D.
Absence of mandatory minimum safeguards
157.
For these reasons, the six criteria laid down in Weber do not represent a
mechanical set of rules for assessing whether the s8(4) bulk interception
regime is in accordance with the law. But they do provide an important
guide. The Applicants submit that merely meeting the Weber criteria is
insufficient – especially in the light of the development of surveillance
technology – to ensure there are sufficient safeguards for powers to be in
accordance with the law. However, if bulk surveillance powers do not even
meet the Weber criteria, they will certainly be inadequate to and will
constitute a violation of Convention rights. For the reasons set out in the
Additional Submissions (paras 44 to 60) and expanded upon below, the
s8(4) Regime does not even satisfy the six Weber criteria.
158.
Each of the Weber criteria are considered, in turn, below:
1.
The nature of the “offences” which may give rise to an
interception order
159.
As explained in the Applicants’ Additional Submissions at para 44(1),
initial interception under a s8(4) warrant does not require any suspicion
that a person has committed a criminal offence. Where the Government
conducts s8(4) surveillance without contemplating that a particular
offence has been, or may be, committed, it is unclear how the public can
foresee “the nature of the ‘offences’ which may give rise to an interception
order”.
160.
The
Government relies
exclusively on what it describes as
“a
straightforward application” of Kennedy and R.E. v United Kingdom
(Observations, §4.40). But both Kennedy and R.E. were directed at the
s8(1) Regime, which was designed for interception of specific targets the
Government reasonably suspects of having committed or committing a
particular offence.
62