BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
themselves, this “is in practice inevitable”129. That having been said, it
should be noted that, in relation to bulk interception of related
communications data, there was not even an external communications
restriction.
43. Even if bulk interception were meant to be a foreign intelligence
gathering power130, rather than a tool for the prevention, detection and
investigation of crime131, this did not justify the lack of regulation or the
breadth of the powers of the intercepting authorities. In any event, as a
result of the development of digital communications, the external
communications safeguard no longer acts as a meaningful constraint132, if it
ever did. And my point is that it never did, for the following reasons.
44. The Secretary of State provided no independent authorisation for a
section 8(4) warrant133, his interception warrant being a blank cheque,
which did not name or describe the intercept subject, did not impose an
express limit on the number of communications which could be intercepted,
and did not specify bearers or selectors. No specific provision governed the
case where there was a request for the communications of a journalist, or a
medical doctor, or a priest, or where such collateral intrusion was likely,
other than the innocuous paragraphs 4.28 to 4.31 of the IC Code134. The
choice of bearers and the application of selectors, including strong selectors,
to external communications was dependent on the final say of the
intercepting authority135. In plain words, the intelligence community was in
full control of the authorisation procedure, keeping the Secretary of State at
bay from essential information, with the consequence that he or she could
not deliver a proper proportionality and necessity analysis, but just
whitewashed politically the operation of the system136.
Respondent Government’s Observations before the Grand Chamber of 2 May 2019,
p. 37.
130 Under paragraph 6.2 of the IC Code, “section 8(4) interception is an intelligence
gathering capability”.
131 Section 81 of RIPA defines prevention and detection of crime, but not investigation.
132 The Venice Commission report, cited above, p. 11, makes the same point.
133 The UK Parliament acknowledged, in its 2015 ISC report, the lack of independence of
the Secretary of State, prior to the change of creation of the IPA in 2016.
134 Provisions applicable to section 8(4) material which is selected for examination and
which constitutes confidential information (paragraph 4.32 of the IC Code). The respondent
Government now acknowledge “that requests for communications data intended to identify
journalistic sources should be subject to judicial approval” (UK response to Council of
Europe Human Rights Commissioner – Memorandum on surveillance and oversight
mechanisms in the United Kingdom, p. 24).
135 Paragraphs 146-147 of this judgment.
136 This was also the conclusion of the 2015 ISC report (see paragraph 147 of this
judgment). It comes as no surprise then that in 2016, 3,007 interception warrants were
issued and only five requests were refused by the Secretary of State (paragraph 170 of this
judgment). The figures say it all: the Secretary of State was there just to rubber-stamp the
requests.
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193