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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
§§ 62-63, Series A no. 80, that in light of any finding by the Court to the
effect that the IPT is an effective remedy, they would now be required to go
back and exhaust unless it would be unjust to require them to do so. As
these applicants’ complaints concern the general operation of the impugned
regimes, rather than specific complaints about an interference with their
rights under the Convention, they would still be entitled to raise them before
the IPT now.
12. Many of the complaints advanced in the first and second of the
joined applications (including, in particular, all of those relating to the
Chapter II regime, the sharing of non-intercept material with foreign
governments and the lack of protection for confidential journalistic material
and journalistic sources under the section 8(4) regime) were not addressed
in the Liberty proceedings and have not yet been determined by the IPT.
Consequently, there is no reason to doubt that if the applicants were now to
raise those complaints before the IPT, they would have “a reasonable
prospect of success”. In fact, in respect of the Chapter II complaint it may
be thought that they would have a more than reasonable prospect of success.
After all, as the majority records in § 463 of the judgment, the Government,
in response to a challenge brought by Liberty, recently conceded that Part 4
of the IPA (which included a power to issue “retention notices” to
telecommunications operators requiring the retention of data) was
incompatible with fundamental rights in EU law: R (The National Council
for Civil Liberties (Liberty)) v Secretary of State for the Home Department
& Anor [2018] EWHC 975 (Admin). As Chapter II of RIPA, like Part 4 of
the IPA, permits access to data for the purpose of combating crime (as
opposed to “serious crime”), this concession lead the majority to find a
violation of Article 8 of the Convention in relation to the Chapter II regime
(§ 467) which would suggest that the applicants had a strong basis for
challenging, at the domestic level, the compliance of the Chapter II regime
with EU law and, indeed, the Convention.
13. The same could not necessarily be said about those complaints raised
by the first and/or second of the joined cases which were determined by the
IPT in the Liberty proceedings; however, those issues were, of course, also
raised by the applicants in the third of the joined cases and would therefore
(and in fact have been) considered and determined by the Court on its
merits.
14. As a result, and in clear contrast with the ultimate conclusion in
Campbell and Fell, there is here therefore no evidence to suggest that “it
would be unjust now to find these complaints inadmissible for failure to
exhaust domestic remedies” (ibid. at § 63). Consequently, in our view, both
the requirements of Article 35 § 5 of the Convention as well as the
application of the principle of subsidiarity, in fact, required such a finding.
15. The point made in the judgment about the fundamental importance
of the “elucidatory” role of the domestic courts is further underlined by the