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) telecommunication services provided for any other person by means of that system, shall be guilty of an offence.   (2).  Subsection (1) above does not apply to --   (a) any disclosure which is made for the prevention or detection of crime or for the purposes of any criminal proceedings;   (b) any disclosure of matter falling within paragraph (a) of that subsection which is made  obedience to a warrant issued by the Secretary of State under section 2 of the Interception of Communications Act 1985 ... or   (c) any disclosure of matter falling within paragraph (b) of that subsection which is made in the interests of national security or in pursuance of the order of a court."  The new s.45 (3) introduced the provision for a PII certificate to be conclusive evidence of the interests of national security. 37. On a natural reading, s.45, as amended by the 1985 Act, preserved the power of the Secretary of State and the duty of the telecommunications provider under s.94.  Mr. de la Mare submits that the savings in s.45 (2) (c) applied only to voluntary disclosure.  We disagree.  As a matter of ordinary language, it applied both to voluntary disclosure and to disclosure in fulfilment of a duty under s.94.  As in the case of s.45 as originally worded, there is no reason to construe the amended section restrictively.  Therefore, until RIPA came into force, the Secretary of State was entitled to give directions to telecommunications providers, and by then internet service providers, to provide communications data as then existing to MI5 and GCHQ.  By then communications data would have permitted the location of the maker and recipient of a mobile telephone call to be identified. 38. Prior to RIPA, the statutory powers of MI5 and GCHQ, in relation to communications data, were contained in the two Acts which acknowledged their existence.  In s.1(2) of SSA 1989: "The function of the service shall be the protection of national security and, in particular, its protection against threats from espionage, terrorism and sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or undermine Parliamentary democracy by political, industrial or violent means."  Its general functions were circumscribed by duties placed on the Director General by s.2 (2).  "The Director General shall be responsible for the efficiency of the service and it shall be his duty to ensure -(a) that there are arrangements for securing that no information is obtained by the service except so far as necessary for the proper discharge of its functions or disclosed by it, except so far as necessary for that purpose…"  In the case of GCHQ, its functions are set out in s.3 (1) of the ISA 1994:  "… its functions shall be -(a) to monitor or interfere with electromagnetic, acoustic and other emissions and any equipment producing such emissions and to obtain and provide information derived from or related to such emissions or equipment and from encrypted material…"  Its functions are circumscribed by the responsibility of the Director of GCHQ, defined in the same terms as his counterpart in MI5 in s.4 (2).  These powers provide ample power to cover the storage and examination of communications data obtained under s.94. 39. S.82 (1) of and Schedule 4 to RIPA amended s.45 (2), but did not amend s.45 (1) of the 1984 Act (so that the exception there provided for "in the course of ... duty" remained): "(2) Subsection (1) above does not apply to any disclosure made -- www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKIPTrib/2016/15_110-CH.html&query=([2016])+AND+(UKIPTrib)+AND+(15_110-CH) 12/53