CHAPTER 5: LEGAL CONSTRAINTS
is uncertain, but some possibilities were recently alluded to by the Venice Commission
of the Council of Europe:
“The collection of intelligence on or over the high seas, or in the territory of
another state, with that state’s permission, will not be in violation of the
customary international law norm of non-intervention. However ... [c]ollection
facilities in military bases, or vessels situated outside national territory, can …
be within ‘jurisdiction’ for state parties to [the ECHR]. In any event, the
processing, analysis and communication of this material is clearly within
national jurisdiction and is governed both by national law and states’ applicable
human rights obligations.”50
5.38.
For practical purposes, it is likely that any framework for the interception of external
communications, however defined, will have to be ECHR-compliant. It is generally
acknowledged to be impossible, when gathering communications between two
individuals who are both outside the UK, to avoid collecting some communications
that are internal, in the sense that they are both to and from individuals inside the
British Islands.51
5.39.
Jurisdictional issues arise also in relation to the extra-territorial application of national
laws requiring overseas service providers to make data available (e.g. DRIPA 2014
s4), particularly where those laws come into conflict with data protection requirements
in the foreign state. As suggested by the Venice Commission, the long-term resolution
of this issue may require new international standards for privacy.52
Oversight and authorisation
5.40.
The ECtHR has repeatedly affirmed that:
“...in a field where abuse is potentially so easy in individual cases and could
have such harmful consequences for democratic society as a whole, it is in
principle desirable to entrust supervisory control to a judge.”53
5.41.
50
51
52
53
However, in Klass v Germany it rejected the submission that authorisation must be
provided by a judge. The ECtHR explained that review of surveillance may take place
at three stages: when the surveillance is first authorised, while it is being carried out
and after it has been terminated. The initial authorisation process in Germany was
made by the relevant minister or law enforcement officer (much like the current system
in the UK). The implementation of the measure was overseen by an official qualified
for judicial office. The material that was gathered did not go direct to the competent
authorities: rather it was reviewed by that official to determine whether its use was
compatible with the relevant legislation. Review after the event was carried out by
See also Al-Jedda v UK (Application no. 27021/08, Judgment of 7 July 2011) and UN Special
rapporteur on the promotion and protection of human rights and fundamental freedoms while
countering terrorism, 4th annual report, 23 September 2014 (A/69/397).
Ibid., para 69.
See 6.53 below.
Venice Commission Report, para 71.
Klass v Germany (Application no. 5029/71, judgment of 6 September 1978), para 56; Kruslin v France,
para 34; Kennedy v UK, para 167.
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