MR JUSTICE BURTON
Approved Judgment
(7) Appropriate technical and organisational measures shall
be taken against unauthorised or unlawful processing of
personal data and against accidental loss or destruction of,
or damage to, personal data.”
ii)
A member of the Intelligence Services commits an offence under s.1(1) of the
Official Secrets Act 1989 (“OSA”) if “without lawful authority he discloses
any information, document or other article relating to security or intelligence
which is, or has been, in his possession by virtue of his position as a member
of any of those services”. This disclosure can only be made with lawful
authority if it is made in accordance with his official duty by virtue of s.7(1) of
the OSA. Thus, Mr Eadie points out that disclosure of information by a
member of the Intelligence Services in material breach of the relevant
“arrangements” made under s.2(2)(a) of SSA or ISA or s.4(2)(a) of ISA
would be a criminal offence, and there are other criminal obligations in
relation to disclosure under the OSA.
iii)
The Respondents are also bound by their obligations under s.6(1) of the
Human Rights Act 1998, which, in relation to breach of Articles 8 and 10 of
the Convention, is another positive obligation which can be enforced in a
court, or in this case, in this Tribunal.
20.
Thus the Intelligence Services can obtain information (including communications
and communications data) from a foreign intelligence agency falling within their
relevant remit, but by reference to arrangements for securing that the information is
only obtained so far as necessary for one of the specified purposes (as set out in
paragraph 18(ii), (v) and (vii) above), which purposes are identical to those
specified for the obtaining of a warrant under s.8 of RIPA, and insofar as
proportionate for that purpose pursuant to s.6(1) of the HRA.
21.
The Claimants’ response is their complaint that there is on the face of those statutes
(except the DPA) no or no sufficient regulation as to the
receipt/handling/retention/destruction of the information so supplied, such as there
would be in respect of intercepted information obtained pursuant to a warrant under
s.8 of RIPA (whether issued under s.8(1) or s.8(4)), with which we deal below, and
that there is thus interference with the privacy of the correspondents whose
communications are so accessed, without adequate protection under Article 8(2)
(“in accordance with the law”).
22.
The Respondents rely upon significant oversight of the Intelligence Services as
protection against arbitrary interference or unlawful use of powers by them. First
there is oversight by the ISC, now regulated under the Justice and Security Act 2013
(“the JSA”). This is a Committee of Members of Parliament, from both Houses and
cross-party, whose Chairman is Sir Malcolm Rifkind QC, a former Foreign
Secretary. The ISC has, and exercises, wide powers, and the Government (including
each of the Intelligence Services) must make available to the ISC information that it
requests in the exercise of its functions, subject to a power of veto under certificate
of the Secretary of State. It has a support staff with the highest level of security
clearance, and must make an annual report to Parliament, and such other reports to
Parliament as it considers appropriate.