BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
B. Article 10 of the Convention
515. The applicants in the third of the joined cases also complained that
the intelligence sharing regime had breached their rights under Article 10 of
the Convention. In so far as that complaint related to their activities as
NGOs, the Chamber declared it inadmissible for non-exhaustion of
domestic remedies as the applicants had raised it too late in the domestic
proceedings for it to be considered (see paragraph 473 of the Chamber
judgment). This aspect of the complaint is therefore outwith the scope of the
Grand Chamber’s examination.
516. The applicants in the third of the joined cases also complained
more generally about the Article 10 compliance of the intelligence sharing
regime. Although this argument was raised before the IPT in good time, the
Court would agree with the Chamber that it gives rise to no separate issue
over and above that arising out of Article 8 of the Convention (see
paragraph 474 of the Chamber judgment). It therefore considers that there
has also been no violation of Article 10 of the Convention.
IV. ACQUISITION
OF
COMMUNICATIONS
COMMUNICATIONS SERVICE PROVIDERS
DATA
FROM
A. Article 8 of the Convention
517. The applicants in the second of the joined cases complained that the
regime for the acquisition of communications data under Chapter II of RIPA
was incompatible with their rights under Article 8 of the Convention.
1. The Chamber judgment
518. At the date of the Chamber’s examination of the case the
Government of the United Kingdom was in the process of replacing the
existing legal framework for conducting secret surveillance with the new
IPA. The provisions in the new legislation governing the retention of
communications data by CSPs were subject to a domestic legal challenge by
Liberty. In the course of those proceedings, the Government conceded that
the relevant provision was inconsistent with the requirements of EU law.
Consequently, the High Court found Part 4 to be incompatible with
fundamental rights in EU law since, in the area of criminal justice, access to
retained data was not limited to the purpose of combating “serious crime”;
nor was it subject to prior review by a court or an independent
administrative body (see paragraph 190 above).
519. In view of both the primacy of EU law over United Kingdom law,
and the Government’s concession in the domestic proceedings that the
provisions of IPA governing the retention of communications data by CSPs
was incompatible with EU law, the Chamber considered it “clear” that
153