BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
members could request access to GCHQ’s intercept material. He observed
that “access to GCHQ systems was tightly controlled and had to be justified
in accordance with the laws of the host country and handling instructions of
section 15/16 safeguards.” He further observed that before getting any
access to GCHQ’s intercept material , Five Eyes analysts had to complete
the same legalities training as GCHQ staff (see paragraph 180 above).
412. In light of the foregoing, the Court is satisfied that the
IC Commissioner provided independent and effective supervision of the
operation of the section 8(4) regime. In particular, he and his inspectors
were able to assess the necessity and proportionality of a significant number
of warrant applications and the subsequent choice of selectors, and to
investigate the procedures in place for the retention, storage and destruction
of intercepted communications and related communications data. They were
also able to make formal recommendations to the head of the public
authorities concerned and those authorities were required to report back,
within two months, on the progress they had made in implementing those
recommendations. Furthermore, the Government confirmed in their
submissions to the Grand Chamber that the IC Commissioner was also
briefed regularly by GCHQ about the basis on which bearers were selected
for interception (see paragraphs 136 and 290 above). The intelligence
services were required to keep records at each stage of the bulk interception
process and they were obliged to grant inspectors access to those records
(see paragraphs 6.27 and 6.28 of the IC Code at paragraph 96 above).
Finally, he also had oversight of the sharing of intercept material with
intelligence partners (see paragraph 180 above).
‒ 8. Ex post facto review
413. Ex post facto review was provided by the IPT which in the present
case was presided over at all relevant times by a High Court Judge. The
Chamber found – and the applicants have not disputed – that the IPT
provides an effective remedy for applicants complaining of both specific
incidences of surveillance and the general Convention compliance of
surveillance regimes (see paragraph 265 of the Chamber judgment). In this
regard, the Chamber found it significant that the IPT had extensive
jurisdiction to examine any complaint of unlawful interception which was
not dependent on notification of the interception to its subject (see
paragraph 122 above). Consequently, any person who believed that he or
she had been subject to secret surveillance could make an application to it.
Its members had to have held high judicial office or be a qualified lawyer of
at least ten years’ standing (see paragraph 123 above). Those involved in the
authorisation and execution of an intercept warrant were required to disclose
to it all the documents it might require, including “below the waterline”
documents which could not be made public for reasons of national security
(see paragraph 125 above). Furthermore, it had discretion to hold oral
124