26
LIBERTY AND OTHERS v. THE UNITED KINGDOM JUDGMENT
certificates were formulated in general terms and related only to intelligence
tasks and priorities, such as, for example, “national security”, “preventing or
detecting serious crime” or “safeguarding the economic well-being of the
United Kingdom” (see paragraph 43 above). On the face of the 1985 Act,
only external communications emanating from a particular address in the
United Kingdom could not be included in a certificate for examination
unless the Secretary of State considered it necessary for the prevention or
detection of acts of terrorism (see paragraphs 23-24 above). Otherwise, the
legislation provided that material could be contained in a certificate, and
thus listened to or read, if the Secretary of State considered this was
required in the interests of national security, the prevention of serious crime
or the protection of the United Kingdom’s economy.
66. Under section 6 of the 1985 Act, the Secretary of State, when issuing
a warrant for the interception of external communications, was called upon
to “make such arrangements as he consider[ed] necessary” to ensure that
material not covered by the certificate was not examined and that material
that was certified as requiring examination was disclosed and reproduced
only to the extent necessary. The applicants contend that material was
selected for examination by an electronic search engine, and that search
terms, falling within the broad categories covered by the certificates, were
selected and operated by officials (see paragraph 43 above). According to
the Government (see paragraphs 48-51 above), there were at the relevant
time internal regulations, manuals and instructions applying to the processes
of selection for examination, dissemination and storage of intercepted
material, which provided a safeguard against abuse of power. The Court
observes, however, that details of these “arrangements” made under
section 6 were not contained in legislation or otherwise made available to
the public.
67. The fact that the Commissioner in his annual reports concluded that
the Secretary of State’s “arrangements” had been complied with (see
paragraphs 32-33 above), while an important safeguard against abuse of
power, did not contribute towards the accessibility and clarity of the
scheme, since he was not able to reveal what the “arrangements” were. In
this connection the Court recalls its above case-law to the effect that the
procedures to be followed for examining, using and storing intercepted
material, inter alia, should be set out in a form which is open to public
scrutiny and knowledge.
68. The Court notes the Government’s concern that the publication of
information regarding the arrangements made by the Secretary of State for
the examination, use, storage, communication and destruction of intercepted
material during the period in question might have damaged the efficacy of
the intelligence-gathering system or given rise to a security risk. However, it
observes that the German authorities considered it safe to include in the G10
Act, as examined in Weber and Saravia (cited above), express provisions