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) possession of any document or other property."  Mr. de la Mare seeks to get round the problem that this exemption would only apply to "stored communication" by postulating that there could be two directions, or a two-stage direction, by the Secretary of State, for the communications to be first stored and then intercepted.  But this would plainly be an impermissible evasion of the criminal offence. In any event it is agreed that s.94 has not been used for such purpose. 56. The Claimant in a written Note delivered after the hearing, which extended more widely than had been permitted by the Tribunal when we agreed that there could be a response to the Respondents' speaking note in relation to Issues 2 and 3, referred to other statutes which on their face give the Secretary of State a power to issue broadly worded directions in the interests of national security.  We do not consider that any of them assist us in relation to the construction of the context and history of s.94, with which we have already dealt, and which was the subject of careful argument by both parties.  The Note also referred to a Zimbabwean case, which appears to address the alleged untrammelled discretion of the President of Zimbabwe; if relevant at all it would, in our judgment, be only material in the context of what we in any event have to consider, namely the applicability of the ECHR, which is the bulwark which the UK Courts adopt to restrain arbitrary conduct by the executive, and which will be the subject of our consideration in Issues 2 and 3.   57. For the reasons given, we are satisfied that the relevant Secretary of State pursuant to s.94 was and is entitled to issue directions to telecommunications and internet service providers to supply communications data to MI5 and GCHQ.  It is clear, notwithstanding Mr. de la Mare's reference to passages in the 1999 White Paper, or in Hansard, that neither RIPA nor DRIPA constituted a 'comprehensive code', as he submits, such as to exclude, override or repeal the operation of s.94, which was preserved by s.80 of RIPA.  In any event, subject to Issues 2 and 3 below:(i) The law is clear, and the directions may be given if necessary and proportionate, so as to facilitate access by the SIAs to communications data supplied by the PECNs. (ii) As in Snelling, there are two lawful routes for the SIAs to obtain communications data in the interests of protecting national security.  The continued existence of the directions under s.94, and the Respondents' contentions by reference to s.45 of the 1984 Act, to s.80 of RIPA, to the Communications Act 2003 and to s.1 of DRIPA, do not constitute a series of "trapdoors", such as Mr. de la Mare submitted. Rather, as we have found, they constitute the correct legal analysis. 58. Consequently we resolve Issue 1 in favour of the Respondents: it is lawful at domestic law to use s 94 to obtain BCD. ISSUES 2 and 3 Article 8 59. As noted above, Issues 2 and 3 are framed by reference to the "in accordance with law" requirement in Article 8. That requirement is generally stated to comprise (a) that the measures under review should have a basis in domestic law, and (b) that the laws in question should be compatible with the rule of law, in being generally accessible, foreseeable and contain adequate safeguards against arbitrary use (Weber & Saravia v Germany [2008] 46 EHRR SE5, at paragraphs 84, 92 – 94). 60. The Tribunal has considered the impact of Article 8 on the SIAs, and the balance to be struck between national security and privacy, in a number of cases, in which we took fully into account the judgments of the ECtHR, the most material judgments being Weber and Kennedy v United Kingdom [2011] 52 EHRR 4.  We considered the jurisprudence and we set out our conclusions, in particular in Liberty/Privacy at paragraphs 37-39, 82-91, 116-122, 125 and 137, and again in Greennet, to the judgments in both of which cases we refer.  There has been some development in Luxembourg www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKIPTrib/2016/15_110-CH.html&query=([2016])+AND+(UKIPTrib)+AND+(15_110-CH) 18/53