Article 8 of the ECHR) and the equivalent provisions of EU law.189 That is
because in law, there is an interference not only when material is read, analysed
and shared with other authorities,190 but also when it is collected, stored and
filtered, even without human intervention.191
4.23.
It is, furthermore, the state which in law bears the burden of establishing that any
such interference is in accordance with the law, necessary in pursuit of a
legitimate aim and proportionate.192
4.24.
In approaching my task, I have proceeded on the basis of these principles. In
particular:
(a) I have not assumed that the powers under review have utility, even when
expert security-cleared bodies have previously opined that this is the case.
(b) On the contrary, I have required the Government (including, in particular, the
SIAs) to make good from first principles their claims of utility. In lawyers’
language, I have put them to strict proof of what they assert.
Sources of evidence: case studies
4.25.
In the Operational Case, the Government sought to make the argument for the
utility of the powers under review by reference in particular to 19 anonymised
(and in some cases, hypothetical) case studies:
(a) three relating to bulk interception (in the fields of counter-terrorism, child
sexual exploitation, cyber-defence);
(b) three relating to bulk equipment interference (counter-terrorism, biological
weapons proliferation, cyber-defence);
(c) six relating to bulk acquisition (preventing bombings in London and
elsewhere in the UK, preventing a kidnap, catching and prosecuting
terrorists, thwarting mass casualty attacks against aviation); and
189
190
191
192
Article 8 of the ECHR prohibits interference with public authorities with the exercise of the right
to respect for private and family life, home and correspondence, save on the conditions set out
in Article 8(2): see AQOT 5.16-5.24. See also Articles 7 and 8 of the Charter of Fundamental
Rights of the EU. For the central importance of privacy, see AQOT chapter 2.
Weber and Saravia v Germany (Application no. 54930/00, judgment of 26 June 2006), para 79.
The UK Supreme Court has described it as clear that “the state’s systematic collection and
storage in retrievable form even of public information about an individual is an interference with
private life”: Catt v Association of Chief Police Officers of England Wales and Northern Ireland
and others [2015] UKSC 9, per Lord Sumption at para 6.
This is the “triple test” identified in the 2015 ISC Report, paras 23-27. As I noted in AQOT 5.18,
the legal boundary between necessity and proportionality is not as clear as that summary
suggests: see further 9.3 below.
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