287.
The Government accepts “NGOs engaged in the legitimate gathering of
information of public interest in order to contribute to public debate may
properly claim the same Art. 10 protections as the press.” (Observations,
§6.1). Accordingly, it recognises that “[i]n principle, therefore, the
obtaining, retention, use or disclosure of the applicants’ communications
and communications data may potentially amount to an interference with
their Art. 10 rights” (§6.1).
288.
The
IPT
determined
that
“[t]he
issues
in
relation
to
Article
10…were…simply mirror images of the same issues under Article 8 and
raised…no further or separate issue.”142
289.
In general terms, both the s8(4) and intelligence sharing regimes
contravene Article 10 for the same reasons that they contravene Article 8.
290.
In addition, the IPT erred in failing to address whether particular
safeguards – to protect NGOs’ confidential and privileged communications
– existed in the s8(4) and intelligence sharing regimes. The Government
has provided no indication of the existence of any procedural safeguards –
secret or otherwise – commensurate with the importance of the social
watchdog role of human rights NGOs’ Article 10 rights. (Sanoma Uitgevers
B.V. v. the Netherlands, App. no. 38224/03, 14 Sept. 2010, §88).
291.
The regimes for dealing with including accessing privileged NGO
communications under s8(4) and intelligence sharing are insufficient
because they fail to provide a guarantee of review by a judge or other
independent and impartial decision-making body. (Sanoma Uitgevers B.V.,
§89). As noted by the Court in Sanoma Uitgevers B.V., “the requisite
review should be carried out by a body separate from the executive and
other interested parties, invested with the power to determine whether a
requirement in the public interest overriding the principle of protection of
142
First IPT Judgment, §135.
112