brought to the Court’s attention in the context of the present
proceedings.”
57.
Our finding set out at paragraph 17 above must be taken into account.
58.
The Grand Chamber will need to clarify the meaning and impact of paragraph
119 of its Judgment, and to consider whether the regime of bulk acquisition of
BCD in the field of national security is unlawful, if it complies with the
ECHR.
(2)
59.
Prior authorisation
At present the s.94 Directions are made by the Secretary of State, and there is
no other prior authorisation. We have considered that the system complies
with the ECHR for the detailed reasons set out in the October Judgment (and
see in particular paragraph 86).
The new Investigatory Powers Act will
introduce a system of judicial and other prior authorisations, but, as we have
previously concluded, improvement or change in a system does not mean that
before such change the system was unlawful (paragraphs 62 and 86 of our
October Judgment).
60.
The meaning and impact of this Watson Requirement in the different
circumstances of BCD is in any event unclear. There are different moments to
which this Requirement of prior authorisation might be said to apply:
a. Prior to the making of a s.94 Direction to supply the data – in lieu of or
as well as the Secretary of State;
b. Prior to obtaining the data electronically by way of an electronic trawl
or search – on each occasion? The protection of national security is
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