BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
9
Weber and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006‑XI. As a
consequence, there would need to be compliance by the authorities involved
in processing the data with the requirements of Article 8, particularly in
relation to storage, sharing, retention and destruction. In the IPT’s view, in
order for the interference to be considered “in accordance with the law”,
there could not be unfettered discretion for executive action; rather, the
nature of the rules had to be clear and the ambit of the rules had – in so far
as possible – to be in the public domain (citing Bykov v. Russia [GC],
no. 4378/02, §§ 76 and 78, 10 March 2009 and Malone v. the United
Kingdom, 2 August 1984, Series A no. 82). However, it considered it plain
that in the field of national security, much less was required to be put in the
public domain and the degree of foreseeability required by Article 8 had to
be reduced, otherwise the whole purpose of the steps taken to protect
national security would be at risk (citing Leander v. Sweden, 26 March
1987, § 51, Series A no. 116).
33. The IPT continued:
“41. We consider that what is required is a sufficient signposting of the rules or
arrangements insofar as they are not disclosed ... We are satisfied that in the field of
intelligence sharing it is not to be expected that rules need to be contained in statute
(Weber) or even in a code (as was required by virtue of the Court’s conclusion in
Liberty v. [the United Kingdom, no. 58243/00, 1 July 2008]). It is in our judgment
sufficient that:
i) Appropriate rules or arrangements exist and are publicly known and confirmed
to exist, with their content sufficiently signposted, such as to give an adequate
indication of it (as per Malone ...).
ii) They are subject to proper oversight.”
34. The IPT noted that arrangements for information sharing were
provided for in the statutory framework set out in the Security Services Act
1989 (“the SSA” – see paragraphs 98-99 below) and the Intelligence
Services Act 1994 (“the ISA” – see paragraphs 100-103 below). It further
referred to a witness statement of Charles Farr, the Director-General of the
Office for Security and Counter Terrorism (“OSCT”) at the Home Office, in
which he explained that the statutory framework set out in those Acts was
underpinned by detailed internal guidance, including arrangements for
securing that the services only obtained the information necessary for the
proper discharge of their functions. He further indicated that staff received
mandatory training on the legal and policy framework in which they
operated, including clear instructions on the need for strict adherence to the
law and internal guidance. Finally, he stated that the full details of the
arrangements were confidential since they could not be published safely
without undermining the interests of national security.
35. The IPT therefore acknowledged that as the arrangements were not
made known to the public, even in summary form, they were not accessible.
However, the IPT considered it significant that the arrangements were