MR JUSTICE BURTON
Approved Judgment
it be made, when referred to the Secretary of State, must address the issue of
s.16(3).
54.
Subject to this, and to the caveat in paragraph 52(i) above, we are satisfied that the
concerns as to the categories in paragraphs 28(i) and (ii) above, as to which we were
addressed, are resolved. Nothing that we saw or heard in the closed hearings cast
any doubt upon what is stated by the ISC, as set out in paragraph 23 above. As for
paragraph 6.8.6 of the Commissioner’s Report (set out in paragraph 24 above), this
is now corroborated by what has been disclosed, in circumstances to which we shall
refer in paragraph 130 below, in a document disclosed by the Respondents in other
proceedings before this Tribunal (Belhadj IPT/13/132-9H), relied upon by the
Claimants in these proceedings, at paragraph 4: “GCHQ treats all operational data
as if it were obtained under RIPA”. There are rules and procedures, the nature and
effect of which have been sufficiently disclosed, which result in the same
requirements being applied to both those two categories, and indeed to all intercept,
solicited or unsolicited, obtained pursuant to Prism and/or Upstream, as apply to
intercept obtained under RIPA by the Intelligence Services themselves.
55.
After careful consideration, the Tribunal reaches the following conclusions:
(i) Having considered the arrangements below the waterline, as described in this
judgment, we are satisfied that there are adequate arrangements in place for the
purpose of ensuring compliance with the statutory framework and with Articles 8
and 10 of the Convention, so far as the receipt of intercept from Prism and/or
Upstream is concerned.
(ii) This is of course of itself not sufficient, because the arrangements must be
sufficiently accessible to the public. We are satisfied that they are sufficiently
signposted by virtue of the statutory framework to which we have referred and
the Statements of the ISC and the Commissioner quoted above, and as now, after
the two closed hearings that we have held, publicly disclosed by the Respondents
and recorded in this judgment.
(iii)
These arrangements are subject to oversight.
(iv)
The scope of the discretion conferred on the Respondents to receive and
handle intercepted material and communications data and (subject to the s.8(4)
issues referred to below) the manner of its exercise, are accordingly (and
consistent with Bykov - see paragraph 37 above) accessible with sufficient
clarity to give the individual adequate protection against arbitrary
interference.
We refer in paragraphs 153-155 below to the consequences of these conclusions.
56.
We should deal with a submission by Ms Brimelow for Amnesty International,
although not made or adopted by the other Claimants, made by reference to Article
8, and to Article 17 of the International Covenant on Civil and Political Rights,
which provides that:
“No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence.”