MR JUSTICE BURTON
Approved Judgment
iv)
47.
It has, and takes, the opportunity, with the benefit of full argument, to probe
fully whether matters disclosed to it in closed hearing, pursuant to the
Respondents’ obligation to do so pursuant to s.68(6) of RIPA, can and should
be disclosed in open and thereby publicised.
We have been greatly assisted by the substantial submissions in the open hearing,
and in the closed hearings by sight of and understanding what Mr Eadie called the
“arrangements below the waterline” and their explanation, and submissions by the
Respondents and by Counsel to the Tribunal. As a result of the process described in
paragraph 10 above, the following Disclosure was made by the Respondents
relevant to the Prism Issue. It was made by reference to the evidence given in the
closed hearing which they were prepared to disclose, subject to the express caveat
that references to “the Intelligence Services” in the Disclosure were references to
whichever of the Intelligence Services carried out the relevant activities described in
it, in the context of the factual premises set out in paragraph 14 above:
“1.
A request may only be made by the Intelligence Services
to the government of a country or territory outside the
United
Kingdom
for
unanalysed
intercepted
communications (and associated communications data),
otherwise than in accordance with an international
mutual legal assistance agreement, if either:
a. a relevant interception warrant under the Regulation
of Investigatory Powers Act 2000 (“RIPA”) has
already been issued by the Secretary of State, the
assistance of the foreign government is necessary to
obtain the communications at issue because they
cannot be obtained under the relevant RIPA
interception warrant and it is necessary and
proportionate for the Intelligence Services to obtain
those communications; or
b. making the request for the communications at issue in
the absence of a relevant RIPA interception warrant
does not amount to a deliberate circumvention of RIPA
or otherwise contravene the principle established in
Padfield v. Minister of Agriculture, Fisheries and
Food [1968] AC 997 (for example, because it is not
technically feasible to obtain the communications via
RIPA interception), and it is necessary and
proportionate for the Intelligence Services to obtain
those communications. In these circumstances, the
question whether the request should be made would be
considered and decided upon by the Secretary of State
personally.
For these purposes a “relevant RIPA interception
warrant” means either (i) a s8(1) warrant in relation to
the target at issue; (ii) a s8(4) warrant and an
accompanying certificate which includes one or more