TrustHLT/LaCour huggingface dataset:
GR1 (Government): and this is the second part of the answer, that analysts who do examine material in that way are obliged to create records of how and why they've done it.
GR1 (Government): And the purpose of that is the obvious one, which is to create an auditable record, which of course feeds into the oversearch regime and the commissioner's role and his ability to determine whether or not particular selected instances were or were not necessary and proportionate, and to take steps if not and to approve if so, as it were.
GR1 (Government): I think Judge Koskelo's questions on search terms broke down, if I understood it correctly, into specific search terms on selected material.
GR1 (Government): And then the question was, well, what happens to the remainder of the material?
GR1 (Government): And what about pattern searching and matters of that kind?
GR1 (Government): I think my answer to that is that the same pretty much applies.
GR1 (Government): It is permissible.
GR1 (Government): Indeed, it is one of the critical parts of the functioning of this sort of data and its utility that untargeted searches, by which I mean searches not, for example, by reference to particular names, can be run.
GR1 (Government): You're looking for patterns.
GR1 (Government): You're looking for seed information and to develop.
GR1 (Government): That is the very purpose of the use of these sorts of this sort of material.
GR1 (Government): So those patterns can be run.
GR1 (Government): But in the same way, if you're going to run pattern searches, they have to be justified as necessary and proportionate.
GR1 (Government): And in the same way, a record would have to be created so as to facilitate and enable proper oversight by the commissioner.
GR1 (Government): And I think that also answers the final part of that question, which is, is there any independent body who can issue, as it were, some binding instruction about filtering or search terms?
GR1 (Government): Are there any set criteria?
GR1 (Government): Does the safeguarding, as it were, have that degree of fixed or set architecture in it?
GR1 (Government): Does it have that skeleton of safeguarding?
GR1 (Government): And the answer to that is that there aren't any set rules of that kind that apply to analysts.
GR1 (Government): But that, in my respectful submission, is not necessarily or at all a vice of the system or a necessary part of it if one recognizes, as one must, that whatever search terms they use have to be justified as necessary and proportionate and have to be the subject of a record so that they can be overseen.
GR1 (Government): And so although there aren't, as it were, set structural limitations on the nature of search terms, in particular because the flexibility is truly necessary to enable the interrogation to perform its useful function, they still have to justify against that standard, the convention standard, and they still have to create records so that others can oversee.
GR1 (Government): And of course, to come to the final bit of it, if commissioners, in conducting their auditing function, were to come across, for example, regular use that they considered was inappropriate of particular types of search term or examination, the mechanisms by which that was done, if they were to consider that to be inappropriate in a general sense, for example, then the commissioner has all the constitutional mechanisms that exist to enable them to draw matters to the attention, for example, of the prime minister.
GR1 (Government): And you know that under the legislative regime, commissioners are obliged to and can report to the prime minister about any of the findings that they make.
GR1 (Government): And so in the hypothetical example that I've given where they're not satisfied with the way in which searching is done, for example, there are mechanisms for elevating that.
GR1 (Government): And if appropriate, change would then need to be made.
GR1 (Government): And of course, those sorts of concerns, this is where the mechanisms for oversight overlap.
GR1 (Government): If that example were to occur, the commissioner could report to the prime minister or could draw it to the attention of the agency in question.
GR1 (Government): And if they didn't react, report to the prime minister at the next stage.
GR1 (Government): That sort of formal report wouldn't only be known to the prime minister.
GR1 (Government): If you had the sort of challenge in a general sense, which is permissible to be made to the IPT, the IPT is very well aware of the nature of the commissioner reports that are made from time to time.
GR1 (Government): And so as it were, there is an additional and possible remedial route to control an additional safeguarding element building in.
GR1 (Government): That's why I described these protections, including oversight, as multilayered in my initial submissions.
GR1 (Government): Judge Harutyunyan asked questions about destruction of data when no longer necessary.
GR1 (Government): And specifically, I think if I understood the question correctly, zoomed in on the words likely to become necessary in section 15.4 of RIPA
GR1 (Government): and asked about safeguarding in relation to that.
GR1 (Government): So far as that is concerned, again, sorry to give you references into the code time and again, but the code deals with retention periods, including in particular default retention periods in paragraph 7.8 and 7.9.
GR1 (Government): Difficult, of course, and sets out default retention periods after which the thing must be destroyed.
GR1 (Government): Difficult to see how one could retain unselected material on the basis that it would be likely to become necessary, because that phraseology inevitably requires a judgment.
GR1 (Government): And the judgment is perhaps the obvious one.
GR1 (Government): Parliament evidently envisaged that certain material, in relation to certain material, it might be possible to say it is necessary to retain this, because it corresponds to or meets a particular national security need.
GR1 (Government): But no doubt the draftsman of RIPA then thought, well, hang on a second, what happens if we end up in a situation where the material in question, there may be a difficulty with demonstrating current necessity, but at any minute now it's likely to be.
GR1 (Government): Perhaps the critical safeguard in relation to all of this again comes back to that combination of IPT and particularly commissioner, because if there is a judgment call made about likelihood, and I think the specter that you were positing was an unacceptable judgment too far out in terms of likelihood.
GR1 (Government): That's what prompted, I think, the safeguarding question.
GR1 (Government): The answer to that, commissioner can review, and if interested in that area, would no doubt make his views known.
GR1 (Government): But the statutory test that is required is one of likelihood to become necessary, subject, of course, as I say, to the default periods in the code and all the description of how that destruction works.
GR1 (Government): But I don't think there's anything more in terms of actual written down code or safeguarding than features in the wording of the legislation itself.
GR1 (Government): So that's that question.
GR1 (Government): Then Judge Aiki, who mercifully, whose third question is directed to the applicant, so I can leave that on one side.
GR1 (Government): But the first two appear to be directed at us.
GR1 (Government): And the first of them related to the safeguards relating to related communications data, section 16 not applying.
GR1 (Government): And the question was, why not, as it were, restrict it to a basic type of traffic data?
GR1 (Government): And what about service and subscriber data?
GR1 (Government): I think the short answer to that, leaving aside the difficulties in relation to modern communications of trying to categorize data as traffic data, at least as a category of basic or complex, by and large, that's quite a difficult distinction and would be quite a difficult distinction to operate.
GR1 (Government): But the core, I think, answer to that question is that the only related communications data that would be obtained through intercept is traffic data.
GR1 (Government): You don't get service user or subscriber data through interception.
GR1 (Government): So that's the answer to that first question.
GR1 (Government): The second question asked, focused on the 2016 code that I've been giving you lots of references to, and focused in particular on paragraphs 4.28 to 4.31,
GR1 (Government): drawing attention to the difference between confidential personal information and confidential journalistic information, a difference that appeared, I think, from 4.26.
GR1 (Government): And going back to it, I confess I hadn't spotted that or thought about it before, mea culpa, mea culpa.
GR1 (Government): But I think the position is, as far as we can tell, that that, although it's entirely right to draw attention to the linguistic oddity, it would be a surprising construction of a document which, of course, isn't to be construed as a statute, but is to be construed as a code.
GR1 (Government): It would be an odd thing, indeed, if the particular safeguarding mechanisms, which I think concerned the provision or the writing down or the recording of reasons in 4.28, I think it was,
GR1 (Government): those didn't apply broadly to include confidential journalistic material.
GR1 (Government): So it's no part of my case to say that it doesn't include that, despite the odd, and I shall accept odd, difference of language.
GR1 (Government): Judge Pardalos asked a question about chapter 12 and asked the question whether paragraph 12.5
GR1 (Government): of the code was intended to address the concern of the investigatory powers tribunal recorded at paragraph 53 of their judgment.
GR1 (Government): And my answer to that can be mercifully short.
GR1 (Government): It is yes.
GR1 (Government): Judge Turkovich then asked questions in relation to a rather different and complex set of issues arising out of communications data and chapter 2 and asked a series of questions about the potential adequacy or otherwise of the safeguarding regime under that chapter.
GR1 (Government): With the greatest respect, that is a big topic to start trying to address in the context of this hearing.
GR1 (Government): It does not apply, we respectfully submit in our, in relation to these applications, which are about 8-4 interception and foreign liaison sharing regimes.
GR1 (Government): Chapter 2 is about the possible access that other public authorities or that public authorities might have to obtain information from CSPs direct, as it were.
GR1 (Government): It's a wholly different set of issues, a wholly different subject matter.
GR1 (Government): It's been considered again and again in the context of the Davis and Watson or the Watson litigation in front of the CJU.
GR1 (Government): But it isn't our situation.
GR1 (Government): Public authorities of the kind identified in the question don't have access to intercepted material or foreign liaison shared material held by the agencies.
GR1 (Government): It's just a fundamentally different regime.
GR1 (Government): And as I say, if you genuinely are interested in that set of issues, even though they don't arise in relation to these applications, then we'd have to do more than me trying to re-argue Watson on my feet in the five or so minutes that remain.
GR1 (Government): And that would need to be the subject of, no doubt, an intense debate of the kind that we will also, no doubt, need to have on the re-referred questions back to the Luxembourg court following the IPT's latest judgment.
GR1 (Government): But my short answer to Judge Turkovitz's first question is, careful, careful.
GR1 (Government): It's a fundamentally different regime.
GR1 (Government): And it's not this application.
GR1 (Government): A question was then asked, and I think the president also asked a question about, well, what's changed in relation to admissibility in relation to Kennedy and Burden and all of that?
GR1 (Government): Burden was, of course, principally focused on the question of Section 4 of the Human Rights Act and declarations of incompatibility and how all of that works.
GR1 (Government): And we drew attention in our opening submissions to the France and the United Kingdom case, which is the latest word from the section of the court dealing with the IPT and its utility.
GR1 (Government): But my submission is that the IPT has shown itself to be an effective remedy, a body that should, under the subsidiarity principle, be turned to in order for the domestic authorities to have the opportunity to sort an argued or alleged convention violation so as not to need to trouble this court.
GR1 (Government): And when it came to this court, you would have the benefit, as you do in this case, of a considered domestic judgment having thought through, at least initially.
GR1 (Government): You may or may not agree with them ultimately, but you would have the benefit of their judgment on the very convention issues.
GR1 (Government): So we do respectfully submit that the IPT has shown itself to be effective.
GR1 (Government): And in part, that is because of the work that it does and its jurisdiction and the nature of the judgments that it has produced.
GR1 (Government): And in part, it is because the government has shown itself to be uniformly and universally responsive to adverse judgments or to suggestions, indeed, from the IPT.
GR1 (Government): Parliament, of course, hasn't yet needed to get involved in the sense of producing revised primary legislation in answer to a ruling by the IPT.
GR1 (Government): So to that extent, I entirely accept.
GR1 (Government): One doesn't have, as it were, the primary legislative track record.
GR1 (Government): But what one does have is, as I say, a uniform and universally responsive reaction from government.
GR1 (Government): And to the extent that Parliament has needed to be involved, for example, in approving codes and so on, it has been.
GR1 (Government): And as good an example as any, it might be thought, is chapter 12 of the 2016 code itself, which, as you will have seen, was a, as it were, a statutory codification of the disclosure that is quoted at paragraph 47 of the IPT's first judgment in these proceedings.
GR1 (Government): Judge Turkovic, sorry to revert to her questions, asked a question about warrants and how long they can be extended and asked the same question in relation to the retention of data.
GR1 (Government): Could it be a prolonged or an indefinite retention?
GR1 (Government): Again, I think I've given the answer to that, which is see paragraph 7.8 and 7.9 of the code, which
GR1 (Government): make it plain that this is not in any shape or form and could not properly be characterized as an indefinite retention of data regime.
GR1 (Government): She then asked a question about whether we are dealing here with all connections.
GR1 (Government): Are all connections under surveillance or are some not?
GR1 (Government): And the answer to that is some not.
GR1 (Government): Only a small proportion are available and only a small proportion are visible.
GR1 (Government): Perhaps the best reference I can give you in relation to that, which deals directly with this question of the limit on the access, which is why I said in my examination of the nature of the interference, you've got to take it in stages, a bit like the reverse pyramid, to actually get down to the real substantive interference in these sorts of cases.
GR1 (Government): But the best reference I can give you to explain that bit of it, how many connections are available, is in the Anderson Bulk Powers Review, which you have in your bundle behind tab something.
GR1 (Government): Give you the tab number in a moment.
GR1 (Government): Paragraph 2.5.
GR1 (Government): Let me just double check.
GR1 (Government): 2.15, I think.
GR1 (Government): 2.15.
GR1 (Government): Yeah.
GR1 (Government): So it's tab 50.
GR1 (Government): Tab 50 in your bundles.
GR1 (Government): And the relevant paragraph is 2.15.
GR1 (Government): Judge Turkovich's final question related to whether or not if a warrant was issued for national security purposes, the data could be reviewed for other purposes.
GR1 (Government): I'll come to economic well-being in a moment.
GR1 (Government): Answer to the first part of that question is, yes, there is specific permission to do it, for example, in relation to serious crime.
GR1 (Government): There are a variety of different legislative provisions that allow that to be done, including, I think, a bespoke provision in the Counterterrorism Act, Section 19.5, but also the base provisions that
GR1 (Government): govern, the base legislative provisions that govern what the agencies can and cannot do and the purposes for which they can and cannot act.
GR1 (Government): But the answer to the first basic part of the question, can they do it for one, get it for one purpose, look at it for another, answer yes, but still limited to the statutory purposes which they're allowed to operate under.
GR1 (Government): The second part of that little question was to do with the potential breadth of economic well-being.
GR1 (Government): And the short answer to that is that in relation to that concept, you will have seen and no doubt recognized its derivation in paragraph 2 of Article 8.
GR1 (Government): But in relation to the domestic regime, so far as relevant, it is even more limited than that, because the concept of economic well-being for present purposes is economic well-being that are related to national security.
GR1 (Government): So there's that combination, that combined concept that is used.
GR1 (Government): And you get that from the code, 2016 code at paragraph 3.5.
GR1 (Government): And you also get it from RIPA itself in section, give me one moment, I'll get you the section.
GR1 (Government): I'll get you the section, but it's in there.
GR1 (Government): We'll have to make sure you've got the right version of RIPA because it was the subject of an amendment to make exactly that link so that the concept was composite.
GR1 (Government): It's in section 5.3 of the primary legislation itself.
GR1 (Government): The president then asked a series of questions.
GR1 (Government): The first one was related to admissibility, and I don't want to go back on any answers I've given in relation to that.
GR1 (Government): The second one related to the new legislative framework.
GR1 (Government): I mentioned it in my submission, as you recall, the 2016 Act and the relevance of that for the purpose of these proceedings.
GR1 (Government): My submission is that that new legislative framework is not relevant for the purpose of your consideration.
GR1 (Government): To some extent, it's always jolly tempting, and my friend Ms. Rose was unable to resist the temptation,
GR1 (Government): to say, well, if you can do it that way in a later piece of legislation, that must demonstrate that you could have done it that way earlier.
GR1 (Government): But the answer to that, it might be thought, if that is truly the relevance, reliance that is placed upon it, is careful, careful, because her submission was also that the world has changed.
GR1 (Government): And it is entirely appropriate in a world which changes as rapidly in terms of the technological advances as R1 does, for Parliament to have a review of the subject matter more generally, to devise a set of different and bespoke rules.
GR1 (Government): That does not lead, and couldn't possibly lead, in a context as complex as this, to, as it were, the binary conclusion that because you now do it that way, it must have been deficient beforehand.
GR1 (Government): The critical question, I respectfully submit, which doesn't turn on the nature or detailed provisions of that new Act, is whether or not the safeguards that my learned friend sought to identify as being, as having been forever necessary in order to comply with Article 8, are truly such.
GR1 (Government): Are they really necessary for the purpose of ensuring adequate safeguarding?
GR1 (Government): In other words, the ones that were not in the old regime are under RIPA and following, and the code, and all the below-the-waterline arrangements, and all of that.
GR1 (Government): And if, and to the extent that she was saying that others were, like ex post facto notification, would that cause a drama?
GR1 (Government): Would that cut across the paradigm need, as we submit it to be, for the agencies to conduct their work to seek to protect the public against an ever-increasing national security and terrorist threat?
GR1 (Government): So that's the question.
GR1 (Government): So one can see why reference is made to it, but we respectfully submit that it would be almost impossible for this court to try to get, as it were, that sort of comparative exercise going in a legitimate and useful way.
GR1 (Government): I fully accept that sometimes that places the government in a jolly difficult position.
GR1 (Government): If it's a single, short, little issue, and you've changed it, and there's no reason why you couldn't have done it before.
GR1 (Government): When you're dealing with something this big, my respectful submission is that it's irrelevant.
GR1 (Government): So that is that.
GR1 (Government): Then in relation to intelligence sharing and the chapter 12 guidance, the first of the sub-questions, I think in relation to that from the president, were whether or not there were rules or guidance on unsolicited material.
GR1 (Government): And so far as that is concerned, again, my first answer is to urge a little bit of caution, because we are dealing here with material which is in the nature of intercept material from the foreign government.
GR1 (Government): And it might be thought to be implausible and extraordinarily rare, if it ever occurred, for such material to be provided on any basis which was not solicited, or at least the subject of an initial request from the foreign liaison partner saying, are you interested in this?
GR1 (Government): So we are cautious about seeking to get into, and we haven't addressed in any great detail in our observations, the sorts of rules and guidelines that might apply in that different context, if ever unsolicited material of a more general kind were to be provided.
GR1 (Government): I think the base answer, if one goes there, just so that it doesn't sound as though we have no answer, the base answer, I suspect, would very much focus on the constraints that exist in the base domestic legislation governing the activities of these agencies.
GR1 (Government): You know that the Intelligence Services Act of 1994 exists.
GR1 (Government): You know that the Security Service Act of 1998, or whenever it was, exists.
GR1 (Government): And those constrain both the obtaining and the disclosure of material, save for limited purposes and save unless necessary and proportionate.
GR1 (Government): So those base statutory safeguards are already built into the legislative regime.
GR1 (Government): Beyond that, in relation to pure unsolicited material, I'm afraid I'm not able to assist without more.
GR1 (Government): But it may well be that there are other provisions that I would wish to refer to where I want to get into that area.
GR1 (Government): But caution, caution, we respectfully urge in relation to that.
GR1 (Government): Then the final question was what safeguards there were, or were there safeguards only in relation to intercepted material, and what safeguards there were in relation to other material.
GR1 (Government): Again, I think the same answer, I would give the same answer.
GR1 (Government): Not really this case, but if and to the extent necessary, the base governing pieces of legislation govern.
GR1 (Government): That, I hope, I'm sorry, it's been a bit of a whistle stop tour.
GR1 (Government): But there have been a large number of questions.
GR1 (Government): My only friend was out sipping her coffee with her feet on the table.
GR1 (Government): But can I very briefly make a couple of points in relation to reply?
GR1 (Government): Firstly, my only friend, Ms. Rose,