BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
147
- Supervision, notification and remedies
375. Supervision of the regime is carried out at a number of levels. First
of all, according to the Interception of Communications Commissioner, a
“critical quality assurance function [is] initially carried out by the staff and
lawyers within the intercepting agency or the warrant-granting department”
(see paragraph 180 above). The warrant-granting departments provide
independent advice to the Secretary of State and perform important preauthorisation scrutiny of warrant applications and renewals to ensure that
they were (and remained) necessary and proportionate (see paragraph 180
above).
376. Secondly, section 8(4) warrants must be authorised by the Secretary
of State. As already noted, while the Court has recognised judicial
authorisation to be an “important safeguard against arbitrariness” (see
Roman Zakharov, cited above, § 249), to date it has not considered it to be a
“necessary requirement” (see, for example, Roman Zakharov, cited above,
§ 258; see also Klass and Others, cited above, § 51; Weber and Saravia,
cited above, § 115; Kennedy, cited above, § 31; and Szabó and Vissy, cited
above, § 77). Although desirable in principle, by itself it is neither necessary
nor sufficient to ensure compliance with Article 8 of the Convention (see
paragraphs 318-320 above).
377. It is true that the Court has generally required a non-judicial
authority to be sufficiently independent of the executive (see Roman
Zakharov, cited above, § 258). However, it must principally have regard to
the actual operation of a system of interception as a whole, including the
checks and balances on the exercise of power, and the existence (or
absence) of any evidence of actual abuse (see paragraph 320 above), such as
the authorising of secret surveillance measures haphazardly, irregularly or
without due and proper consideration (see Roman Zakharov, cited above,
§ 267).
378. In the present case there is no evidence to suggest that the Secretary
of State was authorising warrants without due and proper consideration. The
authorisation procedure was subject to independent oversight by the
Interception of Communications Commissioner (recently replaced by the
Investigatory Powers Commissioner following the coming into force of the
Investigatory Powers Act 2016 – see paragraph 147 above), who was
independent of the executive and the legislature, held or had held high
judicial office, and was tasked with overseeing the general functioning of
the surveillance regime and the authorisation of interception warrants in
specific cases. The Commissioner reported annually to the Prime Minister
and his report was a public document (subject to the non-disclosure of
confidential annexes) which was laid before Parliament. In undertaking his
review of surveillance practices, he was granted access to all relevant
documents, including closed materials, and all those involved in
interception activities had a duty to disclose to him any material he required.