BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
197
intelligence sharing and the acquisition of communications data) is
significantly broader than that of the section 8(1) regime, and the applicants’
complaints concern not only primary legislation, but the overall legal
framework governing those regimes (including the alleged absence of any
relevant arrangements or other safeguards). Consideration of the broader
legal framework necessarily requires an examination of both RIPA and the
relevant Codes of Practice, together with any “below the waterline”
arrangements and/or safeguards. In view of the much broader scope of both
their complaints and the impugned regimes, none of which had been the
subject of any examination by the IPT, it should have been evident to the
applicants in the first and second of the joined cases – who were, at all
times, represented by experienced counsel – that, unlike Kennedy, this was a
case in which the general operation of these regimes required further
elucidation, and in which the IPT, on account if its “extensive powers ... to
investigate complaints before it and to access confidential information”
would have been capable of providing a remedy.
9. There is, therefore, also no basis for any suggestion that our approach
seeks, in any way, to overturn or “disapply” the Court’s unanimous ruling in
Kennedy. The simple fact is that, in our view, the two are clearly and
obviously distinguishable.
10. Secondly, the first applicant, was clearly informed by the
Government, in their response to the letter before action of 26 July 2013
(§ 19), that their complaints could be raised in the IPT, a court established
specifically to hear allegations by citizens of wrongful interference with
their communications as a result of conduct covered by that Act and a court
endowed with exclusive jurisdiction to investigate any complaint that a
person’s communications have been intercepted and, where interception has
occurred, to examine the authority for such interception. This letter was, of
course, sent at around the same time as the ten human rights organisations
which are the applicants in the third of the joined cases, no doubt
recognising the need to have exhausted existing effective domestic remedies
before applying to this Court, lodged their complaints before the IPT (June
to December 2013; § 21). It was also four years after the UK Supreme
Court, in its judgment in R (on the application of A) v B [2009] UKSC 12,
had confirmed the exclusive jurisdiction of the IPT and its ability, as
demonstrated by its decisions in Kennedy (IPT/01/62 & 77) and The BritishIrish Rights Watch and others v Security Service, GCHQ and the SIS
(IPT/01/77), to adjust the procedures before it as necessary so as to ensure
that disputes before it can be determined justly.
11. Thirdly and in any event, even if, contrary to our view, the
applicants in the first and second of the joined cases would have been
entitled to rely on Kennedy at the time they lodged their applications with
the Court they nevertheless accepted before this Court (§ 241), by reference
to the judgment in Campbell and Fell v. the United Kingdom, 28 June 1984,