which the courts should respect it. However, it is not a legal
principle. Indeed, it is a departure from procedural norms relating
to pleading and disclosure. It requires justification similar to the
position in relation to public interest immunity (of which it is a form
of subset). It is not simply a matter of a governmental party to
litigation hoisting the NCND flag and the court automatically
saluting it. (para 20).
51.
The
Government’s
claim
that
it
is
“only
possible
to
address
mischaracterisations in open to a limited extent” is therefore a matter of
choice rather than legal constraint (Observations, §1.2). Indeed, the ISC
Report noted that while the Government had placed “long-standing”
reliance on the NCND policy “in relation to any allegations about the
Agencies’ capabilities and operations”, it concluded that, “greater openness
regarding
the
Agencies’
activities
is
essential”.24
Accordingly,
it
recommended that “the Government will need to adopt a more open
approach to the Agencies’ activities in order to improve understanding and
public trust”.25 In particular, the ISC called on the Government “to avow
all of the Agencies’ intrusive capabilities”.26
52.
The Council of Europe Commissioner for Human Rights (the “CoE HR
Commissioner”) likewise recently stated that, “NCND shields surveillance
decisions from effective scrutiny” and is “problematic” because “it prevents
a person from ever knowing if he/she has been the target of surveillance”.27
Extensive reliance on the NCND principle is unjustified in circumstances
where the UK Intelligence Services have used wide interpretations of
general powers to justify the operation of sweeping interception
programmes whose existence has until recently been concealed from
citizens and Parliament.
ISC Report, paras 281, 284.
ISC Report, para 285.
26 ISC Report, p 109, para BBB.
27 Council of Europe Commissioner for Human Rights, Memorandum on Surveillance and
Oversight Mechanisms in the United Kingdom (May 2016), para 15, Comm DH(2016)20
(“Memorandum on Surveillance”). Reply Annex 28.
24
25
26