BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
and 335 below) and was in any event “in accordance with the law”. With
regard to the first and second requirements, it considered that the reference
to “national security” was sufficiently clear (citing Esbester v. the United
Kingdom (dec.), no. 18601/91, 2 April 1993 and Kennedy v. the United
Kingdom, no. 26839/05, 18 May 2010); the absence of targeting at the
interception stage was acceptable and inevitable, as it had been in Weber; on
their face, the provisions of paragraph 5.2 of the IC Code, together with
paragraphs 2.4, 2.5, 5.3, 5.4, 5.5 and 5.6 (see paragraph 96 below), were
satisfactory; there was no call for search words to be included in an
application for a warrant or in the warrant itself, as this would unnecessarily
undermine and limit the operation of the warrant and might in any event be
entirely unrealistic; and there was no requirement for the warrant to be
judicially authorised.
50. In considering the third, fourth, fifth and sixth of the Weber criteria,
the IPT had regard to the safeguards in sections 15 and 16 of RIPA, the
IC Code, and the “below the waterline” arrangements. It did not consider it
necessary that the precise details of all the safeguards should be published
or contained in either statute or code of practice. Particularly in the field of
national security, undisclosed administrative arrangements, which by
definition could be changed by the executive without reference to
Parliament, could be taken into account, provided that what was disclosed
indicated the scope of the discretion and the manner of its exercise. This
was particularly so when, as was the case here, the IC Code referred to the
arrangements, and there was a system of oversight (being the IC
Commissioner, the IPT itself, and the ISC) which ensured that these
arrangements were kept under review. The IPT was satisfied that, as a result
of what it had heard at the closed hearing, there was no large databank of
communications data being built up and there were adequate arrangements
in respect of the duration of the retention of data and their destruction. As
with the PRISM issue, the IPT considered that the section 8(4)
arrangements were sufficiently signposted in statute, in the IC Code, in the
IC Commissioner’s reports and, now, in its own judgment.
51. As regards the fourth and final question, the IPT did not make any
finding as to whether there was in fact indirect discrimination on grounds of
national origin as a result of the different regimes applicable to individuals
located in the British Islands and those located outside, since it considered
that any indirect discrimination was sufficiently justified on the grounds that
it was harder to investigate terrorist and criminal threats from abroad. Given
that the purpose of accessing external communications was primarily to
obtain information relating to those abroad, the consequence of eliminating
the distinction would be the need to obtain a certificate under section 16(3)
of RIPA (which exceptionally allowed access to material concerning
persons within the British Islands intercepted under a section 8(4) warrant –
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