BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
11
procedure whereby any such request, if it be made, when referred to the Secretary of
State, must address the issue of s.16(3).”
39. However, subject to this caveat, the IPT reached the following
conclusions:
“(i) Having considered the arrangements below the waterline, as described in this
judgment, we are satisfied that there are adequate arrangements in place for the
purpose of ensuring compliance with the statutory framework and with Articles 8 and
10 of the Convention, so far as the receipt of intercept from Prism and/or Upstream is
concerned.
(ii) This is of course of itself not sufficient, because the arrangements must be
sufficiently accessible to the public. We are satisfied that they are sufficiently
signposted by virtue of the statutory framework to which we have referred and the
Statements of the ISC and the Commissioner quoted above, and as now, after the two
closed hearings that we have held, publicly disclosed by the Respondents and
recorded in this judgment.
(iii) These arrangements are subject to oversight.
(iv) The scope of the discretion conferred on the Respondents to receive and handle
intercepted material and communications data and (subject to the s.8(4) issues referred
to below) the manner of its exercise, are accordingly (and consistent with Bykov - see
paragraph 37 above) accessible with sufficient clarity to give the individual adequate
protection against arbitrary interference.”
40. Finally, the IPT addressed an argument raised by Amnesty
International only; namely, that the United Kingdom owed a positive
obligation under Article 8 of the Convention to prevent or forestall the
United States from intercepting communications including an obligation not
to acquiesce in such interception by receiving its product. However, the IPT,
citing M. and Others v. Italy and Bulgaria, no. 40020/03, § 127, 31 July
2012, noted that “the Convention organs have repeatedly stated that the
Convention does not contain a right which requires a High Contracting
Party to exercise diplomatic protection, or espouse an applicant’s
complaints under international law, or otherwise to intervene with the
authorities of another state on his or her behalf”. The IPT therefore rejected
this submission.
(b) The section 8(4) issue
41. The IPT formulated four questions to be decided in order to
determine whether the section 8(4) regime (which provided the legal
framework for the bulk interception of external communications – see
paragraph 67 below) was compatible with the Convention:
“(1) Is the difficulty of determining the difference between external and internal
communications ... such as to cause the s.8(4) regime not to be in accordance with law
contrary to Article 8(2)?
(2) Insofar as s.16 of RIPA is required as a safeguard in order to render the
interference with Article 8 in accordance with law, is it a sufficient one?