MR JUSTICE BURTON
Approved Judgment
31 October hearing, those submissions could have been made at any time even prior
to the Respondents’ skeleton of 3 July 2014, and in tandem with Amnesty’s similar
submissions in relation to LPP, which were hived off into separate proceedings. It
is, in the judgment of the Tribunal, far too late for any such case to be made now,
not to speak of one which is said to require further disclosure and would certainly
require considerable further argument, to be incorporated within the ambit of these
proceedings and at this stage.
137.
It is plain that there are very substantial published procedures in s.15 and the Code,
described above. The Respondents are in our judgment justified in their concern
that disclosure of further particulars of those procedures would reveal and disclose
sensitive and specific details with regard to methods of obtaining and dealing with
information, and reveal the precise capacity and capabilities of the Respondents, and
we are satisfied that no more needs to be disclosed.
138.
We were concerned in the closed hearings to be satisfied in particular as to the
existence of arrangements relating to the duration of retention and destruction of
information the product of intercept or obtained under Prism. The concerns of the
Claimants are that a database can be built up of communications data (including
communications data not excluded by s.16(2), as discussed above) so as to justify a
continuing databank, continuously renewed by reference to the continued necessity
for it for one of the s.5(3) purposes, not necessarily being the statutory purpose for
which the communications data was originally intercepted.
139.
We are satisfied as a result of what we saw and heard at the closed hearings, and the
further Disclosure set out above, that this is not the case and that there are adequate
arrangements, in respect of duration of retention and destruction, to control and
regulate the retention of such material. Such retention, storage and destruction
policies and procedures are also regularly supervised by the Commissioner, as he
makes clear in his Report.
140.
We are satisfied, subject to what we say in paragraphs 153 and 154 below, that the
s.8(4) regime is sufficiently compliant with the Weber requirements and in any
event is in accordance with law, and that paragraph 164 of the ECtHR judgment in
Kennedy (cited in paragraph 123 above) endorses this conclusion. As set out in
paragraph 55(ii) in relation to the Prism Issue, we are satisfied that the s.8(4)
arrangements are sufficiently signposted, in the statute, in the Code, in the
Commissioner’s Reports, and as now recorded in this judgment.
DISCRIMINATION
141. The discrimination claim arises out of Article 14 of the Convention (read with Article
8): a parallel claim by reference to the Charter of Fundamental Rights of the EU did
not need to be separately pursued. Article 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”