Legal Cheek

London’s top barristers descend on Strasbourg as government surveillance case reaches European court

Are we being unlawfully spied on?

A host of organisations unimpressed with the UK government’s intrusive surveillance of its citizens will appear before the European Court of Human Rights (ECtHR) today to argue the law breaches our rights.

The Grand Chamber will hear a trio of cases alongside one another, the first fittingly named Big Brother Watch after one of the three NGOs spearheading the challenge.

This case was first brought in 2013 in response to the Edward Snowden leak. Though perhaps more acutely felt across the pond, former CIA agent Snowden’s actions did reveal UK intelligence agencies were running a mass surveillance and communications interception programme called Tempora. This programme allowed GCHQ to intercept and store internet data entering and leaving the country.

Big Brother Watch and friends, using the Snowden leak as ammunition, hope to challenge the indiscriminate surveillance of UK citizens and the bulk collection of their personal information and communications. They believe there is “no sufficient legal basis” for the Regulation of Investigatory Powers Act 2000, and as a result it infringes UK citizens’ Article 8 right (the right to privacy).

Defending its position, a government spokesperson said in the run up to today’s hearing:

“The interception of a communication as it flows through a fibre optic cable does not entail a substantial invasion of privacy… unless that communication is selected for examination: in other words, unless a human examines it or may potentially examine it.”

Both sides will be represented by a dream team of UK barristers. Over on the government’s side, readers will recognise lead counsel James Eadie QC as the Blackstone Chambers barrister who defended David Davis MP in the Gina Miller Article 50 case. The applicants are being represented by Matrix Chambers’ Helen Mountfield QC, Blackstone Chambers’ Dinah Rose QC, Matrix Chambers’ Matthew Ryder QC and others.

A lot of lawyers, and a lot of parties too. The Big Brother Watch case will be heard in Strasbourg alongside two more — one brought by the Bureau of Investigative Journalism, and the other by ‘10 Human Rights Organisations’. These organisations are: the American Civil Liberties Union, Amnesty International, Bytes for All, the Canadian Civil Liberties Association, the Egyptian Initiative for Personal Rights, the Hungarian Civil Liberties Union, the Irish Council for Civil Liberties, the Legal Resources Centre, Liberty, and Privacy International. Applicants in all three cases believe that their communications may have been intercepted by either UK or US intelligence services.

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A number of organisations have also been granted leave to intervene in written proceedings. These interveners include the Law Society of England and Wales and the International Commission of Jurists.

The sheer number of parties and interveners in this case reflects the importance of and interest in privacy and surveillance law of late, perhaps largely thanks to the recent inception of the Investigatory Powers Act. Known as the Snoopers’ Charter, this act was passed in 2016 and gives the state more sweeping powers to retain private communications data.

Though the government has attempted to justify the new legislation as pivotal in the fight against terrorism, senior lawyers have described it as “unnecessary” and “not fit for purpose”. It’s understood today’s ECtHR case may have a big impact on the new Investigatory Powers Act.

The case will be heard by seven judges in the ECtHR’s Grand Chamber, these judges hailing from: Armenia, Croatia, the Czech Republic, Finland, Greece, San Marino, and the UK. The case is likely to run for several days.