European Court of Human Rights’ Grand Chamber to consider UK’s bulk surveillance powers for first time

‘We need to be protected from intrusive and over-powerful states that think nothing of secretly harvesting and sharing vast amounts of our private data and communications’ - Lucy Claridge

The UK Government’s bulk surveillance powers will be examined by the highest chamber of the European Court of Human Rights this week, the latest stage in a long-running legal battle over the UK’s unlawful use of previously-secret surveillance powers and its sharing of massive amounts of private communications.

On Wednesday (10 July), the Grand Chamber of the European Court of Human Rights - the court’s highest body - will hear arguments from Amnesty International, Liberty, Privacy International and other human rights organisations from four continents over the unlawfulness of the UK’s bulk surveillance practices. 

The case is the culmination of six years of revelations and legal challenges following Edward Snowden’s disclosure in 2013 of how the UK’s GCHQ intelligence agency was secretly intercepting and processing millions of private communications of ordinary people on a daily basis, and - without a clear legal foundation or proper safeguards - sharing data with the USA’s National Security Agency, as well as other countries’ intelligence agencies. 

Last September, a lower chamber of the European Court of Human Rights ruled that UK laws enabling mass surveillance were unlawful, violating rights to privacy and freedom of expression. The court observed that the UK’s regime for authorising bulk interception was incapable of keeping the “interference” to what is “necessary in a democratic society”.

However, Amnesty and others then asked the court’s Grand Chamber to go further by entirely rejecting the UK’s overtly bulk surveillance regime. 

Lucy Claridge, Amnesty International’s Director of Strategic Litigation, said: 

“Exposed to the light of day, some of the UK’s industrial-scale surveillance practices have already been found unlawful, but Europe’s highest human rights court could now decide to entirely do away with dragnet surveillance and unfettered transnational sharing of millions of people’s private data.

“We need to be protected from intrusive and over-powerful states that think nothing of secretly harvesting and sharing vast amounts of our private data and communications.”

Case before the Grand Chamber

The Grand Chamber has been asked to rule that the mass interception, processing and storage of private communications is not compatible with the rights to privacy and freedom of expression.  Should it decide to endorse last year’s ruling, the Grand Chamber has been asked to update “minimum safeguards” over government-led surveillance - given “the state’s ability to extract, on an enormous scale, sensitive and personal information from intercepted material”. The Grand Chamber has also been asked to rule that the UK’s intelligence-sharing arrangements with foreign intelligence agencies are inadequate and violate people’s rights to privacy and freedom of expression.

Parties in the case

The case is the culmination of three original legal challenges from the following groups and individuals: 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; Big Brother Watch, Open Rights Group, English Pen and Dr Constanze Kurz; the Bureau of Investigative Journalism and Alice Ross.

Amnesty and nine other applicants are represented by Ben Jaffey QC and Gayatri Sarathy of Blackstone Chambers, and David Heaton of Brick Court Chambers.  

Snowden’s revelations

The present case began in 2013, following Edward Snowden’s revelations that GCHQ was secretly intercepting, processing and storing data concerning millions of people’s private communications, even when those people were clearly of no intelligence interest (the “Tempora” programme). Snowden also revealed that the Government was accessing communications and data collected by the USA’s National Security Agency and other countries’ intelligence agencies. All of this was taking place without public consent or awareness, with no basis in law and with no proper safeguards. The information collected and stored by the Government can reveal the most intimate aspects of a person’s private life - where they go, who they contact, which internet sites they visit and when.

In 2014, the Investigatory Powers Tribunal - the highly secretive UK court which hears claims against GCHQ, MI5 and MI6 - ruled that these practices may in principle comply with the UK’s human rights obligations. This was the finding subsequently challenged in the European Court of Human Rights, which partly ruled against the UK last year.

In the course of its proceedings, the Investigatory Powers Tribunal found that UK intelligence agencies had unlawfully spied on the communications of Amnesty and South Africa’s Legal Resources Centre. It also found that UK intelligence-sharing with the US, which had been governed under a secret legal framework, was unlawful until disclosed during the proceedings.