10
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
subject to oversight and investigation by the Intelligence and Security
Committee of Parliament and the independent Interception of
Communications Commissioner. Furthermore, it itself was in a position to
provide oversight, having access to all secret information, and being able to
adjourn into closed hearing to assess whether the arrangements referred to
by Mr Farr existed and were capable of giving the individual protection
against arbitrary interference.
36. In so far as the claimants challenged the IPT’s decision to look
“below the waterline” when assessing the adequacy of the safeguards, the
IPT considered itself entitled to look at the internal arrangements in order to
be satisfied that there were adequate safeguards and that what was described
as “above the waterline” was accurate and gave a sufficiently clear
signposting as to what was “below the waterline” without disclosing the
detail of it. In this regard, the IPT did not accept that the holding of a closed
hearing, as had been carried out in the applicants’ case, was unfair. It
accorded with the statutory procedure, gave the fullest and most transparent
opportunity for hearing full arguments inter partes on hypothetical and
actual facts with as much as possible heard in public, and protected the
public interest and national security.
37. Having considered the arrangements “below the waterline”, the IPT
was satisfied that the 9 October disclosure (as subsequently amended)
provided a clear and accurate summary of that part of the evidence given in
the closed hearing which could and should be disclosed and that the rest of
the evidence given in closed hearing was too sensitive for disclosure
without risk to national security or to the “neither confirm nor deny”
principle. It was further satisfied that it was clear that the preconditions for
requesting information from the United States Government were either the
existence of a section 8(1) warrant, or the existence of a section 8(4) warrant
within whose ambit the proposed target’s communications fell, together, if
the individual was known to be in the British Islands, with a section 16(3)
modification (see paragraph 80 below). In other words, any request pursuant
to PRISM or Upstream in respect of intercept or communications data
would be subject to the RIPA regime, unless it fell within the wholly
exceptional scenario outlined in 1(b) of the material disclosed after the first
hearing. However, a 1(b) request had never occurred.
38. The IPT nevertheless identified the following “matter of concern”:
“Although it is the case that any request for, or receipt of, intercept or
communications data pursuant to Prism and/or Upstream is ordinarily subject to the
same safeguards as in a case where intercept or communication data are obtained
directly by the Respondents, if there were a 1(b) request, albeit that such request must
go to the Secretary of State, and that any material so obtained must be dealt with
pursuant to RIPA, there is the possibility that the s.16 protection might not apply. As
already indicated, no 1(b) request has in fact ever occurred, and there has thus been no
problem hitherto. We are however satisfied that there ought to be introduced a