LIBERTY AND OTHERS v. THE UNITED KINGDOM JUDGMENT
17
available to permit an individual to satisfy him or herself that the
“arrangements” had been followed. The Tribunal did not have jurisdiction
to examine such compliance, and although the Commissioner was
authorised under section 8 to review the adequacy of the “arrangements” in
general, he had no power to review whether they had been met in an
individual case.
45. It was plain that the alleged interception of communications
constituted an interference with the applicants’ rights under Article 8 § 1.
Any such interception, to comply with Article 8 § 2, had to be “in
accordance with the law”, and thus have a basis in domestic law that was
adequately accessible and formulated with sufficient precision as to be
foreseeable. They contended that the United Kingdom legislation breached
the requirements of foreseeability. They submitted that it would not
compromise national security to describe the arrangements in place for
filtering and disseminating intercepted material, and that detailed
information about similar systems had been published by a number of other
democratic countries, such as the United States of America, Australia, New
Zealand, Canada and Germany. The deficiencies in the English system were
highlighted by the Court’s decision in Weber and Saravia v. Germany
(dec.), no. 54934/00, 29 June 2006, which noted that the German legislation
set out on its face detailed provisions regulating, inter alia, the way in
which individual communications were to be selected from the pool of
material derived from “strategic interception”; disclosure of selected
material amongst the various agencies of the German State and the use that
each could properly make of the material; and the retention or destruction of
the material. The authorities’ discretion was further regulated and
constrained by the public rulings of the Federal Constitutional Court on the
compatibility of the provisions with the Constitution. In contrast, in the
United Kingdom at the relevant time no provision was made on the face of
the statute for any part of the processes following the initial interception,
other than the duty on the Secretary of State to make unspecified
“arrangements”. The arrangements themselves were unpublished. There was
no legal material in the public domain indicating how the authorities’
powers to select, disclose, use or retain particular communications were
regulated. The authorities’ conduct was not “in accordance with the law”
because it was unsupported by any predictable legal basis satisfying the
accessibility principle.
46. In addition, the applicants denied that the interferences pursued a
legitimate aim or were proportionate to any such aim, since the 1985 Act
permitted interception of large classes of communications for any purpose,
and it was only subsequently that this material was sifted to determine
whether it fell within the scope of a section 3(2) warrant.