MR JUSTICE BURTON
Approved Judgment
existence of two programmes in the United States called Prism and Upstream,
which have been publicly admitted in the United States by the NSA, and for
confirmation that GCHQ has obtained information from the United States
Government that the United States Government obtained via Prism, none of
the matters the subject of the assumed facts are admitted by the Respondents
(i.e. they fall within the Neither Confirm Nor Deny (“NCND”) policy to which
we shall refer below), and are only assumed for the purposes of this hearing.
Some further evidence has been put in by both Claimants and Respondents by
way of background, which has not been subject to cross-examination, and
which did not detract from the NCND policy nor the manner in which the
hearing has been conducted.
ii)
As for the Claimants, they have not needed to prove any of the activities,
which are assumed to have occurred, and by virtue of which interference with
their privacy has been assumed. This is consistent with the normal practice of
this Tribunal, which enables claimants to bring claims without having the kind
of arguable case which they would need to pursue a case in the High Court,
and also with the jurisprudence of the European Court of Human Rights
("ECtHR”), which permits and encourages such hypothetical cases on the basis
that if there has been an unlawful interference a claimant may have been a
victim. Thus locus is established so as to permit “general challenges to the
relevant legislative regime” (Kennedy v United Kingdom [2011] 52 EHRR 4
at paragraph 119) by those who are “unable to demonstrate that the impugned
measures had actually been applied to them” (Weber and Saravia v
Germany [2008] 46 EHRR SE5 at paragraph 78): see also Liberty v United
Kingdom [2009] 48 EHRR 1 at paragraph 57.
5.
The claim before us fell into two parts. The first part was in respect of what has
been called the “Prism issue”, i.e. referring to the NSA programme referred to
above, or the “Intelligence Sharing issue” because it relates to the supply to the
Respondents by the NSA of information, including information by way of
communications intercepted either via Prism, or possibly via another programme
called the “Upstream programme”. The second part has been described as the
“alleged Tempora interception operation”, although there has been no admission or
explanation as to what this alleged Tempora programme consists of, and the
argument in fact has revolved around the operation by the Respondents of warrants
under s.8(4) of the Regulation of Investigatory Powers Act 2000 (“RIPA”) (“s.8(4)
Warrants”). We prefer to use the description “s.8(4) issue” in describing this
question, as the lawfulness or otherwise of what the Respondents have done does
not depend upon the existence or methodology of “Tempora”.
6.
It is important to set these complaints into context. The actions of the Respondents,
which are not suggested to be unlawful save in the respects alleged by reference to
Article 8 of the Convention, to which we refer below, are all taken, or assumed to be
taken, in the interests of national security, and at a time when, according to the most
recent Annual Report to Parliament of the Intelligence and Security Committee of
Parliament (“ISC”), the threat to the United Kingdom from international terrorism is
‘Substantial’, indicating that an attack is a strong possibility; this has been recently
upgraded to ‘Severe’, meaning that an attack is highly likely. The Claimants accept
that Convention jurisprudence recognises the need for states to defend themselves