MR JUSTICE BURTON
Approved Judgment
years, and in certain cases are significantly shorter (intelligence reports that
draw on such data are treated as a separate category, and are retained for
longer). Data may only be retained for longer than the applicable maximum
retention period where prior authorisation has been obtained from a senior
official within the particular Intelligence Service at issue on the basis that
continued retention of the particular data at issue has been assessed to be
necessary and proportionate (if the continued retention of any such data is
thereafter assessed no longer to meet the tests of necessity and
proportionality, such data are deleted). As far as possible, all retention
periods are implemented by a process of automated deletion which is
triggered once the applicable maximum retention period has been reached for
the data at issue. The maximum retention periods are overseen by, and
agreed with the Commissioner. As regards related communications data in
particular, Sir Anthony May made a recommendation to those of the
Intelligence Services that receive unanalysed intercepted material and related
communications data from interception under a s8(4) warrant, and the interim
Commissioner (Sir Paul Kennedy) has recently expressed himself to be content
with the implementation of that recommendation.
The Intelligence Services’ internal “arrangements” under SSA, ISA and ss.1516 of RIPA are periodically reviewed to ensure that they remain up-to-date
and effective. Further, the Intelligence Services are henceforth content to
consider, during the course of such periodic reviews, whether more of those
internal arrangements might safely and usefully be put into the public domain
(for example, by way of inclusion in a relevant statutory Code of Practice).
5.
127.
The Claimants made the following submissions in response to these further
Disclosures, in addition both to those set out in paragraphs 49-50 above and to
repeating and adopting those they made during the open hearing.
128.
First they submitted that the further information supplied was not adequate, being
contained neither in statute nor in the Code pursuant to s.71 of RIPA. Their
submission was that if the arrangements described were not contained in statutory
form or in a code required to be laid before Parliament then it could be changed and
was thus changeable at an ‘executive whim’, by which they referred to the
possibility of change in administrative policy, somewhat pejoratively, given the
inevitable constraints inherent in any such changes. The arrangements were
therefore not suitable to be taken into account in consideration of whether they were
according to law or prescribed by law. They referred to Malone at paragraphs 67,
68 and 76 and Liberty at paragraphs 60-61 and 68.
129.
We are satisfied that this proposition is not to be derived from those authorities,
taken together with the other authorities to which we have referred in detail in
paragraphs 37-38, 85-88, 118-119 and 121-124 above. Particularly in the field of
national security, undisclosed administrative arrangements, which by definition can
be changed by the Executive without reference to Parliament, can be taken into
account, provided that what is disclosed indicates the scope of the discretion and the
manner of its exercise (see in particular paragraph 118(a) above). This is
particularly so where: