A.
Relevant difference in treatment
264.
The Court’s case-law has established that “discrimination means treating
differently, without an objective and reasonable justification, persons in
relevantly similar situations.” (D.H. and Others v Czech Republic, §175).
The Court has further “accepted that a general policy or measure that has
disproportionately prejudicial effects on a particular group may be
considered discriminatory notwithstanding that it is not specifically aimed
at that group.” (§175)
265.
The Government accepts that, under the s8(4) Regime, “at the selection
stage, limitations are imposed on the extent to which intercepted material
can be selected to be read, looked at or listened to according to a factor
which is referable to an individual who is known to be for the time being in
the British Islands.” (Observations, §8.4). Specifically, “[b]efore such a
course may be taken, the Secretary of State must certify that it is necessary
under s.16 RIPA”. (§8.4). Thus, the Government admits that persons
resident outside the British Islands have less protection against the
analysis of their communications than persons known to be present on
those islands.
266.
It is clear that persons in the British Islands are more likely to be of
British nationality than those outside. Accordingly, the s16 safeguards
have “disproportionately prejudicial effects” on non-British nationals and,
as a result, there is indirect discrimination on the grounds of national
origin. The IPT came to this conclusion in its First Judgment.136
267.
The Government has advanced no legitimate basis for challenging this
finding of the IPT. It relies solely on Magee v United Kingdom, a case
where the applicant challenged “a difference in treatment of detained
136
First Judgment, §144.
102