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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
disclosure and destruction of legally privileged material had not been in
accordance with the law for the purposes of Article 8 § 2 of the Convention
and was accordingly unlawful. The Security Service and GCHQ confirmed
that they would work in the forthcoming weeks to review their policies and
procedures in light of the draft Interception Code of Practice and otherwise.
94. The IPT subsequently held a closed hearing, with the assistance of
Counsel to the Tribunal (see paragraph 142 below), to consider whether any
documents or information relating to any legally privileged material had
been intercepted or obtained by the respondents. In a determination of
29 March 2015 it found that only two documents containing material
subject to legal professional privilege of any of the claimants had been held
by the agencies, and they neither disclosed nor referred to legal advice. It
therefore found that the claimant concerned had not suffered any detriment
or damage, and that the determination provided adequate just satisfaction. It
nevertheless required that GCHQ provide an undertaking that those parts of
the documents containing legally privileged material would be destroyed or
deleted; that a copy of the documents would be delivered to the Interception
of Communications Commissioner to be retained for five years; and that a
closed report would be provided within fourteen days confirming the
destruction and deletion of the documents.
95. Draft amendments to both the Interception of Communications Code
of Practice and the Acquisition of Communications Data Code of Practice
were subsequently put out for consultation and the Codes which were
adopted as a result contained expanded sections concerning access to
privileged information.
B. Intelligence sharing
1. British-US Communication Intelligence Agreement
96. A British-US Communication Intelligence Agreement of 5 March
1946 governs the arrangements between the British and United States
authorities in relation to the exchange of intelligence information relating to
“foreign” communications, defined by reference to countries other than the
United States, the United Kingdom and the Commonwealth. Pursuant to the
agreement, the parties undertook to exchange the products of a number of
interception operations relating to foreign communications.
2. Relevant statutory framework for the operation of the intelligence
services
97. There are three intelligence services in the United Kingdom: the
security service (“MI5”), the secret intelligence service (“MI6”) and GCHQ.