MR JUSTICE BURTON
Approved Judgment
activities of NGOs, it was likely that there was no or no adequate provision for
dealing with confidential information obtained by intercept in that context (“NGO
confidence”). Accordingly in his written submissions dated 17 November 2014 he
asked the Tribunal to direct the Respondents to disclose the original documents
(subject to redaction as appropriate) containing their policies and procedures for the
handling of such confidential material derived from intercept in relevant
circumstances.
135.
It is important to set this very belated request into the context of these proceedings:
(i)
It is right that the Claimants pleaded from the outset that Article 10 applied
to investigatory NGOs as to journalists, and that in the Respondents’
pleadings this was denied.
(ii)
Amnesty in its claim specifically alleged in relation to LPP, but not in
relation to NGO confidence, a case (in particular at paragraph 58(g) of its
grounds) that there was likely to be no or no adequate (or in any event no
accessible) legal framework for the protection of LPP in relation to
intercepted documents.
(iii)
That case was, by an agreed direction of 14 February 2014, hived off to be
dealt with in the Belhadj case, to which Amnesty was joined as an
additional claimant.
(iv)
There was no similar case made in respect of NGO confidence. The issues
in relation to Article 10, as agreed in the 14 February direction were, as
discussed in paragraph 12 above, simply mirror images of the same issues
under Article 8 and raised (save as set out in paragraphs 149 to 151 below)
no further or separate issue.
(v)
The arguments raised on Article 10 were led at the hearing by Liberty,
according to the skeleton arguments served by the Claimants, and Liberty’s
skeleton addressed Article 10 succinctly:
(a)
In relation to the Prism Issue (iii):
“54. For the same reasons the Claimants submitted that the
statutory regime does not satisfy the Article 8(2) “in
accordance with the law” requirement, it does not satisfy the
Article 10(2) “prescribed by law” requirement”.
(b)
(vi)
136.
Similarly (mutatis mutandis) in relation to the s.8(4) issues (vi)
and (vii), at paragraphs 102-103 of the skeleton.
This is exactly how Article 10 was addressed by the Claimants at the
hearing, as set out in paragraphs 149-152 below, save for the addition of the
argument there addressed, in relation to prior judicial authorisation.
Quite apart from the fact that Liberty’s new argument (set out in 20 paragraphs at
the close of its 17 November 2014 submissions) is not, in the Tribunal’s judgment,
within the ambit of the additional written submissions anticipated or permitted at the