MR JUSTICE BURTON
Approved Judgment
Commissioner (whose powers are set out in Part IV of the Act)
(6) the availability of proceedings before this Tribunal and (7)
the oversight by the Intelligence and Security Committee, an
all-party body of nine Parliamentarians created by the
Intelligence Services Act 1994, whose operation is described in
the Respondents' evidence. The existence of the Commissioner
and the Tribunal alone expressly weighed with the Commission
in its decision in Christie.
36. It is plain that, although in fact the existence of all these
safeguards is publicly known, it is not part of the requirements
for accessibility or foreseeability that the precise details of
those safeguards should be published. The Complainants'
Counsel has pointed out that it appears from the Respondents'
evidence that there are in existence additional operating
procedures, as would be expected given the requirements that
there be the extra safeguards required by s 16 of the Act, and
the obligation of the Secretary of State to ensure their existence
under sI5(1)(b). It is not suggested by the Complainants that
the nature of those operating procedures be disclosed, but that
their existence, i.e. something along the lines of what is in the
Respondents' evidence, should itself be disclosed in the Code of
Practice.
37. We are unpersuaded by this. First, such a statement in the
Code of Practice, namely as to the existence of such
procedures, would in fact take the matter no further than it
already stands by virtue of the words of the statute. But in any
event, the existence of such procedures is only one of the
substantial number of safeguards which are known to exist.
Accessibility and foreseeability are satisfied by the knowledge
of the criteria and the knowledge of the existence of those
multiple safeguards.
38. It is in those circumstances that the Respondents submit, by
reference to the criteria in s5(3), as exercised with
proportionality and the existence of the multiple safeguards,
that both the question and the answer are the same as in
Christie. We agree. It is clear from the Sunday Times case at
para 49 that foreseeability is only expected to a degree that is
reasonable in the circumstances, and the circumstances here
are those of national security, as discussed in Klass and
Leander. This is not a Silver case where the legislation itself
was inadequate and the guidelines were unpublished. In this
case the legislation is adequate and the guidelines are clear.
Foreseeability does not require that a person who telephones
abroad knows that his conversation is going to be intercepted
because of the existence of a valid s8(4) warrant. The "why
me?" test is as inapt in this case as it would have been found to
be by the Court of Appeal in its recent decision in R ex parte