2016.
The relevant statutes
12.
Section 5(2) of the 1994 Act is the crucial provision in this case. As originally enacted
in 1994, it provided that the Secretary of State could issue a warrant:"authorising the taking ... of such action as is specified in the
warrant in respect of any property so specified or in respect of
wireless telegraphy so specified if the Secretary of State:
(a) thinks it necessary for the action to be taken on the ground
that it is likely to be of substantial value in assisting ...
(iii) GCHQ……
in carrying out any function which falls within Section 3(l)(a)
and
(b) is satisfied that what the action seeks to achieve cannot
reasonably be achieved by other means and
(c) is satisfied that satisfactory arrangements are in force under .
. . section 4(2)(a) above with respect to the disclosure of