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) b) Issue 2: Is the section 94 TA regime in accordance with the law? This issue is to be considered in three time periods. First, prior to the avowal of the use of section 94 to obtain BCD [4th November 2015].  Secondly, from avowal to the date of hearing.  Thirdly, as at the date of hearing. c) Issue 3: Is the BPD regime in accordance with the law? This issue is to be considered in four time periods. First, prior to the avowal of the holding of BPDs [March 2015].  Secondly, from avowal to the publication of the BPD handling arrangements. Thirdly, from publication to the date of the hearing.  Finally, as at the date of hearing. d) Issue 4: Are the section 94 regime and the BPD regime proportionate? There are also EU Law issues, which have been adjourned to a hearing in December. 17. These issues require some elucidation: (i) Although the first issue is confined to the legality of the use of the power under s. 94 to obtain communications data in bulk, the other issues are not so confined. The other issues extend not just to the obtaining of data, but also to the uses to which such data may be put by the SIAs. As argued by the Claimant, the claim concerns the arrangements for and safeguards attaching to the acquisition, use, retention, disclosure, storage and deletion of bulk data, whether obtained under s.94 or by other means. (ii) BPD may include communications data lawfully obtained by the SIAs (as referred to in paragraph 64 below), but may also include data lawfully obtained commercially or otherwise without the use of any statutory power to procure or compel the acquisition of bulk data. Agreed/Assumed Facts 18. The procedure which has been operated by this Tribunal in recent hearings has been that issues are agreed so as to facilitate a public hearing in open court, enabling full inter partes argument, based upon facts which are agreed or assumed for the purposes of that hearing.  In this case the Claimant served a schedule of 41 proposed agreed facts (and a small number of assumed facts), which the Respondents largely accepted, in almost every case with the rubric that their acceptance was subject to the full context provided in their pleadings and evidence. We were supplied with closed evidence by the Respondents (much of which we decided should be disclosed in open, redacted as necessary), but it played no part in our judgment. 19. The most material of the Agreed Facts are as follows (we do not repeat matters already specifically mentioned above):(a) BCD (i) GCHQ and MI5 collect and hold BCD, relying upon s.94 as the legal basis for doing so. MI6 does not collect or hold BCD. GCHQ also acquires related communications data pursuant to warrants issued pursuant to RIPA s.5 in respect of external communications under the terms of s.8(4). (ii) GCHQ requires any access to BCD to be justified on the same grounds and to the same standards as access to related communications data obtained pursuant to s.8(4) of RIPA. (iii) GCHQ treats BCD acquired under s.94 Directions in the same way as it treats related communications data obtained pursuant to s.8(4), storing data obtained under those statutory regimes within the same databases. (iv) MI5's procedures include a process under RIPA, Part 1, Chapter II for accessing its BCD database, which is not followed by GCHQ. www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKIPTrib/2016/15_110-CH.html&query=([2016])+AND+(UKIPTrib)+AND+(15_110-CH) 7/53