BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
Farr, the Director-General of the Office for Security and Counter Terrorism
(“OSCT”) at the Home Office, which explained that the statutory
framework set out in those Acts was underpinned by detailed internal
guidance, including arrangements for securing that the services only
obtained the information necessary for the proper discharge of their
functions. He further indicated that staff received mandatory training on the
legal and policy framework in which they operated, including clear
instructions on the need for strict adherence to the law and internal
guidance. Finally, he stated that the full details of the arrangements were
confidential since they could not be published safely without undermining
the interests of national security.
41. The IPT acknowledged that as the arrangements were not made
known to the public, even in summary form, they were not accessible.
However, the IPT considered it significant that the arrangements were
subject to oversight and investigation by the Intelligence and Security
Committee of Parliament (“the ISC”) and the independent Interception of
Communications Commissioner (“the IC Commissioner”). Furthermore, it
itself was in a position to provide oversight, having access to all secret
information, and being able to adjourn into closed hearing to assess whether
the arrangements referred to by Mr Farr existed and were capable of giving
the individual protection against arbitrary interference.
42. Having considered the “below the waterline” arrangements, the IPT
was satisfied that the 9 October disclosure (as subsequently amended – see
paragraphs 33 and 36 above) provided a clear and accurate summary of that
part of the evidence given in the closed hearing, and that the rest of the
evidence given in closed hearing was too sensitive for disclosure without
risk to national security or to the “neither confirm nor deny” principle. It
was further satisfied that the preconditions for requesting information from
the Government of the United States of America were clear: there had to
exist either a section 8(1) warrant, or a section 8(4) warrant within whose
ambit the proposed target’s communications fell, together, if the individual
was known to be in the British Islands, with a section 16(3) modification
(see paragraph 86 below). Any request pursuant to PRISM or Upstream in
respect of intercept or communications data was therefore subject to the
RIPA regime, unless it fell within the wholly exceptional scenario outlined
in 1(b) of the material disclosed after the first hearing. However, a 1(b)
request had never occurred.
43. The IPT nevertheless identified the following “matter of concern”:
“Although it is the case that any request for, or receipt of, intercept or
communications data pursuant to Prism and/or Upstream is ordinarily subject to the
same safeguards as in a case where intercept or communication data are obtained
directly by the Respondents, if there were a 1(b) request, albeit that such request must
go to the Secretary of State, and that any material so obtained must be dealt with
pursuant to RIPA, there is the possibility that the s.16 protection might not apply. As
already indicated, no 1(b) request has in fact ever occurred, and there has thus been no
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