The Evolution Of Elucidation: The Snowden Cases Before The Investigatory Powers Tribunal
| Published date | 01 July 2022 |
| Author | Bernard Keenan |
| Date | 01 July 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12713 |
bs_bs_banner
Modern Law Review
DOI:10.1111/1468-2230.12713
The Evolution Of Elucidation: The Snowden Cases
Before The Investigatory Powers Tribunal
Bernard Keenan∗
In 2018 the European Court of Human Rights found that the UK’s Investigatory Powers Tri-
bunal is an ‘eective remedy’when it comes to reviewing the compatibility of the UK’sdomes-
tic legal framework governing the interception of communication and other communications
surveillance powers with the requirements of the European Convention on Human Rights. In
particular, the Court praised the Tribunal’s ‘elucidatory function’,which it perfor med during a
series of cases that arose in the aftermath of Edward Snowden’s disclosures in 2013. This article
analyses and historicises the elucidatory function by comparing it with previous cases where
the High Court and the IPT resolved questions of law arising from similar problems. Using
insights derived from systems theory, the article argues that the elucidatory function evolved as
a containment measure in response to unexpected crises of control over classied information.
The procedure resolvesconicts between secrecy,secur ity,and the publicity required by the law
itself.
In Big Brother Watch vUK (Big Brother Watch), the First Chamber of the Euro-
pean Court of Human Rights (ECtHR) gave judgment on a joined application
challenging the compatibility of the UK’s domestic legal framework with the
requirements of the European Convention on Human Rights (ECHR). The
applications stemmed from the 2013 revelations by American whistle-blower
Edward Snowden of surveillance powers operated by the UK’s signals intelli-
gence agency, Government Communications Headquarters (GCHQ).1Rely-
ing on Article 8 (the right to respect for family and pr ivate life), the applicants
challenged the adequacy of the UK’s legal regime concerning those powers,
specically in respect of bulk interception of communications,intelligence shar-
ing with foreign powers,and the acquisition of metadata from communications
∗Lecturer in the School of Law, Birkbeck College.This article began during my doctoral studies as a
set of observations of open hearings before the Investigatory Powers Tribunal. I wish to thank Jude
Bunting, Eric Kind, and Ben Jaey QC for their insights into the Tribunal’s processes.Thanks also to
Alain Pottage, Daniella Lock, Ewan Smith, Bo Bottomley,and Peter Goodrich for their valuable com-
ments on earlier drafts and to the anonymous reviewers for their excellent feedback and suggestions.
(All URLs last accessed 22 November 2021).
1Big Brother Watchand Others vthe United Kingdom [2018] ECHR 722; the joined cases were Bureau
of Investigative Journalism and Alice Ross vthe United Kingdom (no 62322/14) and 10 Human Rights
Organisations and Others vthe United Kingdom (no 24960/15). For a full analysis,see K. Hughes,
‘Mass Surveillance and the European Court of Human Rights’(2018) 6 European Human Rights
Law Review 589.
© 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited. (2022)85(4) MLR 906–937
Bernard Keenan
service providers.Two of the three applicants complained about the lack of spe-
cic protection for journalists and NGOs under Article 10 (freedom of expres-
sion).The domestic regime for challenging such measures before the specialised
Investigatory Powers Tribunal (IPT) was challenged under Article 6 (the right
to a fair trial), while Article 14 (prohibition of discrimination) was invoked in
combination with Articles 8 and 10 because the bulk interception regime is
more likely to intercept and examine the communications of people located
outside the British Islands than of those within.
In its Chamber judgment of 13 September 2018, the Court found by a
majority that bulk interception powers are in principle compatible with the
Convention, but that the UK’s regime in force at the time of the applications
fell short of the requirements of Article 8. The law had provided insucient
oversight of the process for selecting bearers for interception and selecting in-
tercepted communications and metadata for examination.Similarly, the regime
for obtaining metadata from communication service providers contained inad-
equate safeguards. Article 10 was violated as there were insucient safeguards
for the protection of condential journalistic material. The intelligence shar-
ing regime was held to comply with the Convention,and the complaints un-
der Articles 6 and 14 were unanimously held to be ill-founded. The Grand
Chamber’s judgment of May 2021 largely mirrored the First Chamber’s nd-
ings, holding that the bulk interception regime was decient, but intelligence
sharing had sucient safeguards in place to protect against abuse. Because the
Article 6 complaint was resolved unanimously by the First Chamber, the Grand
Chamber did not consider the IPT.2
This article departs from the First Chamber’s unanimous ndings regarding
the IPT. The Tribunal was found to constitute an eectiveremedy under Article
13 for the purpose of assessing the compatibility of domestic law with the
requirements of the Convention, and its procedures for doing so were found
fully compliant with Article 6. Article 13 arose for consideration because two
of the three applicants had not raised their complaints with the IPT, instead
applying directly to the Court. The government argued that those parties had
not exhausted all available domestic remedies and, therefore, their complaints
were inadmissible under Article 35 § 1 of the Convention. Admissibility turned
on whether or not the Tribunal is capable of providing an eective remedy to
complainants challenging the overarching compatibility of domestic law with
the Convention.The Court found that it is: ‘as a general rule the IPT has shown
itself to be a remedy,available in theory and practice, which is capableof oer ing
2Big Brother Watch and Others vUnited Kingdom [2021] ECHR 439. For de-
tailed commentar ies on the Grand Chamber judgment, see E. Watt, ‘Much Ado
About Mass Surveillance – the ECTHR Grand Chamber ‘Opens the Gates of
an Electronic “Big Brother” in Europe’ in Big Brother Watch v UK’ 28 June
2021 Strasbourg Observers at https://strasbourgobservers.com/2021/06/28/much-ado-
about-mass-surveillance- the-ecthr-grand-chamber- opens-the-gates-of-an- electronic
-big-brother-in- europe-in-big-brother-watch-v- uk/; N. Loideain, ‘Not So Grand: The
Big Brother Watch ECtHR Grand Chamber judgment’ 29 May 2021 Information Law and Policy
Centre at https://infolawcentre.blogs.sas.ac.uk/2021/05/28/not-so- grand-the-big-brother-
watch-ecthr-grand- chamber-judgment/.
© 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited.
(2022) 85(4) MLR 906–937 907
The Evolution of Elucidation
redress to applicants complaining of both specic incidences of surveillance and
the general Convention compliance of surveillance regimes’.3
Nonetheless, the applications were deemed admissible because at the time
of application the parties had relied on Kennedy vUnited Kingdom,4in which
the Court had held that the IPT was not an eective remedy with respect to
general complaints about domestic law. The complaint under Article 6 alleged
that the IPT was biased and procedurally unfair, for reasons discussed in detail
below.That complaint was dismissed as ill-founded for broadly the same reasons
that the IPT was held to be an eective remedy for the purposes of Article 13.5
Crucial to the Court’s endorsement of the IPT was the identication and ap-
proval of what itrefer redto as the ‘elucidator y function’,a process that emerged
when issues arising from the Snowden disclosures came before the IPT.Dur ing
those cases,the Tribunal went into closed session with the government’s lawyers
and a specially appointed Counsel to the Tribunal,excluding the public and the
complainants. After reviewing classied rules and guidance concerning sur veil-
lance programmes, it made details of those rules known to the public with the
consent of the government. The First Chamber found that,
the IPT, as the only tribunal with jurisdiction to obtain and review ‘below the
waterline’ material, is not only the sole body capable of elucidating the general
operation of a surveillance regime; it is also the sole body capable of determin-
ing whether that regime requires further elucidation… the Court considers that
the IPT can – and regularly does – elucidate the general operation of surveillance
regimes, including in cases wheresuch elucidation is considered necessary to ensure
the regime’s Convention compliance.6
This article explores the elucidatory function and the normative weight at-
tached to it. It shows that it arose not by design, but as the outcome of an
iterative series of procedural innovations through which the Tribunal adapted
to unexpected contingencies at the interface between national security and the
public sphere,where the Tribunal faces competing imperatives:a risk-based im-
perative to protect the secrecy of surveillance techniques and a legal imperative
to let the public know the law.As the former Independent Reviewer of Terror-
ism Legislation David Anderson QC put it, public-facing independent review
presents dicult challenges to the law where ‘potential conicts between state
power and civil liberties are acute, suspicion rife and yet information tightly ra-
tioned’.7There are similar institutions facing this challenge, as a recent critical
review of the UK’s accountability mechanisms in respect of national security
shows.8
3 n 1 above at [265];for full analysis see [250]-[265].
4Kennedy vUnited Kingdom [2008] ECHR 1575, [2011] 52 EHRR 4.
5 n 1 above at [510].
6 n 1 above at [255] [257].
7 D. Anderson, ‘A Question of Trust: Report of the Investigatory Powers Review’ Indepen-
dent Reviewer of Terrorism Legislation (2015), [246] at https://terrorismlegislationreviewer.
independent.gov.uk/wp-content/uploads/2015/06/IPR- Report-Print- Version.pdf.
8 L.Woods OBE, L. McNamara and J.Townend,‘Executive Accountability and National Security’
(2021) 84 MLR 3 doi.org/10.1111/1468-2230.12624.
908 © 2021 The Author.The Modern Law Review © 2021 The Modern Law Review Limited.
(2022) 85(4) MLR 906–937
To continue reading
Request your trial