5.
The BPD Position is as follows. The issue to which reference is to be made to
the Grand Chamber relating to BCD concerns data in respect of which a
commercial operator, engaged in an activity within the scope of EU law is
compelled, by a direction enforceable by law, to provide to the SIAs data
obtained in the course of ordinary business purposes in pursuing that business.
This does not apply to BPD. The Respondents have confirmed that the SIAs
do not use compulsory powers by reference to s.94 or any other similar power
(e.g. the Airports Act 1986, the Transport Act 2000, the Civil Aviation Act
1982 or the Postal Services Act 2000) to obtain BPDs. With the exception of
one historic occasion when BPD was obtained under s.94, which has been the
subject of evidence, and which under the Handling Arrangements now in force
cannot recur (and if such policy were to change it would be publicly avowed
and new Arrangements would be published), this confirmation by the
Respondents applies not only to the present but also to the period since 2010.
The Respondents have further confirmed that the SIAs have not threatened the
use of such compulsory powers in obtaining the BPDs that they hold and/or
have held in such period. Hence there is no issue to be referred in respect of
BPD.
6.
The context of the issues before us has been as to the balance between the
steps taken by the State, through the SIAs, to protect its population against
terror and threat to life against the protection of privacy of the individual.
Subject to the reservation of the issues referred to in paragraph 1 above, we
were and are satisfied that the BCD and BPD regimes complied with the
ECHR. We now need to consider whether EU law, particularly by reference
to the Charter of Fundamental Rights of the European Union (2000/C364/01)
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