BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
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consider a challenge to a legislative regime in abstracto when the applicants
had a domestic forum in which they could have challenged at the very least
the possible application of those measures to them.
253. In any event, the IPT’s ruling in Mr Kennedy’s case came very
early in the Tribunal’s history. In fact, Mr Kennedy’s application, together
with an application lodged by British and Irish Rights Watch, was the first
time that the IPT sat in public. It was in the context of those applications
that it gave its defining ruling on preliminary issues of law and established
its current practice (see paragraphs 136-141 above). For the reasons set out
below, the Court considers that in view both of the manner in which the IPT
has exercised its powers in the fifteen years that have elapsed since that
ruling, and the very real impact its judgments have had on domestic law and
practice, the concerns expressed by the Court in Kennedy about its
effectiveness as a remedy for complaints about the general compliance of a
secret surveillance regime are no longer valid.
254. First, in Kennedy the IPT had fully examined Mr Kennedy’s
specific complaint about the interception of his communications. The Court
was solely concerned with whether an examination of the general complaint
could have provided additional clarification. Unlike the present case,
therefore, the Court was not being called upon to consider the general
complaint entirely in abstracto.
255. Secondly, an examination of the IPT’s extensive post-Kennedy
case-law demonstrates the important role that it can and does play in
analysing and elucidating the general operation of secret surveillance
regimes. For example, in B v. the Security Services, Case No IPT/03/01/CH,
21 March 2004 the IPT considered, as a preliminary issue of law, whether
the Secretary of State’s “neither confirm nor deny” policy was compatible
with Article 8 of the Convention. Similarly, in A Complaint of Surveillance,
Case No IPT/A1/2013, 24 July 2013 the IPT provided elucidation on the
meaning of the term “surveillance” in Part II of RIPA. Moreover, given the
“secret” nature of most surveillance regimes, the scope of their operation
will not always be evident from the “above the waterline” material. For
example, in the Liberty proceedings the IPT played a crucial role first in
identifying those aspects of the surveillance regimes which could and
should be further elucidated, and then recommending the disclosure of
certain “below the waterline” arrangements in order to achieve this goal. It
could therefore be said that the IPT, as the only tribunal with jurisdiction to
obtain and review “below the waterline” material, is not only the sole body
capable of elucidating the general operation of a surveillance regime; it is
also the sole body capable of determining whether that regime requires
further elucidation.
256. This “elucidatory” role is of invaluable assistance to the Court
when it is considering the compliance of a secret surveillance regime with
the Convention. The Court has repeatedly stated that it is not its role to