38.
The Claimant’s first response to this can be summarised by Mr de la Mare’s
statement that national security should not be seen as a ‘magic lamp’. The
way he put it in argument was that once you choose to have an exception,
which is used to derogate from or qualify the rights and obligations in Article
5 of EPD, that must conform with the minimum standards supplied by EU
law. Effectively this was a statement that national security does not constitute
an ouster of jurisdiction, or a framework outside the Treaty, but a derogation
(contrary to the Statement in paragraph 36(ii) above, and the Respondents’
submissions in paragraph 32 above).
39.
He submits that the words in Article 4 TEU, that the Union must respect
essential State functions including safeguarding national security, and in
particular that national security remains the ‘sole responsibility’ of each
Member State, must be read so as to mean that sole responsibility should be
read as sole administrative or executive responsibility. Thus he submits that
the kinds of activities which are outside the scope of the Treaty or a Directive
by virtue of Article 4 are decisions as to the resources of GCHQ or its staffing,
or the location of its headquarters, or, he suggested, activities such as the
running by the Ministry of Defence of its own telecommunications network,
being outside the ambit of the Directive, or the allocation internally between
its agencies of the responsibility for counter-terrorism. This does not seem to
us to be very persuasive. The suggested watering down of sole responsibility
does not ring true against the principle of conferral set out in Article 5, and the
suggested activities said to remain within the sole responsibility appear to be
trifling.
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