MR JUSTICE BURTON
Approved Judgment
The Claimants are not addressing any information which does not ‘identify itself as
the product of an interception’, and he refers to this subsection as indicating that
this is a feasible differentiation, recognised as such (for other purposes) in RIPA.
30.
As for the second category, there was some discussion of the Padfield principle
(Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997), namely
that a public body is required to exercise its discretionary powers to promote (and
not to circumvent) the policy and objects of the legislation which created those
powers. There was also discussion, emanating from a question from the Tribunal,
of whether there was a role for a concept of ‘agency’. The Respondents plead in
paragraph 58 of their Response as follows:
“In particular, not least given the safeguards and oversight
mechanisms that Parliament saw fit to impose in the case of
interception pursuant to a RIPA interception warrant . . . and
in the light of the well established Padfield principle, it is
accepted that it would as a matter of domestic public law be
unlawful for any of the Intelligence Services to deliberately
circumvent those safeguards and mechanisms (and attempt to
avoid the need to apply for an interception warrant under
RIPA) by asking a foreign intelligence agency to intercept
certain specified communications and disclose them. That is
not to say that there will not be circumstances where there are
legitimate reasons to ask a foreign intelligence agency to
intercept particular communications, for example, where it is
not technically feasible for the Intelligence Services themselves
to undertake the interception in question.”
The Claimants do not suggest that such a request to the NSA for solicited intercept
would fall foul of the Padfield principle, or (in answer to the point raised by the
Tribunal) would render the NSA an agent for the Respondents. However they
submit that, if that occurs, then the Respondents will know that what is subsequently
produced is the product of intercept.
31.
As to these two categories, we summarised Mr Squires’ submissions in the course
of argument as follows (Transcript 3/148):
“Whether it is solicited, or whether it is not solicited, dealing
with the product of intercept is, at some level or other, an
interference with Article 8 which needs some legal backing,
and there ought to be, at however high a level, a published
procedure in relation to it.”
32.
As to the third category, the Claimants make no submissions, but suggest that the
exercise of differentiating out the first two categories should not be difficult, and
certainly does not require making investigation, whether of the NSA or otherwise,
as to whether information supplied by the NSA does result from intercept.
Effectively for the purposes of this hearing the Claimants are accepting that this
third category of information, and the Respondents’ dealings with it, would not need
justification by reference to Article 8.