BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT –
SEPARATE OPINIONS
203
the data with the same or similar safeguards as those applicable
internally; and
(g) provided for an obligation to notify the subject of an intercept
after the event; an obligation which, however, “had never been used by
the FRA, due to secrecy.
25. Considering the accepted difficulty in making a meaningful
comparison between two or more distinct interception regime together with
the different conclusions reached by this Court at about the same time, in
our view, further underlines the importance of the Court adopting an
approach of asking whether, taking “an overall assessment and having
regard to the margin of appreciation enjoyed by the national authorities in
protecting national security” the system adopted provides adequate and
sufficient guarantees against arbitrariness and the risk of abuse, even if there
may be individual aspects of any system which might be capable of being
altered or improved. Such an approach properly reflects the role of the
Convention, which is to set down “minimum standards” that can be applied
across all Member States. Provided that – following an overall assessment –
the Court finds that a system for bulk interception provides adequate and
sufficient guarantees against arbitrariness and abuse, in view of the very
different regimes in operation in different States, it will not be appropriate
for it to be too prescriptive about the way in which those regimes should
operate (although it may, as it did both in Centrum För Rättvisa and in this
case, identify those aspects of the regime which could be improved upon).
Applying this approach to the Court’s supervisory jurisdiction in the present
case (as it was in Centrum För Rättvisa), the Court should have given due
weight to the fact that the domestic courts and authorities have subjected
both the UK system as a whole as well as the individual complaints at issue
to detailed and extensive scrutiny by express reference to the Convention
standards and this Court’s case law and should have found that there was,
here, no breach of Article 8 of the Convention.
Post Scriptum
26. Since the adoption of this judgment on 3 July 2018, the IPT has
handed down yet another judgment in relation to another, unrelated, aspect
of the UK’s surveillance regime: Privacy International v Secretary of State
for Foreign and Commonwealth Affairs (Rev 1) [2018] UKIPTrib
IPT_15_110_CH (23 July 2018). For obvious reasons this judgment was not
available for consideration by the Court when it reached its conclusions on
the question of exhaustion of domestic remedies (and we have heard no
submissions on it). That said, it seems to us that this careful and detailed
judgment provides yet further support (if any was necessary) that, in
principle, the IPT is an effective remedy for the purposes of Article 35 § 1