MR JUSTICE BURTON
Approved Judgment
is provided for and a threat to public security” and “any objective criterion by
which to determine limits of the access of the competent national authorities to the
data”. That is plainly not so here, where the s.8(4) warrant will have been granted.
Mr Eadie submitted that, notwithstanding the evidence of Mr King and Mr Brown,
interference with communications data is plainly less intrusive than access to the
contents of the communications, and less informative. In that context, he submitted
that although in Malone, at paragraph 84, the Court decided that access to metering
information amounted to an interference with an Article 8 right, it plainly concluded
that it was to be “distinguished from interception of communications”, by virtue, he
says, of its lesser degree of intrusion. He referred also to the passage in Uzun,
which we have quoted in paragraph 34 above, as supporting the same conclusion.
112.
As for the justification for any interference with Article 8, Mr Eadie submitted as
follows:
i)
S.16(2) is clearly in accordance with law. He set out the reasons for the
exemption of communications data, namely that the metadata enabled
compliance with the difficult task imposed by s.16(2) with regards to contents.
He submitted as follows in paragraph 121.5 of his skeleton argument:
“(a)
In order for s. 16 to work as a safeguard in relation to
individuals who are within the British Islands, but
whose communications might be intercepted as part of
the s8(4) Regime, the Intelligence Services need
information to be able to assess whether any potential
target is “for the time being in the British Islands” (for
the purposes of s. 16(2)(a)). Communications data is a
significant resource in this regard.
(b)
In other words, an important reason why the
Intelligence Services need access to related
communications data under the s.8(4) Regime is
precisely so as to ensure that the s. 16 safeguard works
properly and, insofar as possible, factors are not used
at the selection that are - albeit not to the knowledge of
the Intelligence Services - “referable to an individual
who is ... for the time being in the British Islands”.”
This was, he submitted, plainly the express, and sensible, purpose of
Parliament.
ii)
The structure of s.16 is quite clear, and amounts to the safeguard intended in
respect of the operation of the s.8(4) warrant discussed above. The existence
of the exemption for communications data is nothing new, and had been
intended.
iii)
Communications data are fully protected by the safeguards of s.15(2) handling
and (3) destruction, etc. The protection for communications data is thereby
established, and such protection is only less than for contents, by virtue of
s.16(2), in relation to some communications. If this could be said to be