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) Secretary of State, not by designated persons.   53. Mr. Eadie mounted a sustained argument to the effect that Mr. de la Mare's submission could only succeed if he could show that RIPA had repealed or circumscribed the s.94 power to give directions.  He relied on settled case law - primarily principles enunciated by AL Smith J in Kutner v Phillips [1981] 2 QB 267 at 271 and by Laws LJ in O'Byrne v Secretary of State for the Environment, Transport and the Regions [2001] EWCA [2002] HLR 30 Civ 499 at para.68 - that there is a strong presumption against implied repeal (see also Waller LJ in Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited [2001] QB 388), and that the later enactment must be so inconsistent with or repugnant to the provisions of the earlier Act that they cannot stand together, or that there must be an insuperable logical contradiction between the two.  We agree that neither situation applies here; but do not consider it necessary to undertake an elaborate analysis, because s.80 (a) and (c) of RIPA expressly preserves the pre-existing power to obtain communications data, ruling out any question of implied repeal.   54. There was a further contention by the Respondents that is not necessary for our conclusion, namely that in any event ss.21 and 22 of RIPA, the sections said to constitute a 'comprehensive code' for the acquisition or obtaining of communications data, and which apply where (s.22) a designated person believes it is necessary to obtain communications data, do not apply at all where the communications data have already been obtained by virtue of a s.94 direction, and the Secretary of State has (after the necessary consultation) considered it necessary (and proportionate) to obtain the data.  It is certainly right that when the use of s.94 was discussed in 2004 with the then I C C, Sir Swinton Thomas, as disclosed in documents in these proceedings by the Respondents, access to the communications data, already acquired by virtue of the s.94 direction, was discussed in the context of 'obtaining' the information. It is also the case that the procedures for access operated by MI5 (but not by GCHQ) for accessing the communications data obtained under s.94 are analogous to those adopted for accessing data obtained by intercept, (although the terms of the Acquisition and Disclosure of Communications Data Code of Practice of March 2015 in s.1 appear clearly to contrast acquisition of communications data under RIPA with data obtained under other powers).  However, given our conclusion that Part I, Chapter II of RIPA is not a comprehensive code excluding the operation of s.94, there is no need to resolve this issue.  The result is as discussed by Patten LJ in Snelling v Burstow Parish Council [2014] 1 WLR 2388, and as Aikens LJ in RK (Nepal) v SSHD [2009] EWCA Civ 359 postulated, namely that the two routes are parallel and alternative. 55. Mr. de la Mare submitted that Mr. Eadie's construction of s.94 was impossible or implausible, because it depended upon his limiting s.94 to giving directions for delivery of communications data, whereas the section could be construed as permitting the use of s.94 to obtain interception of the contents of communications, which Mr Eadie was abjuring.  We have already explained why, upon construction of the context of s.94, taken together with s.45, its purpose was to enable the obtaining of billing information, or what is now called communications data. In addition, it is plain that, as set out in paragraph 198 of the Respondents' Amended Open Response of 19 February 2016, "directions under s.94 can lawfully be made to require [PECNs] to facilitate conduct that has already been made lawful by authorisations under [other statutory] provisions". However we are satisfied that a direction under s.94 could not be used, and in any event was not intended, for the purpose of itself authorising or directing interception of contents.  At the time of the passage of the 1984 Act the prerogative was used for such interception, and that was then replaced by the provisions of s.2 of the 1985 Act (see paragraph 35 above).  S. 1 of RIPA made interception of content an offence, save insofar as otherwise pursuant to lawful authority, and the exemption was provided by s.1(5) of RIPA, which read as follows:"(5) Conduct has lawful authority for the purposes of this section if and only if [apart from the provisions of RIPA] …; (c) it is in exercise, in relation to any stored communication, of any statutory power that is exercised (apart from this section) for the purpose of obtaining information or of taking www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKIPTrib/2016/15_110-CH.html&query=([2016])+AND+(UKIPTrib)+AND+(15_110-CH) 17/53