6
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
whose function is to assist the IPT in whatever way it directs, including by
making representations on issues in relation to which not all parties can be
represented (for example, for reasons of national security).
23. In their response to the applicants’ claims, the Government adopted
a “neither confirm nor deny” approach, that is to say, they declined to
confirm or deny whether the applicants’ communications had actually been
intercepted. It was therefore agreed that the IPT would determine the legal
issues on the basis of assumed facts to the effect that the NSA had obtained
the applicants’ communications and communications data via PRISM or
Upstream and had passed them to GCHQ, where they had been retained,
stored, analysed and shared; and that the applicants’ communications and
communications data had been intercepted by GCHQ under the TEMPORA
programme and had been retained, stored, analysed and shared. The
question was whether, on these assumed facts, the interception, retention,
storage and sharing of data was compatible with Articles 8 and 10, taken
alone and together with Article 14 of the Convention.
1. The hearing
24. The IPT, composed of two High Court Judges (including the
President), a Circuit Judge and two senior barristers, held a five-day, public
hearing from 14-18 July 2014. The Government requested an additional
closed hearing in order to enable the IPT to consider GCHQ’s unpublished
– described during the public hearing as “below the waterline” – internal
arrangements for processing data. The applicants objected, arguing that the
holding of a closed hearing was not justified and that the failure to disclose
the arrangements to them was unfair.
25. The request for a closed hearing was granted pursuant to Rule 9 of
the IPT’s Rules of Procedure (see paragraph 131 below) and on
10 September 2014 a closed hearing took place, at which neither the
applicants nor their representatives were present. Instead, the IPT was
“assisted by the full, perceptive and neutral participation ... of Counsel to
the Tribunal”, who performed the following roles: (i) identifying
documents, parts of documents or gists that ought properly to be disclosed;
(ii) making such submissions in favour of disclosure as were in the interests
of the Claimants and open justice; and (iii) ensuring that all the relevant
arguments (from the Claimants’ perspective) on the facts and the law were
put before the IPT.
26. In the closed hearing, the IPT examined the internal arrangements
regulating the conduct and practice of the intelligence services. It found that
it was entitled to look “below the waterline” to consider the adequacy of the
applicable safeguards and whether any further information could or should
be disclosed to the public in order to comply with the requirements of
Articles 8 and 10.