BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
117
the abstract, and in Kennedy the applicant’s challenge to the RIPA
provisions was a challenge to primary legislation as opposed to the whole
legal framework governing the relevant surveillance regime), the
Government, for their part, have not sought to distinguish Kennedy from the
case at hand. Moreover, the case-law of the IPT which the Government have
relied on as evidence of its effectiveness as a remedy post-dates the
introduction before this Court – on 4 September 2013 and 11 September
2014 – of the complaints made by the applicants in the first and second of
the joined cases. For example, the main judgment in the Liberty proceedings
was delivered on 5 December 2014, the Belhadj proceedings concluded on
26 February 2015 and News Group and Others was decided on
17 December 2015). While the Court has identified some earlier cases
which illustrate the effectiveness of the IPT (for example, B, A Complaint of
Surveillance and Paton and Others), none of these cases concerned a
general complaint about the Convention compliance of a surveillance
regime. In comparison, the Liberty proceedings, Belhadj and News Group
and Others all demonstrate the important and unique role of the IPT in both
elucidating the operation of such regimes, and remedying any breaches of
the Convention.
268. Consequently, while the Court acknowledges that since Kennedy
was decided in 2010 the IPT has shown itself to be an effective remedy
which applicants complaining about the actions of the intelligence services
and/or the general operation of surveillance regimes should first exhaust in
order to satisfy the requirements of Article 35 § 1 of the Convention, it
would nevertheless accept that at the time the applicants in the first and
second of the joined cases introduced their applications, they could not be
faulted for relying on Kennedy as authority for the proposition that the IPT
was not an effective remedy for a complaint about the general Convention
compliance of a surveillance regime. It therefore finds that there existed
special circumstances absolving these applicants from the requirement that
they first bring their complaints to the IPT and, as a consequence, it
considers that their complaints cannot be declared inadmissible pursuant to
Article 35 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
269. Cumulatively, the applicants in the three joined cases complain
about the Article 8 compatibility of three discrete regimes: the regime for
the bulk interception of communications under section 8(4) of RIPA; the
intelligence sharing regime; and the regime for the acquisition of
communications data under Chapter II of RIPA. The Court will consider
each of these regimes separately.