This case dealt with: (i) the Telecommunications Act 1984 s 94 relating to the obtaining of bulk communication data pursuant to directions given under that Act. “This issue was expressed as whether there had been unlawful delegation of the statutory powers of the Foreign Secretary under s 94, but it has been expanded so as to include whether the directions given by the Foreign Secretary under s 94 complied with the terms of his statutory duty or were in accordance with the law (Issue 1). (ii) What was the consequence of the finding of unlawfulness made in the first judgment dated 17 Oct 2016, in respect of the BCD regime prior to 4 Nov 2015 (resulting from the finding of a breach of ECHR, art 8), now extended to cover the consequences of any conclusion made in respect of Issue 1 (Issue 2). (iii) Sharing of bulk communications data (BCD)/bulk personal data (BPD) (“Issue 3”) – this issue was addressed on the basis of assumptions or hypotheses. The hypothesis being that there has been sharing of BCD or BPD, would that be lawful with (a) foreign agencies (at ECHR or EU law) (Issue 3A), (b) Law Enforcement Agencies (LEAs), such as the Police or HMRC (at ECHR, EU or domestic UK law) (Issue 3B), (c) contractors or researchers (Industry Partners) (at ECHR or EU law) (Issue 3C). (iv) Do the steps taken by way of collection, retention or use of BCD or BPD comply with the requirements of proportionality (with reference to the ECHR or EU law) (Issue 4)”.
In addition, the claimant made an application to reopen the First Judgment (17 Oct 2017), insofar as it concluded that the oversight by the Commissioners (the Intelligence Services Commissioner) and the Interception of Communications Commissioner was adequate in respect of BPD subsequent to Mar 2015 and BCD subsequent to 4 Nov 2015 (Issue 5).
The Tribunal made the following conclusions:
Issue 1 and 2: it was unanimously concluded that those Directions by the Foreign Secretary identified in the CLOSED schedule were not in accordance with the law, but no further order was made.
Issue 3A: By a majority it was concluded that the regime in respect of sharing of BCD/BPD with foreign agencies complied with ECHR, art 8. Issue 3B: it was unanimously concluded that the regime in respect of sharing BCD/BPD with law enforcement agencies complied with art 8 and UK domestic law. Issue 3C: It was unanimously concluded that the regime in respect of sharing BCD/BPD with industry partners complied with art 8. Further, in relation to GCHQ’s avowed sharing of BCD/BPD with industry partners, it was unanimously concluded that such sharing was compatible with art 8.
Issue 4: It was unanimously concluded that the steps taken by way of collection, retention and use of BCD or BPD by the respondents complied with the requirements of proportionality pursuant to ECHR art 8 and EU law.
Issue 5: It was unanimously concluded that, “save in the respect consequent upon our conclusion in relation to issues 1 and 2, the application to set aside the conclusions in our First Judgment is dismissed”.
Jonathan Glasson QC was involved in this case.