Investigatory Powers Commissioner’s Annual Report 2019

Big Brother Watch – claim to the European Court of Human Rights

In our 2018 report, we summarised the judgment made by the European Court of Human
Rights (ECtHR) in relation to Big Brother Watch v UK (‘the BBW judgment’).2 We noted
that we had been working with the Government to understand their response to the
judgment and that they had proposed that, where an intelligence service intended to
select secondary data (such as communications data) for examination3 in relation to an
individual known to be in the British Islands, it would be beneficial for the examination to
be certified as necessary and proportionate by the Secretary of State. Details of how this
has been inspected are given in Chapter 10, which covers our oversight of the Government
Communications Headquarters (GCHQ).


The Grand Chamber of the ECtHR heard the appeal from the decision of the First Section in
July 2019 and its ruling is currently awaited.

Liberty’s judicial review challenge to the Investigatory Powers Act

On 29 July 2019, the High Court delivered its second judgment in the case of Liberty v
Secretary of State for the Home Department [2019] EWHC 2057. In its first judgment in this
case, in 2018, the High Court had ruled in relation to the compatibility of Part 4 of the IPA
(retention of communications data by telecommunications operators) with EU law.


In its judgment of July 2019, the High Court ruled in relation to Liberty’s challenge to the
IPA brought under the Human Rights Act. Liberty (with the National Union of Journalists
as interveners) contended that various Parts of the IPA, and in particular the bulk powers
regimes, were incompatible with the European Convention on Human Rights (ECHR).
Liberty’s challenge related to:
• bulk interception warrants (Part 6, Chapter 1 of the IPA);
• bulk and thematic equipment interference warrants (Part 6, Chapter 3 and Part 5 of
the IPA);
• bulk personal datasets (Part 7 of the IPA);
• bulk communications data (Part 6, Chapter 2 of the IPA); and
• acquisition and retention of communications data (Parts 3 and 4 of the IPA) and
contended that those Parts of the IPA:
1. were incompatible with Articles 8 and 10 of the ECHR; and
2. provide insufficient safeguards for lawyer-client communications and journalistic
material (including confidential sources of journalistic information).



Further questions as to the compatibility of the bulk powers with EU law have been left for
determination in due course. Of particular relevance to this will be the awaited ruling of
the European Court of Justice in relation to the referral to that Court, by the IPT,4 of various
questions in relation to the acquisition of bulk communications data under section 94 of

European Court of Human Rights, “Q&A on the judgment Big Brother Watch and Others v. United Kingdom”
(13 September 2018), https://www.echr.coe.int/Documents/Press_Q_A_Brother_Watch_ENG.pdf
An examination being the act of material being read, looked at or listened to by the persons to whom it
becomes available as a result of a warrant.
See Privacy International v Secretary of State for Foreign and Commonwealth Affairs (No.2) Note [2017]
UKIPTrib 15_110-CH

Select target paragraph3