Respondents, the Foreign Secretary and the Home Secretary and the three
SIAs (colloquially MI5, MI6 and GCHQ), as also there described and
represented. We shall use the same abbreviations as were adopted in the
October Judgment.
4.
Apart from the two reserved issues as to the ECHR, the other issue, which was
also then adjourned, has been addressed in detail at this hearing over the entire
four days available for it, with the effect that the two ECHR issues have been
further adjourned. It relates to whether the BCD and BPD regimes are within
the scope of European Union Law (“EU Law”), and, if so, whether they
comply with such law. At the time of the first hearing in July which led to the
October Judgment, the decision of the Grand Chamber of the Court of Justice
of the European Union (the “Grand Chamber”) had not yet been given, but
was subsequently given on 21 December 2016, in the case of Watson (joined
cases C-203/15 and C-698/15 Tele2 Sverige AB v Post-och telestyrelsen and
Secretary of State for the Home Department v Watson and Others). As
will be seen, we have concluded, for the reasons we give later in this
judgment, that we should refer questions to the Grand Chamber pursuant to
Article 267 of the Treaty on the Functioning of the European Union
(“TFEU”). However, in the light of the submissions by the parties during the
hearing, and the confirmation of the Respondents, it has not been necessary to
refer any questions to the Grand Chamber in respect of BPD (“the BPD
Position”), and the relevant considerations and conclusions which we set out
below are concentrated upon BCD.
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