MR JUSTICE BURTON
Approved Judgment
scope of any discretion conferred on the competent authority
with sufficient clarity, having regard to the legitimate aim of
the measure in question, to give the individual adequate
protection against arbitrary interference.”
39.
We consequently bear carefully in mind the requirement to give adequate protection
against arbitrary interference on the one hand, but on the other hand that
foreseeability does not require all the rules which govern or exclude that
arbitrariness to be disclosed, particularly in the field of national security. We thus
approach this Prism Issue, in which it is, as we have set out, largely common ground
that the Weber requirements do not need to be enforced in all their rigour, in
relation to a case where the interception has already been carried out by others.
40.
In Esbester v UK [1994] 18 EHRR CD 72, the Commission, after reference to the
passages in Malone and Leander set out or referred to above, addressed the
complaints that guidelines governing supervision of the use of information obtained
by the Security Services were unpublished. It continued (at CD 74):
“The Commission notes that the exercise of the Security
Service’s functions [is] subject to express limitations and to the
supervision of a tribunal and commissioner appointed pursuant
to the 1989 Act. The guidelines referred to in section 2(3) of
the Act relate only to the administrative implementation of
preceding provisions, which expressly limit the use of
information by the Service to that necessary to fulfil its
functions.
...
In light of the above, the Commission considers that in the
present case the law is formulated with sufficient precision to
enable the applicant to anticipate the application of vetting
procedures and to the likely nature of the involvement of the
Security Service and police Special Branches with regard to the
collection, recording and release of information relating to
himself.”
41.
We consider that what is required is a sufficient signposting of the rules or
arrangements insofar as they are not disclosed. We find the Claimants’ asserted
distinction between the first and second categories and the third category referred to
in paragraph 28 above a very difficult one, certainly in terms of the asserted
contrasting consequences. We do not find that Weber – or ‘nearly-Weber’ –
should apply to two of the categories, though not applying to the third. We are
satisfied that in the field of intelligence sharing it is not to be expected that rules
need to be contained in statute (Weber) or even in a code (as was required by virtue
of the Court’s conclusion in Liberty v UK. It is in our judgment sufficient that:
i)
Appropriate rules or arrangements exist and are publicly known and
confirmed to exist, with their content sufficiently signposted, such as to give
an adequate indication of it (as per Malone: see paragraph 37(ii) above).