related communications data that is actually initially intercepted,
extracted, filtered, stored, analysed and/or disseminated by the UK
intelligence agencies.
(2)
The s8(4) Regime falls far short of complying with the minimum
procedural safeguards listed above. The operation of sophisticated
covert surveillance powers without adequate safeguards is ipso
facto disproportionate.
(3)
In particular, there is no requirement of individual reasonable
suspicion. The twin justifications advanced for the existence of the
regime – technical necessity and the ability to discover previously
unknown threats – would, if accepted, render a case-by-case
assessment of the treatment of particular intercepted material
impossible and meaningless. On the Government’s case, the ends
sought would automatically justify the means in every case. This is
the antithesis of what a proper application of Article 8 entails.
4.
Response to the IPT’s handling of questions of proportionality in
its Third Judgment
215.
The IPT did not adequately address issues of proportionality:
a.
No proper consideration of the general proportionality of the s8(4)
regime
216.
The IPT’s Third Judgment asserted that the submissions it had received
“enabled it to take into account questions relating to both generic (or
‘systemic’) questions and those relating to the individual claimant and its
communications”.128 However, save for that bald assertion, the remainder
of the judgment did not contain any discussion or examination of the
proportionality of the bulk interception regime.
128
IPT Third Judgment, para 3.
85