BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
153
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
(a) The parties’ submissions
(i) The applicants
398. The applicants submitted that even following the 9 October
disclosure, there remained no basis in law for the intelligence sharing
carried out by the intelligence services, and there was certainly no regime
which satisfied the Court’s “quality of law” requirements.
399. With regard to the test to be applied, the applicants contended that
an interference with the rights protected by Article 8 of the Convention was
no less serious when a third State shared the intelligence with the
respondent State than when the respondent State conducted the surveillance
itself. In R.E. the Court held that in determining whether the six minimum
requirements applied the decisive factor would be the level of interference
with an individual’s right to respect for his or private life, and not the
technical definition of that interference (R.E., cited above, § 130). Since the
degree of interference caused by the receipt of intelligence from third
countries was similar to that caused by direct interception on the part of the
respondent State, how that interference was technologically achieved should
be irrelevant.
400. In the opinion of the applicants, the publication of the revised IC
Code in 2016 was insufficient the remedy the flaws in the regime identified
by the IPT as it simply applied the inadequate RIPA regime to the obtaining
of data intercepted by a foreign Government.
(ii) The Government
401. The Government submitted that the intelligence sharing regime
now had a basis in domestic law (namely, the Security Services Act 1989
(“the SSA”) and the Intelligence Services Act 1994 (“the ISA”), as read
with the Counter Terrorism Act 2008 (“the CTA”); the Human Rights Act
1998 (“the HRA”); the Data Protection Act 1998 (“the DPA”); the Official
Secrets Act 1989 (“the OSA”); and Chapter 12 of the IC Code) and that law
was clearly accessible.
402. They further argued that it was foreseeable as the law indicated the
scope of any discretion and the manner of its exercise with sufficient clarity
to give the individual adequate protection against arbitrary interference.
They did not accept that the six criteria set down in Weber and Saravia (see
paragraph 307 above) applied to an intelligence sharing regime in the same
way as they applied to an interception regime. In this regard, the Court had
expressly recognised that the strict standards developed in intercept cases