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) (2A) The Secretary of State shall not give a direction under subsection (1) or (2) unless he believes that the conduct required by the direction is proportionate to what is sought to be achieved by that conduct. (3) A person to whom this section applies shall give effect to any direction given to him by the Secretary of State under this section notwithstanding any other duty imposed on him by or under Part 1 or Chapter 1 of Part 2 of the Communications Act 2003 and, in the case of a direction to a provider of a public electronic communications network, notwithstanding that it relates to him in a capacity other than as the provider of such a network. (4) The Secretary of State shall lay before each House of Parliament a copy of every direction given under this section unless he is of opinion that disclosure of the direction is against the interests of national security or relations with the government of a country or territory outside the United Kingdom, or the commercial interests of any person. (5) A person shall not disclose, or be required by virtue of any enactment or otherwise to disclose, anything done by virtue of this section if the Secretary of State has notified him that the Secretary of State is of the opinion that disclosure of that thing is against the interests of national security or relations with the government of a country or territory outside the United Kingdom, or the commercial interests of some other person. (6) The Secretary of State may, with the approval of the Treasury, make grants to providers of public electronic communications networks for the purposes of defraying or contributing towards any losses they may sustain by reason of compliance with the directions given under this section. (7) There shall be paid out of money provided by Parliament any sums required by the Secretary of State for making grants under this section. (8) This section applies to OFCOM and to providers of public electronic communications networks." 17. The Secretary of State's power to give directions under section 94, whether of a general character (s.94 (1)) or requiring specific action (s.94 (2)) is limited to directions which appear to the Secretary of State to be "necessary" in the interests of national security or international relations (s.94 (1)) and which the Secretary of State believes to be "proportionate" to what is sought to be achieved. The Secretary of State must also first consult with the person to whom the direction is to be given (s.94(1) and (2)). The HRA 18. Article 8 of the ECHR is a "Convention right" for the purposes of the HRA: s. 1(1) of the HRA. Art. 8, set out in Sch. 1 to the HRA, provides as follows: "(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevent of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others." 19. By s. 6(1): "It is unlawful for a public authority to act in a way which is incompatible with a Convention right." 20. Each of the Intelligence Services is a public authority for this purpose. Thus, when undertaking any activity that interferes with Art. 8 rights, the Respondents must (among other things) act proportionately and in accordance with law. In terms of bulk activity relating to and section 94 of the Telecommunications Act 1984, the HRA applies at every stage of the process i.e. authorisation/acquisition, use/access, disclosure, retention and deletion. 21. S. 7(1) of the HRA provides in relevant part: www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKIPTrib/2016/15_110-CH.html&query=([2016])+AND+(UKIPTrib)+AND+(15_110-CH) 31/53