134
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
- Accessibility
325. The applicants challenge the accessibility of domestic law on the
grounds that it is too complex to be accessible to the public, and it relies on
“below the waterline” arrangements. It is true that most of the reports into
the United Kingdom’s secret surveillance regimes have criticised the
piecemeal development – and subsequent lack of clarity – of the legal
framework (see paragraphs 152, 162 and 167 above). However, as with
other cases in which domestic law has been considered in abstracto and
amendments have been made to the legislation while the application was
pending (see, for example, Association for European Integration and
Human Rights and Ekimdzhiev), in the present case the Court must review
the Convention compliance of the law in force at the date of its examination
of the applicants’ complaints. It therefore can, and should, take into account
the IC Code which was amended in 2016 to clarify the legal framework and
reflect the further disclosures which were made following the Snowden
revelations and which are examined in detail in the ISC report, the
Anderson report and the ISR report (see paragraphs 90, 148-150, 160-165
and 166-172 above). As the IC Code is a public document, subject to the
approval of both Houses of Parliament, and has to be taken into account
both by those exercising interception duties and by courts and tribunals, the
Court has expressly accepted that its provisions could be taken into
consideration in assessing the foreseeability of the RIPA regime (see
Kennedy, cited above, § 157).
326. Insofar as the applicants complain about the existence of “below
the waterline” arrangements, the Court has acknowledged that States do not
have to make public all the details of the operation of a secret surveillance
regime, provided that sufficient information is available in the public
domain (see Roman Zakharov, cited above, §§ 243-244 and 247; see also,
among many examples, Szabó and Vissy, cited above, § 64, and Kennedy,
cited above, § 159). In the context of secret surveillance, it is inevitable that
“below the waterline” arrangements will exist, and the real question for the
Court is whether it can be satisfied, based on the “above the waterline”
material, that the law is sufficiently foreseeable to minimise the risk of
abuses of power. This is a question that goes to the foreseeability and
necessity of the relevant law, rather than its accessibility.
327. Therefore, while the Court concurs with several of the
aforementioned domestic reports that RIPA and the accompanying
surveillance framework are extremely complex, in the present case it will
concentrate on the requirements of “foreseeability” and “necessity”.
- The scope of application of secret surveillance measures
328. The first two minimum requirements have traditionally been
referred to as the nature of the offences which might give rise to an
interception order and a definition of the categories of people liable to have