The Court found that the UK's wide and secretive surveillance
laws are "not in accordance with the law" and that they violate the
right to privacy guaranteed by the European Convention on Human
Rights.
Civil liberties groups Liberty and the Irish Council for Civil
Liberties took the UK Government to the Court over allegations that
their communications had been intercepted between 1990 and
1997.
The groups said that interceptions of legally privileged and
confidential information took place, and that they had complained
unsuccessfully to UK courts, the Interception of Communications
Tribunal, the Director of Public Prosecutions and the Investigatory
Powers Tribunal.
The case centred on the 1985 Interception of Communications Act,
which has since been superseded by the Regulation of Investigatory
Powers Act (RIPA).
"Section 3(2) of the 1985 Act allowed the British authorities
extremely broad discretion to intercept communications between the
United Kingdom and an external receiver," said a Court statement
explaining the decision.
"Indeed, that discretion was virtually unlimited. Warrants under
section 3(2) of the 1985 Act covered very broad classes of
communications. In their observations to the Court, the British
Government accepted that, in principle, any person who sent or
received any form of telecommunication outside the British Islands
during the period in question could have had their communication
intercepted under a section 3(2) warrant," it said.
The Court recognised that the regulation of surveillance had to
have an element of secrecy about it, but said that the UK did not
offer UK citizens enough information about how much surveillance
was taking place.
"Although during the relevant period there had been internal
regulations, manuals and instructions to provide for procedures to
protect against abuse of power, and although the Commissioner
appointed under the 1985 Act to oversee its workings had reported
each year that the 'arrangements' were satisfactory, the nature of
those 'arrangements' had not been contained in legislation or
otherwise made available to the public," it said.
"The Court considered that the domestic law at the relevant time
had not indicated with sufficient clarity, so as to provide
adequate protection against abuse of power, the scope or manner of
exercise of the very wide discretion conferred on the State to
intercept and examine external communications. In particular, it
had not set out in a form accessible to the public any indication
of the procedure to be followed for examining, sharing, storing and
destroying intercepted material," said the Court.
"The interference with the applicants’ rights had not therefore
been 'in accordance with the law', in violation of Article 8," of
the Convention on Human Rights, it said.
"While secret surveillance is a valuable tool, the mechanisms
for intercepting our telephone calls and emails should be as open
and accountable as possible, and should ensure proportionate use of
very wide powers," said Alex Gask, Liberty’s legal officer.
“The Court has found that the United Kingdom’s relatively
sophisticated rules on data interception have failed to prevent
unlawful interference with privacy rights. This has clear
implications for many other Council of Europe member states,
including Ireland," said Mark Kelly, director of the Irish Council
for Civil Liberties.
