BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
Prime Minister to draw this error to his or her attention and, if so, to decide
to what extent it was possible to publish that error143. For example, he could
neither refer the case to the IPT, nor notify the victim of excessive
interception. In fact, the Commissioner even failed to identify that the
applicants Amnesty International and the South African Legal Resources
Centre had been subjected to unlawful surveillance!
48. The duration of interception and retention periods had no specific
maximum time-limit in the law, and the practice did not fill this gap144.
Section 8(4) warrants could be renewed ad aeternum145. Moreover,
retention periods differed between different intercepting authorities146 and
the “normal” maximum time-limit for retention under paragraph 7.9 of the
IC Code (i.e. two years) could be dispensed with by a senior official of the
intercepting authority itself. This is a telling sign of who ran the show in the
British bulk interception system147.
49. There was no notification obligation at the end of the interception
process148. Absent of such notification, the right of access to a court was
largely futile. That was the case in the United Kingdom149. The IPT acted
only upon a complaint by a person who believed that he or she had been
subjected to secret surveillance, which meant that the IPT was a purely
theoretical guarantee for all those intercept subjects who had no idea that
their communications had been intercepted150. The insufficiency of the IPT
oversight was compounded by the fact that it had no power to make a
declaration of incompatibility if it found primary legislation to be
incompatible with the ECHR, as it was not a “court” for the purposes of
section 4 of the Human Rights Act 1998; that its rulings were not subject to
As acknowledged by the respondent Government in the Grand Chamber hearing on
10 July 2019.
144 As described by the respondent Government (paragraph 403 of this judgment). It seems
that even the internal policies are not complied with (paragraph 59 of this judgment).
145 Paragraphs 6.22 to 6.24 of the IC Code.
146 Paragraph 176 of the judgment.
147 It is quite astonishing that the majority, in paragraph 405 of the judgment, only found it
“desirable” that the practice described by the respondent Government in the Grand
Chamber be enshrined in the law.
148 IPA introduced a requirement for the Commissioner to consider whether there has been
a serious error and it would be in the public interest to notify the individual, but this rule is
not before the Court in the present case. The IPA policy choice is a concession that the
previous system was insufficient, and it will be for another day to see if the IPA solution is
sufficient.
149 This is aggravated by the NCND (“neither confirm, nor deny”) policy of the
Government, which “prevents a person from ever knowing if he/she has been the target of
surveillance” and “shields surveillance decisions from effective scrutiny”, as the Council of
Europe Human Rights Commissioner concluded (Memorandum, cited above).
150 Thus the majority’s conclusion that the IPT is “a robust judicial remedy to anyone who
suspected that his or her communications had been intercepted” (§ 415) fails to identify the
patent shortcoming of the system: its virtual character for those who have no reason to
suspect that they have been subjected to secret surveillance.
143
195