MR JUSTICE BURTON
Approved Judgment
Caroline Lucas MP & Ors v Security Service & Ors
way of absolute protection. It would need to be clear whether it was to be
communications with constituents (or whistle blowers), or all communications
by parliamentarians (or other elected representatives ?) which was to be given
absolute or other protection.
iii)
There must obviously be set against such considerations the powerful views of
Sir Swinton Thomas cited in paragraph 9 above, and of Lord King as
expressed in paragraph 8 above, as to the undesirability and inappropriateness
of any such protection over and above that given by the system generally.
30.
The next question to be considered is what the nature of such protection is to be –
whether absolute, as with LPP – and how and at what stage it is to be enforced. As
against Mr Bowers’ taking on the chin the practical consequences of a substantial
emasculation of the s.8(4) process, the only suggested way, which we have discussed
in paragraph 16 above, was the automatic deletion suggestion at the grant application
stage, which is not even required in respect of potential LPP communications, and
would be impossible to operate in any event.
31.
Hence the real question is as to whether there is any analogy to be drawn from any
ECHR authority, such as to cause this Tribunal to conclude that anything superadded
over the provisions of the Code or the Draft Code is required. The only analogy relied
upon by Mr Jaffey is that relating to the obtaining of journalistic sources: and that of
course would only be relevant to a targeted application. Mr Jaffey submits that the
imposition of a system of judicial pre-authorisation of the grant of any application
which might lead to the interception of parliamentarians’ communications can and
should be derived by analogy from the decisions on journalistic sources. As to this:
32.
i)
It appears to us that comparison between a need for judicial pre-authorisation
in respect of an application for journalists’ sources (not in respect of any
interception of journalistic communications), which is a very specific and
sensitive area, does not found an argument for its application in relation to
interception of any communications by a parliamentarian – it is, as was put in
the course of argument, a ‘massive jump’.
ii)
Even as to applications for journalistic sources the law is not yet settled. This
Tribunal referred in paragraph 150 of Liberty/Privacy to the words of Laws
LJ in Miranda v the Secretary of State for the Home Department [2014] 1
WLR 3140. We do not consider that either Sanoma Uitgevers v The
Netherlands [2011] EMLR 4 or Telegraaf Media Nederland Landelijke
Media B.V. v The Netherlands [2012] 34 BHRC 192 requires the
interposition of judicial pre-authorisation before the grant of such authorisation
or approval.
iii)
Even if judicial pre-authorisation were established to be required in respect of
an application for journalistic sources, this Tribunal has previously expressed
the view in Liberty/Privacy (at paragraph 116(vi)) that extension of such a
system any further in the area of national security or interception by the
Agencies is not justified or required.
We are persuaded by Mr Eadie’s principal proposition that the interception regime,
which has been approved by the ECtHR in Kennedy and the Tribunal in