(4)
In the present case, there is no proper evidential basis for the
practical problems claimed by the Government. No relevant open
evidence was presented to the IPT. Furthermore, it is plain from the
First Judgment that no evidence was advanced in closed: rather the
IPT simply accepted a submission that it was “obvious” that it
would be difficult “if not impossible” to provide a case for a
certificate under section 16(3) in every case.137
(5)
But it is submitted it is far from obvious. First, if no good
justification could be put forward, it is difficult to see why there is a
sound case for interception of such individuals.
(6)
Secondly, it is impossible to reconcile the Government’s claimed
difficulties with its own case about how the s.8(4) regime works at
the selection for examination stage. Paragraph 1.26(1) of the
Government’s Observations claims that the Government uses
“specific selectors, that is, specific identifiers relating to an
individual target such as (for example) an e-mail address.” This
directly contradicts the claim made here that it cannot issue a
s16(3) certificate because it “may not know who the individual is”.
But if the target is known, there is no good reason not to afford the
same level of safeguards. If GCHQ wish to target an NGO’s London
office they would need a warrant or 16(3) certificate. But if they
wish to target the same NGO’s German office, they would not need
to do so. That distinction has no rational basis.
(7)
Thirdly, the position is irrational. Section 16(3) is concerned with
someone “who is known to be for the time being in the British
Islands”. That is concerned with present location (not, it may be
noted, long term residence), and present location changes. It follows
137
IPT First Judgment, §147(ii).
105