BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
power to circumvent domestic law and/or their obligations under the
Convention.
5. Where we respectfully depart from the majority is on the question of
what “effective guarantees” consist of.
6. The majority first refer to the fact that the requests were either based
on warrants already authorised by the Secretary of State or explicitly
approved by him or her (see paragraph 505 of the judgment). We would
argue, however, that the Secretary of State is not independent of the
executive and in this respect the regime governing the receipt of intelligence
from foreign intelligence services is beset by the same deficiency as the
bulk interception regime (see paragraph 377 of the judgment).
7. Secondly, the majority seem to assume that a national law which
provides that there should be no circumvention is of itself an effective
safeguard (see paragraph 506 of the judgment). We respectfully disagree.
As already pointed out, for example, in the separate opinion of
Judge Ranzoni in Breyer v. Germany (no. 50001/12, 30 January 2020),
domestic law only provides for the legal basis determining the lawfulness of
the interference: it does not, in addition and in itself, constitute an effective
safeguard to protect the individual from the application of national law by
domestic authorities in an arbitrary manner and from abuse of legal powers.
Such protection must go beyond legal rules, in particular when those rules
and legal powers are couched in broad terms.
8. In other words, a legal rule which prohibits circumvention or other
misuse cannot at the same time be a safeguard for that not to happen. An
effective safeguard supposes the availability of a mechanism capable of
ensuring the correct application of that very rule. However, a safeguard of
that kind is lacking with respect to requests to have data intercepted and
conveyed by foreign intelligence services. In our view, as in the bulk
interception regime, the first pillar within the “end-to-end” safeguards
should similarly apply. Consequently, any such request should be subject to
prior authorisation by an independent body capable of assessing whether it
is both necessary and proportionate to the aim pursued (see paragraphs 350
and 351 of the judgment), and of ensuring that this power is not used to
circumvent domestic law and/or the State’s obligations under the
Convention.
9. For these reasons we have voted against the finding of no violation of
Article 8 of the Convention in respect of the receipt of intelligence from
foreign intelligence services.
10. Since the majority conclude that the intelligence sharing regime does
not violate Article 10 of the Convention, on the basis of the same reasons
that led them to conclude that there has been no violation of Article 8 (see
paragraph 516 of the judgment), we are equally in disagreement with their
finding under Article 10.
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