One of the key rationales underpinning the adoption of the Human Right Act (HRA) 1998 was the promise of ‘bringing rights home’.[2] The drive to give domestic effect to the European Convention on Human Rights (ECHR) was premised on the idea that individuals should be able to challenge state action that violates their ECHR rights before UK courts and tribunals. The transformative impact of the HRA in this regard is evidenced by the frequency with which ECHR rights challenges have been brought before domestic courts in the past 20 years. Additionally, since the enactment of the HRA, there has been a steady decline in judgments from the European Court of Human Rights (ECtHR) finding the UK in violation of the ECHR.[3]
This post traces the impact of the HRA in providing individuals with a domestic remedy for ECHR violations perpetrated by the Intelligence and Security services (henceforth, the Services). It focuses in particular on unlawful interception of communications and surveillance. While it would be wrong to suggest that the HRA has been an unmitigated success in keeping the services accountable in this regard, it has arguably become indispensable in providing individuals with the legal means to mount domestic challenges against arbitrary state interference with their fundamental rights. The post concludes that any weakening of the domestic protections afforded by the HRA will make the Services less accountable to the public, potentially deprive individuals of a domestic remedy for unlawful interferences with their rights, and invite further international supervision by the ECtHR. On this basis, the domestic framework for securing that the actions of the Services comply with the ECHR should be strengthened rather than weakened.
Legal accountability for state surveillance pre-HRA
Tasked with the duty of ‘defending the realm’, the Services have been granted extensive powers the exercise of which inevitably interferes with rights. For instance, the various forms of surveillance and interception of communications in which the services engage have been found to interfere with the right to private and family life (Article 8 ECHR) and, in certain instances, freedom of expression (Article 10 ECHR).[4] Both these rights are qualified and subject to restrictions. For an interference to be lawful, it must satisfy the test set out in paragraph 2 of each of these provisions. Specifically, any interference with these rights must be prescribed by law, serve a legitimate aim, and be necessary in a democratic society.
The first part of this test in particular, put into question the compatibility with the Convention of the Services’ actions pre-HRA. The ‘prescribed by law’ test, requires the existence of an accessible and foreseeable legal framework that sets out the conditions under which these restrictions to the right can be exercised. However, until the mid-1980s there was no statutory framework setting out the powers of the Services. As a result, there was little public accountability for their actions and a concomitant lack of meaningful remedies for those who without good reason had been subjected to surveillance. This was compounded by the fact that there was no right to privacy recognised in domestic law and the rights protected in the ECHR had not been given domestic effect. Potential victims of human rights violations were thus unable to rely on ECHR rights to challenge government action before UK courts. Consequently, before the HRA came into force, the sole available recourse for potential victims of rights violations due to unlawful state surveillance was to apply to the ECtHR. The landmark judgment in Malone v. UK[5] was the first to find the UK in violation of Article 8 ECHR for its failure to provide an accessible and transparent legal basis for state surveillance and the interception of communications. In response to this judgment, legislation was enacted for the first time publicly setting out the powers of the Services.[6]
The landscape post-HRA
In addition to legislation setting out the framework for surveillance, the enactment of the HRA created a further duty on all public authorities to act compatibly with ECHR rights.[7] It also equipped courts with the capacity to offer remedies where violations occur.[8] When it came to providing redress for ECHR rights violations perpetrated by the Services, it was considered important to establish a specialised Tribunal to handle such cases rather than to allow them to proceed through the ordinary court system. This was in recognition of the secretive nature of the Services’ operation, and the need to protect national security. The Investigatory Powers Tribunal (IPT) was established under the Regulation of Investigatory Powers Act 2000 (s 65) for this purpose. The Rules regulating its procedures took effect on the same day as the HRA came into force.[9] These specialised procedures (for instance, the applicants have no right to an oral hearing, the IPT does not publish judgments in their entirety) raised credible concerns particularly as to their compliance with the right to a fair trial protected under Article 6 ECHR. When these procedures were challenged before the ECtHR, it found that IPT framework conformed to Article 6 ECHR, on the basis that the ‘procedural restrictions were proportionate to the need to keep secret sensitive and confidential information and did not impair the very essence of the applicant’s right to a fair trial’.[10]
The contribution of the IPT has been significant. It has provided redress to individual applicants who have been subjected to surveillance unlawfully,[11] but also on occasion found that aspects of the general legislative framework on surveillance violate the ECHR. For instance, in separate cases in 2015 the IPT held that intelligence sharing between the UK and the United States was in contravention of Articles 8 and 10 ECHR until December 2014,[12] that the interception of legally privileged information shared between the applicant and his legal representatives violated Article 8 ECHR,[13]and that there were insufficient safeguards in the law to prevent the police from intercepting the communications of journalists to identify their sources, thus breaching Article 10 ECHR.[14] It is notable that in all three cases, the Government took steps to amend the framework and ensure it was ECHR-compliant following the IPT’s judgment.
In light of this, after an initial refusal to accept that the IPT constitutes an effective remedy that applicants need to exhaust before applying in the ECtHR,[15] in Big Brother Watch and others v. UK[16] the ECtHR accepted for the first time that
"the IPT has shown itself to be an effective remedy which applicants complaining about the actions of the intelligence services and/or the general operation of surveillance regimes should first exhaust in order to satisfy the requirements of Article 35 § 1 of the Convention."[17]
The Big Brother Watch judgment, among other issues, concerned the powers of the Secretary of State to issue warrants allowing for the indiscriminate, rather than targeted, interception of ‘external communications’ by the Services.[18] The meaning of external communications includes someone within the UK accessing a website whose server is located overseas, an individual in the UK posting something on their social media, as social media servers are also mostly located overseas, or someone in the UK using a cloud storage provider.[19] The impact of such warrants on the right to privacy of potentially millions both inside and outside the UK is obvious. The ECtHR held that the law authorising these warrants lacked the necessary safeguards and, as a consequence, the interference with Article 8 did not meet the ‘prescribed by law’ requirement. While this finding of an Article 8 violation is a welcome development, the ECtHR also determined in this judgment that establishing such a bulk interception regime fell within the state’s margin of appreciation as long as it fulfilled the Article 8(2) criteria. It remains to be seen whether the ECtHR’s Grand Chamber will reverse the Chamber’s judgment in this regard.
How would a potential weakening of the domestic standards for the protection of ECHR rights impact the accountability of the Services?
Based on the outcome of Big Brother Watch, it is important not to paint too rosy a picture in relation to securing the legal accountability of the Services. Concerns remain in relation to the IPT’s efficacy in protecting victims of human rights violations in general and state surveillance in particular.[20] However, one cannot deny the progress that has been made under the HRA by allowing domestic judges to provide domestic solutions for human rights violations by the Services, even through the special procedures under which the IPT operates. Weakening the HRA framework is likely to reverse this progress for all courts and tribunals including the IPT.
The recently announced Independent Review of the HRA,[21] coincides with the adoption of the EU-UK Trade and Cooperation Agreement which requires the UK to remain a member of the ECHR.[22] This means that a watered down framework for the domestic protection of ECHR rights that lessens the capacity of domestic courts and tribunals to provide remedies, will lead purported victims of violations to turn to the ECtHR more often. Additionally, less robust domestic human rights standards increase the chance of the ECtHR finding the UK in violation of its international obligations. Therefore, any weakening of the domestic framework for protecting rights, not only risks making the Services less accountable, but also makes it more likely for the UK to be subject to increased international supervision and scrutiny by the ECtHR in sensitive areas such as national security.
Thus, if the impetus of the review is to lessen the domestic influence of the ECtHR, then watering down the HRA will have the opposite effect. If the Independent Review is driven by scepticism towards the judiciary and its purported ‘power grab’ against the executive or Parliament, then limiting domestic courts’ powers to provide an effective remedy will mean that it will be the international judge who will be tasked with carrying out this function. In light of this, efforts should be made to strengthen rather than weaken the HRA in relation to actions of the Services.
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