3.
The accuracy of the Applicants’ descriptions of the Government’s
bulk interception programmes
48.
The Government claims that “[t]he intelligence gathering activities and
capacities of the UK, and the nature of the interception programmes in the
UK and US, have been widely mischaracterised as a result of the Snowden
allegations” (Observations, §1.1). The Applicants note, however, that the
Government has not denied that the Snowden documents are authentic.
The Applicants address the accuracy of their descriptions of the US
surveillance programmes in the Factual Appendix, and show that the US
Government has expressly and publicly avowed a range of programmes
revealed by the Snowden documents (see Factual Appendix paras 10-19).
49.
The Government maintains that it is constrained by its own policy of
neither confirm nor deny (“NCND”) in relation to the work of the UK
Intelligence Services. The Applicants note, however, that this constraint is
self-imposed. The US government has disclosed the existence of
surveillance programmes, including PRISM and Upstream. The UK
Government, too, has – from time to time – elected to provide details of
surveillance programmes to non-governmental bodies, such as the Royal
United Services Institute (“RUSI”), where such disclosures have suited its
purposes.23
50.
Moreover, the English courts have declined to treat NCND as a
paramount concern that overrides all other considerations. In Mohamed
Ahmed Mohamed and CF v Secretary of State for the Home Department
[2014] EWCA Civ 559 Maurice Kay LJ stated:
Lurking just below the surface of a case such as this is the
governmental policy of "neither confirm nor deny" (NCND), to which
reference is made. I do not doubt that there are circumstances in
Royal United Services Institute (“RUSI”), A Democratic Licence to Operate: Report of the
Independent
Surveillance
Review
(13
July
2015),
available
at
https://rusi.org/publication/whitehall-reports/democratic-licence-operate-report-independentsurveillance-review ( “RUSI Report”). Reply Annex No. 19.
23
25