and Others v. the United Kingdom, Judgment of 13 September 2018, no. 58170/13
and others, §§ 250, 379; regarding the Investigatory Powers Commissioner’s unlimited rights to information see Annual Report of the Investigatory Powers Commissioner
2017 of 31 January 2019, p. 41).
dd) Oversight can in principle be subject to strict secrecy rules. Secrecy can be accorded significant weight not only when it comes to the premises of oversight bodies
and their technical resources, but also when it comes to choosing their personnel. In
particular, secrecy can be ensured through the imposition of confidentiality requirements that are subject to effective sanctions.
296
(1) However, open and direct exchange between the oversight bodies must be guaranteed (cf. BVerfGE 133, 277 <370 para. 216>). The requirement of effective and
coherent oversight calls for such exchange given that these bodies, which are subject
to the same confidentiality requirements, are together responsible for oversight of the
same measures. Where structural problems become apparent in the context of oversight or differences with the Federal Intelligence Service arise that cannot be resolved otherwise, it must be possible to raise concerns with the head of the Federal
Intelligence Service and, if necessary, the head of the Federal Chancellery, which
exercises supervision; these must then take action where necessary.
297
(2) Yet the flow of information to the parliamentary sphere and thus also to the Parliamentary Oversight Body can in principle be limited on grounds of secrecy. The legislator may take into account that parliamentary oversight differs (see para. 300 below) from oversight that merely serves to ensure that the law is observed, and that
secrecy in the parliamentary and political sphere is subject to factual limits. Nonetheless, under Art. 45d GG, the Parliamentary Oversight Body must regularly be informed about oversight activities in a manner that maintains secrecy. In addition, the
oversight bodies must also be able to ultimately take their objections and their criticism to Parliament and thus to the public in an abstract manner that guarantees secrecy.
298
(3) The effectiveness of oversight must be continually monitored given that oversight processes largely take place without Parliament and the public obtaining knowledge thereof, but are potentially in conflict with the Federal Intelligence Service’s
work that is based on secrecy, and given that the conditions under which surveillance
measures and oversight take place can change quickly in light of technological developments. The effectiveness of oversight in practice and of its statutory framework
must be evaluated at regular intervals (regarding evaluation duties cf. also BVerfGE
150, 1 <90 para. 176>).
299
g) The design of oversight conducted by the Parliamentary Oversight Body and its
Permanent Representative, which exists alongside the other oversight bodies, is also
determined by the legislator; this body can become involved in the oversight of surveillance measures (cf., e.g., § 14 of the Article 10 Act). Such oversight is not at issue
in the present proceedings. The oversight conducted by the Parliamentary Oversight
300
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