18/03/2026

Written by: Prof. Philip Leach

Background

Big Brother Watch and 14 other civil liberty groups and individuals (including ACLU, Amnesty International, English Pen and Liberty) sought to challenge the scope and magnitude of the electronic surveillance programmes operated by the UK Government (through GCHQ), in the aftermath of revelations made by Edward Snowden in 2013 about the surveillance being carried out by both US and UK intelligence service. The programmes enabled the UK authorities to, amongst other things, bulk intercept communications data.

The applications were initially brought in respect of the Regulation of Investigatory Powers Act 2000 (“RIPA”), which was superseded by the Investigatory Powers Act 2016 (“IPA”). The Applicants invoked Articles 8 and 10 of the European Convention on Human Rights (“ECHR”), arguing that the interferences occasioned by the regime were not in accordance with the law and undermined journalists’ right to protect their sources.

Decision

The Grand Chamber found a number of “fundamental deficiencies” in the UK’s bulk interception regime, referred to as the “section 8(4) regime”, namely the lack of independent authorisation, the failure to include categories of selectors in the application for a warrant, and the failure to subject selectors linked to an individual to prior internal authorisation.  There were also insufficient protections for confidential journalistic material under electronic surveillance schemes. Thus, RIPA had not contained sufficient “end-to-end safeguards” to provide adequate and effective guarantees against arbitrariness and the risk of abuse.

The Grand Chamber also found the acquisition of communications data from communications service providers under Chapter II of RIPA was deficient because it permitted access to retained data for the purpose of combatting crime, rather than “serious crime”, and such access was not subject to prior independent review.

As a consequence, the Court unanimously held that there were violations of Articles 8 and 10 ECHR in respect of both the section 8(4) regime (as regards interception warrants) and the Chapter II regime (concerning requests for communications data from communications service providers). However, there was no violation of Articles 8 or 10 in respect of the receipt of intelligence from foreign intelligence services (by 12 votes to five). The applicants did not claim damages.

Comment

Although there had been many ECtHR precedents concerning targeted surveillance carried out by governments (such as Roman Zakharov v Russia), this was a landmark judgment concerning bulk interception, which the Court noted is different from targeted surveillance as it is generally used for foreign intelligence gathering and the identification of new threats from both known and unknown actors.

The decision permits states to carry out bulk surveillance, albeit subject to much more rigorous standards than had been previously imposed. Interestingly, the Court acknowledged bulk interception to be a gradual process in which the degree of interference with individuals’ Article 8 rights increases as the process progresses.

Given its significance, the case attracted a phalanx of third-party interveners including three governments, a UN Special Rapporteur, the Law Society, the Equality and Human Rights Commission and various international NGOs. Each of the intervening governments (and the UK) argued strongly that bulk interception is of vital importance in identifying threats to national security.

Prior to consideration of this case by the Grand Chamber, Parliament passed the IPA, which introduced a ‘double lock’ which requires prior approval by a minister and senior judge (in the Investigatory Powers Commissioner’s Office). As a result of this decision, the Investigatory Powers Act 2016 (Remedial) Order 2024 further amended parts of the IPA to bring it into line with the judgment.

Applications for a bulk interception warrant must specify all of the operational purposes for which any material obtained under a warrant may be selected for examination. Furthermore, operational changes now require that when an analyst intends to target strong selectors referable to an identifiable individual who has not previously been approved, this must first be confirmed by an ‘approver’ to verify that the targeting is necessary and proportionate.

The 2024 Order strengthened journalistic safeguards in the IPA by ensuring that approval from the Investigatory Powers Commissioner is obtained before any criteria are used with the purpose of selecting material for examination that is confidential journalistic material or a source of journalistic material. The retention of such material must also be authorised by the Investigatory Powers Commissioner.

The Data Retention and Acquisition Regulations 2018 further enhanced the safeguards by amending the IPA to introduce a serious crime threshold and independent authorisation of relevant communications data requests.

Matrix member: Helen Mountfield KC acted for the applicants