17.
The Applicants submit the same is true of the present case. The blanket
and indiscriminate nature of the s8(4) Regime fails to strike a fair balance
between public and private interests and similarly oversteps any
acceptable margin of appreciation. As the Grand Chamber held in Klass v
Germany (1978) 2 EHRR 214: “The Court, being aware of the danger such
a law poses of undermining or even destroying democracy on the ground of
defending it, affirms that the Contracting States may not, in the name of
the struggle against espionage and terrorism, adopt whatever measures
they deem appropriate” (§49).2
The Intelligence Sharing Regime
18.
The Government’s access to data intercepted by other countries’
intelligence agencies, including the NSA, raises similar concerns. Until
very recently, and only after this case was initiated before the UK
Investigatory Powers Tribunal (“IPT”), the UK had no publicly accessible
regime governing intelligence sharing. Even now, that regime remains
highly deficient.
19.
The Government argues that such intelligence sharing should not be
subject to the same safeguards as its own interception powers. But its
reasoning is faulty. Just because another country is conducting the
interception does not lessen the intrusion. Accordingly, whether the
Government intercepts communications and communications data itself or
obtains the same flow of data from another intelligence agency, the same
safeguards should apply. It is a breach of Article 3 of the Convention to
torture a person. It is equally a breach to deport a person to face a real
risk of torture. Outsourcing the same conduct does not excuse the Council
of Europe state from liability. Convention rights are practical and
effective, not theoretical and illusory. See Chahal v UK (1996) 23 EHRR
413. Where intelligence sharing involves access to information intercepted
2
See also, e.g., Rotaru v Romania, App. No. 28341/95, 4 May 2000, §59.
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