On Tuesday 7 November, three joined cases brought by civil liberties and human rights organisations challenging UK Government surveillance will be heard in the Grand Chamber of the European Court of Human Rights (ECtHR).
Big Brother Watch and Others v UK will be heard alongside 10 Human Rights Organisations and Others v UK and the Bureau of Investigative Journalism and Alice Ross v UK, four years after the initial application to the ECtHR.
Big Brother Watch, English PEN, Open Rights Group and Dr Constanze Kurz made their application to the Court in 2013 following Edward Snowden’s revelations that UK intelligence agencies were running a mass surveillance and bulk communications interception programme, TEMPORA, as well as receiving data from similar US programmes, PRISM and UPSTREAM, interfering with UK citizens’ right to privacy.
The case questions the legality of the indiscriminate surveillance of UK citizens and the bulk collection of their personal information and communications by UK intelligence agencies under the Regulation of Investigatory Powers Act (RIPA). The UK surveillance regime under RIPA was untargeted, meaning that UK citizens’ personal communications and information was collected at random without any element of suspicion or evidence of wrongdoing, and this regime was effective indefinitely.
The surveillance regime is being challenged on the grounds that there was no sufficient legal basis, no accountability, and no adequate oversight of these programmes, and as a result infringed UK citizens’ Article 8 right to a private life.
In 2014, the Bureau of Investigative Journalism made an application to the ECtHR, followed by 10 Human Rights Organisations and others in 2015 after they received a judgment from the UK Investigatory Powers Tribunal. All three cases were joined together, and the Court exceptionally decided that there would be a hearing.
The result of these three cases has the potential to impact the current UK surveillance regime under the Investigatory Powers Act. This legal framework has already been strongly criticized by the Court of Justice of the European Union in Watson. A favourable judgment in this case will finally push the UK Government to constrain these wide-ranging surveillance powers, implement greater judicial control and introduce greater protection such as notifying citizens that they have been put under surveillance.
Daniel Carey of Deighton Pierce Glynn, solicitor for Big Brother Watch, Open Rights Group, English PEN and Constanze Kurz, said:
Historically, it has required a ruling from this Court before improvements in domestic law in this area are made. Edward Snowden broke that cycle by setting in motion last year’s Investigatory Power Act, but my clients are asking the Court to limit bulk interception powers in a much more meaningful way and to require significant improvements in how such intrusive powers are controlled and reported.
Antonia Byatt, Interim Director of English PEN, said:
More than four years since Edward Snowden’s revelations and nearly one year since the Investigatory Powers Act was passed, this is a landmark hearing that seeks to safeguard our privacy and our right to freedom of expression.
The UK now has the most repressive surveillance legislation of any western democracy, this is a vital opportunity to challenge the unprecedented erosion of our private lives and liberty to communicate.
Griff Ferris, Legal Researcher at Big Brother Watch, said:
This case raises long-standing issues relating to the UK Government’s unwarranted intrusion into people’s private lives, giving the intelligence agencies free reign to indiscriminately intercept and monitor people’s private communications without evidence or suspicion.
UK citizens who are not suspected of any wrongdoing should be able to live their lives in both the physical and the digital world safely and securely without such Government intrusion.
If the Court finds that the UK Government infringed UK citizens’ right to privacy, this should put further pressure on the Government to implement measures to ensure that its current surveillance regime doesn’t make the same mistakes.
Jim Killock, Executive Director of Open Rights Group, said:
Mass surveillance must end. Our democratic values are threatened by the fact of pervasive, constant state surveillance. This case gives the court the opportunity to rein it back, and to show the British Government that there are clear limits. Hoovering everything up and failing to explain what you are doing is not acceptable.
Notes to editors
The ECtHR links to the three cases, listed on 7 November 2017 can be found here.