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) 31. §2.4 sets out the requirements contained in section 94 itself that the Secretary of State must be satisfied that a Section 94 direction is necessary and proportionate: "2.4 Any section 94 Directions under which this communications data is acquired requires the relevant Secretary of State to be satisfied that acquisition is necessary in the interests of national security or international relations and that the level of interference with privacy involved in doing so is proportionate to what it seeks to achieve." 32. The requirement that acquisition, use, retention and disclosure of BCD have "clear justification, accompanied by detailed and comprehensive safeguards against misuse" and be "subject to rigorous oversight" is made clear (§4.0.1). The Section 94 Handling Arrangements are intended to provide such safeguards (§4.0.2). 33. The Section 94 Handling Arrangements set out provisions in respect of each of the stages of the lifecycle of BCD. Acquisition 34. §§4.1.1-4.1.2 sets out the key considerations which must be presented to the Secretary of State when he/she considers whether to make a Section 94 Direction. These include the family considerations of necessity and proportionality, including whether a less intrusive method of obtaining the information is available, and the level of collateral intrusion involved: "4.1.1 Where the head of the relevant Intelligence Service has decided to request a Section 94 Direction from the relevant Secretary of State, it is essential that a submission is then presented to the Secretary of State by the Home Office/Foreign Office in order to enable them to consider: - whether acquisition and retention of the BCD to be authorised by the Direction is necessary in the interests of national security or international relations; - whether the acquisition and retention of the BCD would be proportionate to what is sought to be achieved; - whether there is a less intrusive method of obtaining the BCD or achieving the national security objective; - the level of collateral intrusion caused by acquiring and utilising the requested BCD. 4.1.2 The submission must also outline any national security or international relations argument as to why the Secretary of State cannot lay the Direction before each House of Parliament in accordance with 94(4) of the Act." 35. Clear guidance is provided to staff on the considerations of necessity and proportionality: "When will acquisition be "necessary"? 4.1.3 What is necessary in a particular case is ultimately a question of fact and judgement, taking all the relevant circumstances into account. In order to meet the 'necessity' requirement in relation to acquisition and retention, before presenting the submission referred to in paragraph 4.1.1 above, staff in the relevant Intelligence Service must consider why obtaining the BCD in question is 'really needed' for the purpose of discharging a statutory function of that Intelligence Service. In practice this means identifying the intelligence aim which is likely to be met and giving careful consideration as to how the data could be used to support achievement of that aim. The obtaining must also be "proportionate" 4.1.4 The obtaining and retention of the bulk communications dataset must also be proportionate to the purpose in question. In order to meet the 'proportionality' requirement, before presenting the submission referred to in paragraph 4.1.1 above, staff in the relevant Intelligence Service must balance (a) the level of interference with the right to privacy of individuals whose communications data is being www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKIPTrib/2016/15_110-CH.html&query=([2016])+AND+(UKIPTrib)+AND+(15_110-CH) 34/53