MR JUSTICE BURTON
Approved Judgment
(2)
As to the request referred to in paragraph 1(b) of the Disclosure above (a
“1(b) Request”),
“Any such request would only be made in exceptional
circumstances, and has not occurred as at the date of this
statement.”
49.
50.
As described in paragraph 10 above, the Claimants made submissions as to the
Disclosure, both in writing and at the further open hearing, which, insofar as
relevant to this Prism Issue, are as follows:
(i)
They relied upon and repeated their arguments that the Tribunal is not
entitled to look below the waterline to examine the arrangements and
safeguards, even if the Tribunal is satisfied that there is adequate indication
of them above the waterline and even for the purpose of assessing their
adequacy.
(ii)
They submitted that the Disclosure which was produced after the first
closed hearing and then amended in the light of the Claimants’ written
submissions and the further closed and open hearings, was unsatisfactory in
that it did not disclose its sources nor of what it was a gist or summary.
(iii)
The description of circumstances in which such a request could be made
where a s.8(4) warrant was in existence was unclear.
(iv)
They complain of the limitation of the Disclosure by reference to paragraph
48(1) to Prism and Upstream, but it is plain that this case, and this Issue, only
relate to Prism and Upstream.
They also made understandable complaint about the limitation of paragraph 1 of the
Disclosure to unanalysed intercept and associated communications data. This is
now clarified and met by the further Disclosure of evidence given in closed set out
in paragraph 48 above. As for the balance of the Claimants’ submissions:
(i)
We shall return further to this later in the judgment, but we conclude that
the Tribunal is entitled to look below the waterline in order to be satisfied
(a) that there are adequate safeguards (b) that what is described above the
waterline is accurate and gives a sufficiently clear signpost to what is below
the waterline without disclosing detail of it.
(ii)
We do not accept that the holding of a closed hearing, as we have carried it
out, is unfair. It accords with the statutory procedure, and facilitates the
process referred to in paragraphs 45 and 46 above.
This enables a
combination of open and closed hearings which both gives the fullest and
most transparent opportunity for hearing full arguments inter partes on
hypothetical or actual facts, with as much as possible heard in public, and
preserves the public interest and national security.
(iii)
The Disclosure has been a running document, being amended by additions or
clarifications on 2 occasions (ignoring one which was necessitated by an
unfortunate typographical error which was entirely the fault of the Tribunal