MR JUSTICE BURTON
Approved Judgment
(i)
The Code, which was the subject of consideration by the ECtHR, latterly in
Kennedy, itself refers to a number of arrangements not contained in the
Code, and even in Liberty (at paragraph 68) the ECtHR required the
disclosure of only “certain details”.
(ii)
There is the system of oversight, which the ECtHR has approved, which
ensures that such arrangements are kept under constant review.
130.
The Claimants further pointed out, and relied upon the fact, that in Belhadj, referred
to in paragraph 54 above, in which issue is joined between the Respondents and
those claimants (who include, among others, Amnesty) as to the adequacy and
lawfulness of the Respondents’ treatment of intercepted material which may be
subject to legal and professional privilege, in reply to a lengthy Request for
Information served by the claimants, the Respondents supplied a document (referred
to in paragraph 54 above) amounting to a redacted extract from the GCHQ
Compliance Guide. This contained a gisted passage summarising GCHQs “overall
policy” as to “retention limits”. The Claimants submit that they should have been
entitled to see such a document in this case, and suggest that if it did not offend
against national security to supply such document in Belhadj then it would not do
so in this case.
131.
The Belhadj case is very different. It has not yet reached a hearing, but it is still at
the interlocutory stage, and is limited in its scope, as discussed. Apart from a query
as to terminology, by which we are not persuaded, it is not suggested by the
Claimants that the gist of the GCHQ policy (save that it also includes a provision for
retention of certain material to comply with legal requirements) shows anything
materially different from, inconsistent with or additional to the gist that has been
supplied of the closed evidence in this case. What has happened in the present case
is that there has been a closed hearing, at which pursuant to s.68(6) of RIPA the
Respondents were obliged to and did provide the relevant documents. Within the
limits of the same concerns about national security, a summary has then been
provided by the Respondents of the evidence given and documents produced at the
closed hearing, and disclosed to the Claimants. That summary of the evidence is
consistent with the summary provided in Belhadj. We do not see either that there
has been inconsistency or that the Claimants have been prejudiced or treated
materially differently from the claimants in Belhadj.
132.
Two further submissions were made with regard to the Disclosure:
(i)
Whereas in paragraph 3.56 of the Commissioner’s Report, one of the
paragraphs referred to in paragraph 92 above, the Commissioner stated that
he had yet to satisfy himself fully that some of the retention periods were
justified, paragraph 4 of the Disclosure states that he has now made a
recommendation (said to have been implemented). This is not evidence
which could have been given in any detail in open, and is sufficiently
summarised by that paragraph in the Disclosure.
(ii)
Privacy relies on paragraph 5 of the Disclosure as indicating that there is
more that could be disclosed. It states that there may be yet further review,
resulting in additional disclosure of matters which may in the future be
concluded not to be prejudicial to national security. Plainly, with the