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:
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 .
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 . 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 . As the RIPA s 8(4) regime lacked such features, the Court held unanimously that it was also incompatible with Article 10: at –.
The Grand Chamber (12:5) dismissed the complaint in relation to the intelligence sharing regime: at –. 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 , .
The judgment is here.
A recording of the oral hearing before the Grand Chamber in July 2019 is here.
David Heaton acted pro bono for the 10 human rights NGOs before the Grand Chamber, including at the hearing in July 2019.