25 May 2021: judgment given by Grand Chamber of ECtHR in Big Brother Watch and ors v United Kingdom: Julian Milford QC of 11KBW for the UK Government

Cases

The Grand Chamber of the ECtHR has today (25 May 2021) given a 203-page judgment in the important Big Brother Watch case, in which the applicants challenged the UK’s regimes for bulk interception of communications and the receipt of intelligence from foreign intelligence services as contrary to Articles 8 and 10 ECHR. The Court concluded that a bulk interception regime may in principle be compatible with the ECHR. The State had a wide margin of appreciation in determining what type of interception regime was necessary, but a narrower margin in assessing the adequacy of safeguards within such a regime. The ECtHR set down a new conceptual framework for assessing compatibility of such safeguards with Article 8 ECHR against 8 listed criteria. It found that the UK’s regime (as at 7 November 2017) had been incompatible with some of those criteria: most particularly, because although the regime was subject to effective independent oversight, (i) it did not involve independent authorisation of warrants; (ii) the categories of selectors used for intercept material were not identified in the material put before the Secretary of State for warrant applications; and (iii) “strong selectors” for intercept material, linked to identifiable individuals, were not subject to prior internal authorisation. The Grand Chamber also concluded that under Article 10 ECHR, selectors used to identify a journalistic source or confidential journalistic material must be subject to judicial or other independent authorisation; and if confidential journalistic material were knowingly retained, even if it had not been deliberately selected for examination, that too required independent authorisation. The Grand Chamber held that the UK’s regime for receiving intelligence material from foreign states was compatible with the Convention.