BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
(b) The parties’ submissions
475. The applicants submitted that the safeguards in place in respect of
the intelligence sharing regime were inadequate. In particular, they argued
that the problems which had led the Chamber to find a violation of Article 8
of the Convention in respect of the bulk interception regime (that is, the lack
of oversight of the use of selectors and the inadequate safeguards in respect
of related communications data) applied equally to the intelligence sharing
regime.
476. The Government, on the other hand, submitted that the intelligence
sharing regime had a clear basis in domestic law, being set down in statute
supplemented by Chapter 12 of the IC Code; and that law had been
accessible. With regard to foreseeability, the Government argued that
instead of applying a modified version of the six minimum safeguards, the
Chamber should instead have applied the more general test – commonly
applied in intelligence gathering cases which did not involve the
interception of communications – of whether the law indicated the scope of
any discretion and the manner of its exercise with sufficient clarity to give
the individual adequate protection against arbitrary interference. In any
event, the Government contended that the intelligence sharing regime
satisfied the six minimum safeguards. The IC Code clearly described the
nature of offences which could lead to intelligence being obtained; the
limits on the duration of such obtaining; the process for examining, using
and storing the intelligence obtained; and the circumstances in which the
intelligence was to be erased or destroyed.
477. Finally, in the Government’s view there was no good reason to
single out intercepted communications and related communications data
from other types of information that might in principle be obtained from a
foreign intelligence service, such as intelligence from covert human
intelligence sources, or covert audio/visual surveillance. Indeed, in many
cases the intelligence services might not even know whether
communications provided to them by a foreign intelligence service had been
obtained as a result of interception.
(c) The third parties’ submissions
(i) The Government of France
478. The French Government pointed out that intelligence sharing
between partner services – either on an ad hoc or regular basis – was vitally
important, especially in the fight against the increasingly transnational and
diffusive threats which States had to prevent, primarily by identifying
suspects before they acted. That fight justified the development of an
intelligence community, without which intelligence services, with their
limited ability to act overseas, would be unable to accomplish the task
assigned to them.
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