114
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
determine questions of fact or to interpret domestic law. That is especially
so where domestic law is complex and, for reasons of national security, the
State is not at liberty to disclose relevant information to it. Given the
confidential nature of the relevant documentation, were applicants to lodge
complaints about secret surveillance with this Court without first raising
them before the IPT, this Court would either have to become the primary
fact-finder in such cases, or it would have to assess necessity and
proportionality in a factual vacuum. This difficulty is particularly apparent
in respect of those complaints not considered by the IPT in the Liberty
proceedings; in particular, the Chapter II complaint and the complaint about
the receipt of non-intercept material from foreign intelligence services. The
Court has before it very limited information about the scope and operation
of these regimes and it could therefore only consider these complaints if it
were either to accept the applicants’ allegations as fact, or to attempt to
conduct its own fact-finding exercise. In such cases, therefore, it is
particularly important that the domestic courts, which have access to the
confidential documentation, first strike the “complex and delicate balance”
between the competing interests at stake (see paragraph 245 above).
257. Consequently, on the basis of the information submitted to it, the
Court considers that the IPT can – and regularly does – elucidate the general
operation of surveillance regimes, including in cases where such elucidation
is considered necessary to ensure the regime’s Convention compliance.
258. Furthermore, from the information submitted in the present case it
would appear that where the IPT has found a surveillance regime to be
incompatible with the Convention, the Government have ensured that any
defects are rectified and dealt with. In the Liberty proceedings, once the IPT
had identified which of the “below the waterline” arrangements could and
should be made public in order for the intelligence sharing regime to be
Convention compliant, the Government agreed to the proposed disclosure
(“the 9 October disclosure”) and the disclosed material was subsequently
added to the amended Code of Practice (see paragraphs 26-30 above). In
addition, having found that there had been a breach of Article 8 of the
Convention by virtue of the fact that email communications of Amnesty
International, which had been intercepted and accessed “lawfully and
proportionately”, had nevertheless been retained for longer than was
permitted under GCHQ’s internal policies, the IPT ordered GCHQ to
destroy the communications within seven days, and to provide a closed
report within fourteen days confirming their destruction (see paragraph 54
above).
259. Similarly, in the Belhadj case the Government conceded that from
January 2010 the regime for the interception, obtaining, analysis, use,
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. As a consequence, the Security Service and