108
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
clear the extent to which the relevant domestic regime was compatible with
the Convention and, if it was not compatible, it could identify the respects in
which it was deficient. If there was a lack of foreseeability, it could identify
with precision the respects in which the applicable safeguards were not –
but should be – public, which, in turn, meant that those aspects of the
regime could be remedied by the Government with further disclosure and/or
amendments to the Code of Practice. Finally, where proportionality was in
issue, it could, through its ability to consider relevant intelligence material
in closed proceedings, provide an effective remedy by ordering the quashing
of section 8(4) warrants and ordering the destruction of data.
240. Finally, in relation to the IPT’s more general declaratory
jurisdiction, the Government argued that there was no deficit in Convention
terms. On the contrary, it could and did rule on the general lawfulness of
regimes about which complaints were made and if it concluded that a
regime was contrary to the Convention, it would so state. Furthermore, the
Government’s reaction to such findings had been consistent. As could be
seen from the response to the Liberty and Belhadj determinations (see
paragraphs 92-94 above), it had ensured that any defects were rectified and
dealt with. Therefore, even though it has no jurisdiction to make a
Declaration of Incompatibility under section 4 of the Human Rights Act
1998, on the facts a finding of incompatibility would be an effective trigger
for the necessary changes to ensure Convention compatibility. In light of
both this fact, and the Court’s increasing emphasis on subsidiarity, the
Government contended that the position had moved on since Kennedy, in
which the Court did not accept that the IPT had provided the applicant with
an effective remedy for his general complaint about the Convention
compliance of section 8(1) of RIPA.
2. The applicants
241. The applicants in the first and second of the joined cases submitted
that they had done all that was required of them in terms of domestic
remedies. While they accepted that they did not file complaints with the IPT
before lodging their applications with this Court, they had not done so in
reliance on the Court’s findings in Kennedy; namely, that a claim before the
IPT was not necessary in order for a general challenge to be brought against
the United Kingdom’s domestic framework. Although they accepted that it
was always open to the Court to reconsider whether a domestic avenue of
complaint provided an effective remedy, it had held that an applicant could
only be required to make use of a remedy that had developed since the
application was lodged if they could still make use of the remedy and it
would not be unjust to declare the application admissible (Campbell
and Fell v. the United Kingdom, 28 June 1984, §§ 62-63, Series A no. 80).
242. In any event, the applicants argued that there had been no change of
circumstances such as would make the IPT an effective remedy. In