MR JUSTICE BURTON
Approved Judgment
under the s. 8(4) regime issued in respect of the alleged
Tempora programme may in principle involve (i) the
interception (and subsequent recording) of communications
and communications data without there being any reason to
suspect that the communications of the individuals in question
are relevant to national security, serious crime and/or the
economic well-being of the United Kingdom, and (ii) the
intercepted communications and communications data so
obtained being processed to determine whether (pursuant to s.
16 and the certificate in question) it may be read, looked at or
listened to by one or more persons?
Issue (xi)
Does the alleged Tempora programme and/or the s. 8(4)
regime give rise to unlawful discrimination contrary to (i) Art.
14 of the ECHR (as read with Art. 8 and/or Art. 10), . . .”
We have foreshortened the wording of this Issue, because it became common
ground that there was only need to consider the Convention in this regard.
80.
Although these issues were agreed as forming the basis for the hearing, it was
inevitable that some of them should elide and overlap, and it seems to us that the
following Four Questions encapsulate the arguments:
(1) Is the difficulty of determining the difference between external and internal
communications, whether as a theoretical or practical matter, such as to cause the
s.8(4) regime not to be in accordance with law contrary to Article 8(2)?
(2) Insofar as s.16 of RIPA is required as a safeguard in order to render the
interference with Article 8 in accordance with law, is it a sufficient one?
(3) Is the regime, whether with or without s.16, sufficiently compliant with the
Weber requirements, insofar as such is necessary in order to be in accordance
with law?
(4) Is s.16(2) indirectly discriminatory contrary to Article 14 of the Convention, and,
if so, can it be justified? It should be explained that, led by Mr Jaffey, the
Claimants developed this more limited argument in the course of the hearing,
effectively not pursuing the original pleaded claim by all Claimants that s.8(4) and
(5) were so discriminatory.
The relief sought is effectively for a declaration that the Respondents acted
unlawfully in violation of the Claimants’ rights under Articles 8 and 14 ECtHR.
81.
Before we turn to consider these questions, it is important to set out four matters of
juristic background.
82.
By a judgment of 9 December 2004 this Tribunal, Mummery LJ President, Burton J
(then Vice-President), made a ruling in relation to the s.8(4) regime in a case which
has been called the British Irish Rights Watch case, in which the complainants