71.
The Claimant did submit that the Respondents were not in a position to
dispute that at least the question of scope was éclairé by virtue (inter alia) of
the following propositions:
a. that the UK Parliament had legislated on the basis of there being an
obligation on the Member State under Article 15 of the EPD
(particularly in relation to the Communications Act 2003 and the
Privacy & Electronic Communications (EC Directive) Regulations
2003). This was vigorously debated before us by an exchange of
written submissions, in which it seemed to us the Respondents had the
better of the argument. But it does not matter, as it is not alleged that
there is any kind of estoppel, and there is plainly now a dispute
requiring resolution.
b. that Gallagher, Shingara and Radiom and ZZ were cases in which
either the national security point was not taken or, in the case of ZZ,
was taken in the context of the requirement for a gist, and resolved,
and this Tribunal is said to be bound by the views of Richards LJ
referred to in paragraph 39 above. But again it is not suggested that
there is an estoppel, and even if the Tribunal is bound, that does not
prevent
a
reference:
see
Elchinov
v
Natsionalna
Zdravnoosiguritelna Kasa [2011] 1 CMLR 29 at paragraph 27.
c. that although Article 4 TEU was not referred to in the Watson
judgment, the Respondents did rely on it in one of its two sets of
written submissions. As issue estoppel does not arise, this did not
seem to us to be of any substance.
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