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The Grand Chamber of the European Court of Human Rights has today handed down judgment in which it has considered the compatibility of the UK’s bulk surveillance regime with the European Convention on Human Rights (“ECHR”).

The linked complaints were brought by organisations and individuals that campaign on issues relating to civil liberties and journalists’ rights. The complaints, which were triggered by the 2013 Snowden revelations, concerned three different surveillance regimes: the UK Government’s (1) bulk interception of communications (i.e. the tapping into and storage of volumes of data drawn from fibre optic cables); (2) obtaining of communications data from communication service providers; and (3) receipt of intercepted material from foreign governments. The applicants argued that the nature of their activities meant that their electronic communications and / or data were likely to have been intercepted by the UK intelligence services or obtained by those services from communications service providers or foreign intelligence agencies.

The Court held that:

(1) A bulk interception regime did not in and of itself violate the ECHR [340]. However, such a regime must be subject to certain “end-to-end safeguards”, meaning that, at the domestic level, an assessment of proportionality should be made at each stage of the process of the necessity and proportionality of the measures being taken; that bulk interception should be subject to independent authorisation at the outset, when the object and scope of the operation are being defined; and that the operation should be subject to supervision and independent ex post facto review [350]-[360]. The UK’s bulk interception regime did not contain sufficient “end-to-end” safeguards to provide adequate and effective guarantees against arbitrariness and the risk of abuse. In particular, it was deficient in the following respects: (i) there was an absence of independent authorisation, (ii) the failure to include the categories of selectors in the application for a warrant, and (iii) the failure to subject selectors linked to an individual to prior internal authorisation. Accordingly the regime violated Articles 8 and 10 ECHR [377]-[383], [425], [451]-[458];

(2) The UK’s regime for obtaining communications data from communication service providers also violated Articles 8 and 10 ECHR [521]-[522], [527]-[528];

(3) The regime by which the UK could request intelligence from foreign governments and / or intelligence agencies was subject to adequate safeguards and so did not violate Articles 8 or 10 ECHR [500]-[516].

The Court’s findings relate to the provisions of the Regulation of Investigatory Powers Act 2000 (since replaced by the Investigatory Powers Act 2016) but have wider consequences for the operation of such regimes. In particular, the Court updated the six minimum safeguards previously held to be applicable in Weber and Saravia v Germany (dec.), no. 54934/00, ECHR 2006‑XI, in the light of intervening technological developments.

A copy of the judgment is available here.

Ben Jaffey QC, Ravi Mehta, Flora Robertson and Gayatri Sarathy acted for the applicants.

Sir James Eadie QC acted for the Government.

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