MR JUSTICE BURTON
Approved Judgment
and to introduce measures in support of national security, and that the concept,
familiar within the confines of Article 8, of accessibility and foreseeability, of laws,
rules and arrangements established by democracies in that regard may be
approached differently from those situations where national security is not an issue.
In particular, the Claimants accept that different forms of intelligence gathering do
raise different privacy interests, and the hearing before us has included
consideration of where and how to place and evaluate those before us.
7.
After the five day public hearing, we held a one day closed hearing to consider
certain matters which were, in the considered judgment of the Respondents, too
confidential and sensitive for discussion in open court in the interests of preserving
national security, and in accordance with our jurisdiction to hold such a closed
hearing pursuant to Rule 9 of the Investigatory Powers Tribunal Rules 2000. As
will appear, we considered in particular the arrangements, which Mr Eadie QC
described during the public hearing as “below the waterline”, regulating the conduct
and practice of the Intelligence Services, in order to consider (i) their adequacy and
(ii) whether any of them could and should be publicly disclosed in order to comply
with the requirements of Articles 8 and 10 of the Convention as interpreted by the
ECtHR, to which we will refer further below.
8.
At that hearing, at which the Claimants were not represented, counsel for the
Tribunal played a full part. We heard submissions, both oral and in writing, during
and subsequent to the open hearing as to the role of counsel to the Tribunal and as to
whether a Special Advocate should be appointed to represent the Claimants and be
instructed by them. At our invitation, Counsel to the Tribunal made written
submissions to us, which contained the following passage by way of distinguishing
between the role of Special Advocate and Counsel to the Tribunal:
“15.1 A Special Advocate is appointed (normally, but not
necessarily, pursuant to statute) to represent the interests of a
party at hearings from which that party is excluded. A Special
Advocate is required to be partisan. He or she makes such
submissions (if any) as he considers will advance the interests
of the excluded party. If the Special Advocate reaches the view
that it would not advance the interests of the excluded party to
make submissions at all (as has happened in a few cases), then
the proper course is to decline to make submissions at all, even
though this leaves the tribunal without assistance.
15.2 Counsel to the Tribunal performs a different function, akin
to that of amicus curiae. His or her function is to assist the
tribunal in whatever way the tribunal directs. Sometimes (eg in
relation to issues on which all parties are represented), the
Tribunal will not specify from what perspective submissions are
to be made. In these circumstances, counsel will make
submissions according to his or her own analysis of the
relevant legal or factual issues, seeking to give particular
emphasis to points not fully developed by the parties. At other
times (in particular where one or more interests are not
represented), the Tribunal may invite its counsel to make
submissions from a particular perspective (normally the