Big Brother Watch and Others v UK
On Tuesday, our case against UK Government surveillance was heard in the Chamber of the European Court of Human Rights.
It is really quite exceptional for a case to be given a full hearing – most proceedings are dealt with in writing – but this demonstrates how important the issue of state surveillance is deemed by the Court.
In addition to setting out their arguments, both sides faced a number of questions from the Court’s judges, although they appeared to challenge elements of the Government’s case significantly more.
The UK Government’s case
The UK Government claimed that the bulk interception and surveillance powers at issue in this legal claim were proportionate, in accordance with the law and subject to “extensive multi-layered safeguards”.
Focussing on the necessity of such surveillance powers in the context of a “global threat” of terrorism, their legal team argued that the right to privacy could be limited in the context of the right to life and the safety of citizens. They used examples of potential threats which had been thwarted by the bulk interception powers allowed by the UK Government and utilized by the UK intelligence agencies, GCHQ, MI5 and MI6.
In responding to the judges, the Government’s representative admitted that there was no independent body overseeing the intelligence analysts, and argued that although there was indeed only a single certificate under RIPA, with a very general scope, which allowed communication interception, this was reviewed and updated every 6 months. They also attempted to argue that the Court should not consider the current UK surveillance regime, under the Investigatory Powers Act, as it was irrelevant to the case.
The Applicants’ case (Big Brother Watch & Others, 10 Human Rights Organisations and The Bureau of Investigative Journalism)
The Applicants’ legal team, headed by Dinah Rose QC and Helen Mountfield QC, argued that the surveillance regime run by the UK intelligence agencies did not just intercept and analyse people’s communications data, but that they also retained and stored data on millions.
They argued that while the Government claimed “trust us and we’ll keep you safe”, the storage of the metadata of communications was an intrusion into the most intimate aspects of a person’s life, and GCHQ intercepts and uses these communications even from people who are of “no intelligence interest”.
They also pointed out that the current law made a meaningless distinction between communications deemed “internal” or “external”: as many communications between people in the UK pass through servers in other countries, such as the US, this means they are considered “external”, and therefore lack the legal safeguards afforded to “internal” communications.
The Applicants’ representatives also warned that widespread interference by the UK Government with people’s communications without a clear legal framework was likely to have “a chilling effect on important political communications.”
The Applicants also called for:
- Prior judicial authorisation of interception warrants;
- Objective evidence of a specific crime (as a necessity for a surveillance warrant); and
- Notification to the person who has been put under surveillance
The Applicants had the final word, stating that threats to national security did not render the UK immune to the standards of the European Convention on Human Rights, and that all the Applicants wanted was a legal framework to ensure the UK intelligence agencies did no more than was truly necessary and proportionate.
The judgment is likely to be some months. Fingers crossed.
Here’s the link to a full video of the hearing:
If you want to know more about the case and its history, see our previous blog: