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BIG BROTHER WATCH AND OTHERS v. THE UNITED KINGDOM JUDGMENT
171. In addition, it agreed with both the ISC and the Anderson report
that there should be different types of warrant for the interception and
acquisition of communications and related data. It was proposed that
warrants for a purpose relating to the detection or prevention of serious and
organised crime should always be authorised by a Judicial Commissioner,
while warrants for purposes relating to national security should be
authorised by the Secretary of State subject to judicial review by a Judicial
Commissioner.
172. With regard to the IPT, the ISR recommended open public
hearings, except where it was satisfied private or closed hearings were
necessary in the interests of justice or other identifiable public interest.
Furthermore, it should have the ability to test secret evidence put before it,
possibly through the appointment of Special Counsel. Finally, it agreed with
the ISC and Anderson reports that a domestic right of appeal was important
and should be considered in future legislation.
5. Report of the Bulk Powers Review
173. The bulk powers review was set up in May 2016 to evaluate the
operational case for the four bulk powers contained in what was then the
Investigatory Powers Bill (now the Investigatory Powers Act 2016: see
paragraphs 195-201 below). Those powers related to bulk interception and
the bulk acquisition of communications data, bulk equipment interference
and the acquisition of bulk personal datasets.
174. The review was again carried out by the Independent Reviewer of
Terrorism Legislation. To conduct the review he recruited three team
members, all of whom had the necessary security clearance to access very
highly classified material, including a person with the necessary technical
background to understand the systems and techniques used by GCHQ, and
the uses to which they could be put; an investigator with experience as a
user of secret intelligence, including intelligence generated by GCHQ; and
senior independent counsel with the skills and experience to challenge
forensically the evidence and the case studies presented by the security and
intelligence services.
175. In conducting their review, the team had significant and detailed
contact with the intelligence services at all levels of seniority as well as the
relevant oversight bodies (including the IPT and Counsel to the Tribunal in
the relevant cases), NGOs and independent technical experts.
176. Although the review was of the Investigatory Powers Bill, a
number of its findings in respect of bulk interception are relevant to the case
at hand. In particular, having examined a great deal of closed material, the
review concluded that it was an essential capability: first, because terrorists,
criminal and hostile foreign intelligence services had become increasingly
sophisticated at evading detection by traditional means; and secondly,
because the nature of the global Internet meant that the route a particular