148
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
The obligation on the intelligence services to keep records ensured that he
had effective access to details of surveillance activities undertaken (see
paragraph 145 above). In 2016, 970 warrants were examined during
twenty-two interception inspections, representing 61% of the number of
warrants in force at the end of the year and 32% of the total of new warrants
issued in 2016 (see paragraph 185 above). As a consequence, in Kennedy
the Court accepted that despite the fact that the section 8(1) warrant was
authorised by the Secretary of State, sufficient independence was provided
by the Interception of Communications Commissioner (see Kennedy, cited
above, § 166).
379. Furthermore, the IPT has extensive jurisdiction to examine any
complaint of unlawful interception: unlike in many other countries, its
jurisdiction does not depend on notification of the interception to its subject
(see paragraph 124 above), which means that any person who believes that
he or she has been subject to secret surveillance may make an application to
it (see paragraph 318 above). Its members must hold or have held high
judicial office or be a qualified lawyer of at least ten years’ standing (see
paragraph 123 above). Those involved in the authorisation and execution of
an intercept warrant are required to disclose to it all the documents it may
require, including “below the waterline” documents which could not be
made public for reasons of national security (see paragraph 127 above); it
has discretion to hold oral hearings, in public, where possible (see
paragraphs 131, 138 and 139 above); in closed proceedings it may appoint
Counsel to the Tribunal also to make submissions on behalf of claimants
who cannot be represented (see paragraph 142 above); and when it
determines a complaint it has the power to award compensation and make
any other order it sees fit, including quashing or cancelling any warrant and
requiring the destruction of any records (see paragraph 128 above). The
publication of the IPT’s legal rulings further enhances the level of scrutiny
afforded to secret surveillance activities in the United Kingdom (see
Kennedy, cited above, § 167).
380. In any case, the Court notes that under the new Investigatory
Powers Act 2016 warrants will have to be approved by judicial
commissioners following their authorisation by the Secretary of State.
Although this new procedure has not yet been implemented, the
Investigatory Powers Commissioner and the deputy Investigatory Powers
Commissioner have been appointed (see paragraph 197 above).
381. Therefore, while the Court considers judicial authorisation to be
highly desirable and, in its absence, will generally require a non-judicial
authority to be independent of the executive, in the present case, in view of
the pre-authorisation scrutiny of warrant applications, the extensive postauthorisation scrutiny provided by the (independent) Commissioner’s office
and the IPT, and the imminent changes to the impugned regime, it would
accept that the authorisation of section 8(4) warrants by the Secretary of