03/02/2020 Privacy International v Secretary of State for Foreign And Commonwealth Affairs & Ors (Rev 2) [2016] UKIPTrib 15_110-CH (17 October 2016) jurisprudence, by reference to Digital Rights Ireland v Minister for Communications, Marine and Natural Resources and Others [2015] QB 127 and the Advocate General's opinion in Tele2 Sverige AB v Post-Och Telestyrelsen and Others [C-203/15 and C-698/15], delivered on 19 July 2016, which we shall have more opportunity to consider when we deal with the adjourned EU law issues.  So far as ECHR jurisprudence is concerned, there have only been two  recent cases bearing on the position, R E v  United Kingdom [ 2016] 63 EHRR 2, which we considered in  Greennet at paragraphs 79-80, and Szabo & Vissy v Hungary  [Application 37128/14, 12 January 2016]. Szabo was a decision of the Fourth Section of the Court: there were no safeguards in place at all, and it is clear from paragraph 70 of the Judgment that it was not a case which was appropriate to lead to any new jurisprudence, because: "It is not warranted to embark on [such consideration] in the present case, since the Hungarian system of safeguards appears to fall short even of the previously existing principles." The decision of the Court, at paragraphs 88 and 89, was that the Hungarian legislation was not sufficiently precise, effective and comprehensive on surveillance and the Government had not proved the practical effectiveness of any supervision arrangements. On its face the section 7/E (3) power granted to the anti-terrorist organ was unlimited in the cases in which intelligence gathering might be used. Both R E and Szabo were applying the principles in Weber and Kennedy to the particular facts. 61. If there is to be any new jurisprudence, this Tribunal and indeed the UK Courts are not required to anticipate it, as is made clear by R (Ullah) v Special Adjudicator [2004] 2 AC 323, not least in that the Respondents have no right of appeal.  Insofar as there is some support for a requirement for judicial pre-authorisation, notwithstanding the view of this Tribunal in Liberty/Privacy at paragraph 116(vi), or  for  someone who has been the subject of interception to be notified when there has been a material error by the  Respondents (as proposed in clause 209 [Error Reporting] of the  Investigatory Powers Bill), it is not for this Tribunal  to lay down new requirements, and (see the  transcript at Day 2, page 109) it does not appear that Mr. de la Mare was submitting that we should do so. 62. Accordingly, by reference to our considered assessment of the ECHR jurisprudence, we can summarise in short terms what we conclude the proper approach is: (i) There must not be an unfettered discretion for executive action.  There must be controls on the arbitrariness of that action.  We must be satisfied that there exist adequate and effective guarantees against abuse. (ii)  The nature of the rules fettering such discretion and laying down safeguards must be clear and the ambit of them must be in the public domain so far as possible; there must be an adequate indication or signposting, so that the existence of interference with privacy may in general terms be foreseeable. (iii)  Foreseeability is only expected to a degree that is reasonable in the circumstances, being in particular the circumstances of national security, and the foreseeability requirement cannot mean that an individual should be enabled to foresee when the authorities are likely to resort to secret measures, so that he can adapt his conduct accordingly. (iv)  It is not necessary for the detailed procedures and conditions which are to be observed to be incorporated in rules of substantive law.  (v)  It is permissible for the Tribunal to consider rules, requirements or arrangements which are 'below the waterline' i.e. which are not publicly accessible, provided that what is disclosed sufficiently indicates the scope of the discretion and the manner of its exercise.  (vi)  The degree and effectiveness of the supervision or oversight of the executive by independent Commissioners is of great importance, and can, for example in such a case as Kennedy, be a decisive factor.  As we concluded at paragraph 125 of Liberty/Privacy, there must be: "adequate arrangements in place to ensure compliance with the statutory framework and the Convention and to give the individual adequate protection against arbitrary interference, which are sufficiently accessible, bearing in mind www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKIPTrib/2016/15_110-CH.html&query=([2016])+AND+(UKIPTrib)+AND+(15_110-CH) 19/53