170
BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
particular regard to the question of whether it provided adequate safeguards
against arbitrariness.
(iii) Examination of the Chapter II regime
465. No interference can be considered to be “in accordance with law”
unless the decision occasioning it complies with the relevant domestic law.
It is in the first place for the national authorities, notably the courts, to
interpret and apply the domestic law: the national authorities are, in the
nature of things, particularly qualified to settle issues arising in this
connection. The Court cannot question the national courts’ interpretation,
except in the event of flagrant non-observance or arbitrariness in the
application of the domestic legislation in question (see Mustafa Sezgin
Tanrıkulu, cited above, § 53; see also, mutatis mutandis, Weber and
Saravia, cited above, § 90).
466. The Court observes that the Chapter II regime has a clear basis in
both section 22 of RIPA and the ACD Code. However, as a Member State
of the European Union, the Community legal order is integrated into that of
the United Kingdom and, where there is a conflict between domestic and
law and EU law, the latter has primacy. Consequently, the Government have
conceded that Part 4 of the IPA is incompatible with EU law because access
to retained data was not limited to the purpose of combating “serious
crime”; and access to retained data was not subject to prior review by a
court or an independent administrative body. Following this concession, the
High Court ordered that the relevant provisions of the IPA should be
amended by 1 November 2018 (see paragraph 196 above).
467. It is therefore clear that domestic law, as interpreted by the
domestic authorities in light of the recent judgments of the CJEU, requires
that any regime permitting the authorities to access data retained by CSPs
limits access to the purpose of combating “serious crime”, and that access
be subject to prior review by a court or independent administrative body. As
the Chapter II regime permits access to retained data for the purpose of
combating crime (rather than “serious crime”) and, save for where access is
sought for the purpose of determining a journalist’s source, it is not subject
to prior review by a court or independent administrative body, it cannot be
in accordance with the law within the meaning of Article 8 of the
Convention.
468. Accordingly, the Court finds that there has been a violation of
Article 8 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
469. The applicants in the third of the joined cases complained under
Article 10 of the Convention about the section 8(4) regime and the
intelligence sharing regime, arguing, in particular, that the protection