telecommunications providers ("PECNs") to supply communications data (but
not content) to MI5 and to GCHQ. S. 94 reads, in relevant part, as follows:
“(1) The Secretary of State may, after consultation with a person to whom
this section applies, give that person such directions of a general
character as appear to the Secretary of State to be necessary in the
interests of national security or relations with the government of a country
or territory outside the United Kingdom.
(2) If it appears to the Secretary of State to be necessary to do so in the
interests of national security or relations with the government of a country
or territory outside the United Kingdom, he may, after consultation with a
person to whom the section applies, give to that person a direction
requiring him (according to the circumstances of the case) to do or not to
do , a particular thing specified in the direction.
(2A) The Secretary of State shall not give a direction under subsection (1)
or (2) unless he believes that the conduct required by the direction is
proportionate to what is sought to be achieved by that conduct.”
9.
The Respondents put forward in the course of the hearing before us what Mr
Eadie QC called four key factual propositions. As to the first two, Mr de la
Mare QC for the Claimant did not, subject to questions of proportionality, take
issue at the hearing or regard them as “especially controversial”. They were:
i)
The use of Bulk Data capabilities is critical to the ability of the SIAs to secure
national security;
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