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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
(ζ) Supervision and remedies
441. In nearly every case either a section 8(1) or 8(4) warrant will be in
place, meaning that the Secretary of State (and, following the coming into
force of IPA 2016, a judicial commissioner) will have authorised the
interception. In exceptional circumstances, when a warrant is not in place,
the Secretary of State must personally consider and decide upon the request,
and the Interception of Communications Commissioner (now the
Investigatory Powers Commissioner) must be notified. Therefore, in every
case where a request has been made the Secretary of State will have deemed
the interception to be necessary and proportionate (in the Convention
sense).
442. Further oversight of the intelligence sharing regime is provided by
the ISC, a cross-party Committee of Members of Parliament which
exercises wide powers. Following an extensive review, on 13 July 2013 the
ISC published a report in which it concluded that allegations “that GCHQ
circumvented UK law by using the NSA’s PRISM programme to access the
content of private communications” were unfounded as GCHQ had
complied with its statutory duties contained in the ISA (see
paragraphs 148-150 above).
443. Additional oversight was afforded by the Interception of
Communications Commissioner, who was independent from both
Government and the intelligence services. He was under a duty by
section 58(4) of RIPA to make an annual report to the Prime Minister
regarding the carrying out of his functions, which had to be laid before
Parliament. As already noted, the Interception of Communications
Commissioner has now been replaced by the Investigatory Powers
Commissioner. On 17 October 2017, in a reply to a question posed by, inter
alia, Privacy International, the new Commissioner confirmed that, like his
predecessor, he had the power to oversee the Government’s intelligence
sharing agreements, and that he intended to use those powers actively to
ensure effective oversight.
444. A final level of oversight is provided by the IPT, and its
effectiveness was demonstrated in the Liberty proceedings by the fact that it
was able to ensure disclosure of certain arrangements which have now been
incorporated into the IC Code (see paragraph 109 above).
(η) Proportionality
445. The Court has always been acutely conscious of the difficulties
faced by States in protecting their populations from terrorist violence, which
constitutes, in itself, a grave threat to human rights (see, for example,
Lawless v. Ireland (no. 3), 1 July 1961, §§ 28–30, Series A no. 3; Ireland
v. the United Kingdom, 18 January 1978, Series A no. 25; and Öcalan
v. Turkey [GC], no. 46221/99, § 179, ECHR 2005-IV) and in recent years it
has expressly acknowledged – in response to complaints invoking a wide