Liberty & Ors v Secretary of State for Foreign and Commonwealth Affairs and Ors [2015] UKIPTrib 13 77-H

Case Name: Liberty & Ors v Secretary of State for Foreign and Commonwealth Affairs and Ors 

What is this case about? This case involved the Edward Snowden leaks and revelations surrounding the US National Security Agency’s communications interception programme. Liberty and other NGOs cited breaches of Articles 8 and 10 ECHR as a result of the UK authorities’ reception, storage, use and transmission of material intercepted and shared with them by their US counterparts.

Under the NSA’s programme, data from private communications between individuals in the UK was harvested as a result of its passage through servers located in the US. That information could then be shared with the UK, notwithstanding that authorities here would have needed a warrant under the Regulation of Investigatory Powers Act 2000 to access it themselves.

The Tribunal found that the UK authorities had unlawfully interfered with Articles 8 and 10. In Kennedy v United Kingdom, the Strasbourg Court had held that in order for interferences to be made “in accordance with law”, three requirements had to be satisfied: 1) the impugned measure must have some basis in law; 2) the relevant domestic law had to be compatible with the rule of law and accessible to the person concerned; and 3) the person affected had to be able to foresee the consequences of the domestic law for him.

Yet those stringent requirements were translated in the IPT as follows:

• It was sufficient that ‘appropriate rules or arrangements existed and were publicly known and confirmed to exist’. The IPT found that this was satisfied by the presence of internal guidelines and policies.
• The content of the rules only had to be ‘sufficiently signposted such as to give an adequate indication’.
• The arrangements simply needed to be subject to ‘proper oversight’ – and the existence of an Interception of Communications Commissioner and of the IPT itself was enough.

So while some civil liberties campaigners heralded this judgment as a significant victory over GCHQ, it seems that it might not have been the progressive a result it first appeared.