Grand Chamber confirms UK secret surveillance regime unlawful in Big Brother Watch v United Kingdom

26/05/21

The Grand Chamber of the European Court of Human Rights in Big Brother Watch, 10 Human Rights NGOs and Bureau of Investigative Journalism v United Kingdom (App Nos 58170/13, 62322/14 and 24960/15) has held that the former UK bulk interception regime in the Regulation of Investigatory Powers Act 2000 (“RIPA”) was incompatible with Articles 8 and 10 of the European Convention on Human Rights (“ECHR”).

The decision marks a significant development by the Grand Chamber of the safeguards that Council of Europe states’ secret surveillance regimes must contain to comply with the Convention to address bulk surveillance. It has implications for the compatibility of the United Kingdom’s current surveillance legislation, the Investigatory Powers Act 2016, with the ECHR.

Three applications from the UK were heard together. In the claim by the 10 human rights NGOs (including Amnesty, Liberty and Privacy International), the applicants brought claims in the Investigatory Powers Tribunal (“IPT”) arising out of disclosures made by Edward Snowden. The challenges raised the compatibility of the bulk interception regime in s 8(4) of RIPA and the UK’s intelligence sharing regime with Article 8 ECHR. The IPT dismissed those complaints, and applications were made the ECtHR in 2015. In the applications by Big Brother Watch and the Bureau of Investigative Journalism, the applicants instituted claims directly with the European Court of Human Rights in 2013 and 2014 on the basis that they had no effective domestic remedy.

A Chamber on 18 September 2018 upheld the complaints against the s 8(4) bulk interception regime in certain respects but dismissed the complaint in relation to the intelligence sharing regime. The case was then referred to the Grand Chamber at the request of the Applicants.

In relation to the relevant principles under Article 8, the key findings in the Grand Chamber’s judgment are as follows:

• It is in principle within a state’s margin of discretion to operate a bulk surveillance regime: at [340], [347]. However, to be “in accordance with the law” it must have detailed and effective safeguards to ensure that any interference with Convention rights (which necessarily occurs in secret) is necessary and proportionate.
• As the Applicants had submitted, the safeguards that the Court had developed in its previous case law had to be “adapted to reflect the specific features of a bulk interception regime”: at [347]. The Court held that “the process must be subject to ‘end-to-end safeguards’, meaning that, at the domestic level, an assessment should be made at each stage of the process of the necessity and proportionality of the measures being taken; that bulk interception should be subject to independent authorisation at the outset, when the object and scope of the operation are being defined; and that the operation should be subject to supervision and independent ex post facto review”: at [350]. It is necessary “to take account of a wider range of criteria than the six Weber safeguards” (at [361]), a reference to the Court’s previous decision in Weber and Saravia v. Germany (App No 54934/00, ECHR 2006-XI), on which the IPT had relied.
• Bulk surveillance must be authorised by a body that is independent of the executive, and that body must be informed of the purpose of interception, the communication routes to be intercepted and the types or categories of “selectors” (search terms) to be used on the intercepted data: at [351]–[352], [354].
• The use of every selector by an intelligence agency must be subject to prior independent authorisation to necessity and proportionality: at [355].
• Eight identified aspects of a secret surveillance regime must be defined sufficiently clearly and in sufficient detail to ensure that in practice its operation limits interferences with privacy to those that are necessary and proportionate: at [361].
• Interception of “communications data” (that is, information about communications, such as the sender, recipient and date, as distinct from the content) is not necessarily less intrusive than interception of content and regimes for this must comply with the same safeguards: at [364].

Applying the principles it had developed, the Court unanimously concluded that the RIPA s 8(4) regime was not “in accordance with the law” under Article 8, as there was no independent authorisation of surveillance (the Secretary of State authorised surveillance) nor prior independent authorisation of the use of selectors: at [425].

Under Article 10, the Court held that a secret surveillance regime must require a judge or independent body to decide whether an “overriding requirement in the public interest” justifies searches using selectors that are connected with a journalist or that will probably identify confidential journalistic material, such as sources: at [448]. The system must also require independent determination of whether there is an overriding requirement in the public interest for continued use where it becomes apparent during examination that material is confidential journalistic material: at [450]. As the RIPA s 8(4) regime lacked such features, the Court held unanimously that it was also incompatible with Article 10: at [457]–[458].

The Grand Chamber (12:5) dismissed the complaint in relation to the intelligence sharing regime: at [513]–[514]. It unanimously upheld the findings of the Chamber that the former communications data retention regime under RIPA was not “in accordance with the law” under Article 8 or “provided by law” under Article 10 on the basis that it had been incompatible with EU law: at [522], [528].

The judgment is here.

A recording of the oral hearing before the Grand Chamber in July 2019 is here.