MR JUSTICE BURTON
Approved Judgment
The Tribunal considered and conclude that this was the correct analysis and
approach. As will be seen, in the context of a closed hearing there were matters
derived from the evidence in the closed hearing which the Respondents were
prepared to consent to disclose, and there were no matters which the Tribunal
considered should be disclosed which the Respondents declined to disclose.
Written submissions by the parties and a further closed and open hearing then
followed, and some further matters were disclosed voluntarily by the Respondents.
Such open disclosures appear in paragraphs 46 and 47 and 126 below (“the
Disclosures”).
11.
In the judgment which follows, we shall address in full the contentions which were
made by the parties at the open hearings, and reach our conclusions on them. Save
in respect of the Disclosures, it is only in limited respects, as referred to in
paragraphs 54-55 and 138-139 below, that it has been necessary to refer to the
closed hearings for the purposes of this judgment.
12.
Before we set out the agreed factual assumptions or “alleged factual premises” in
relation to the issues, we should clarify the position in respect of the Convention and
the Agreed Issues listed before us. The questions for us have revolved around
Article 8, which reads, under the Heading “Right to Respect for Private and Family
Life”, as follows:
“1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
national security, public safety or the economic wellbeing of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others.”
Liberty, Privacy and Amnesty International also rely upon Article 10 “Freedom of
Expression”, on the basis that, as campaigning organisations, they are also entitled
to the protection of that Article which primarily relates to the freedom of the press.
It is common ground that, subject to one possible exception to which we shall return
later, no different questions fall to be decided by reference to Article 10 than are
raised by Article 8, and we shall therefore leave aside the matter of Article 10,
which underlies Agreed Issues (ii), (iii), (vi) and (vii).
13.
There were also certain of the Agreed Issues (Issue xii), (xiii) and (xiv) which were
described as “Issues of law relating to procedure”, and which, by agreement, have
not fallen for decision at this hearing. They relate in part to the NCND policy, the
importance of which is emphasised by the Respondents in the following paragraphs
of their Open Response:
“5. Secrecy is essential to the necessarily covert work and
operational effectiveness of the Intelligence Services, whose
primary function is to protect national security. See e.g.