At its meeting on 11 December, the Committee of Ministers ended its supervision of the execution of the Big Brother Watch and Others group, which concerns violations of Articles 8 and 10 of the Convention due to shortcomings in the secret surveillance regime including bulk interception and obtaining communications data from communication service providers in the UK prior to 2018.
The European Court found shortcomings in the old legislative regime (Regulation of Investigatory Powers Act 2000). That legislation was replaced by the Investigatory Powers Act (IPA) 2016, together with the Data Retention and Acquisition Regulations 2018. In 2024, the Investigatory Powers Act 2016 (Remedial) Order 2024 further amended certain parts of the IPA to bring it in line with the European Court’s judgment.
The IPA introduced a 'double lock’ which requires warrants for the use of these powers to be authorised by a Secretary of State and approved by a senior judge in the Investigatory Powers Commissioner’s Office prior to being issued. The IPA also requires that applications for a bulk interception warrant must specify all the operational purposes for which any material obtained under that warrant may be selected for examination. Beyond the IPA, operational procedures have been amended which now require that when an analyst intends to target strong selectors referable to an identifiable individual who has not previously been approved, their targeting must be confirmed by an ‘approver’ to verify that the targeting is necessary and proportionate.
In addition, the Investigatory Powers Act 2016 (Remedial) Order 2024 strengthened the existing safeguards for journalists in the IPA. It is now ensured that approval from the Investigatory Powers Commissioner is obtained before any search criteria (included in a bulk interception warrant) are used with the purpose of selecting material for examination that is confidential journalistic material, a source of journalistic material, or where the use of the relevant criteria is highly likely to identify such material or identify or confirm such a source. The retention of confidential journalistic material or sources of journalistic material must also be authorised by the Investigatory Powers Commissioner. The introduction of these enhanced safeguards for journalists and journalistic material under the IPA has ensured that the regime is compliant with Article 10.
The Data Retention and Acquisition Regulations 2018 further strengthened the safeguards for the IPA’s communications data regime by amending the IPA to introduce a serious crime threshold and independent authorisation of relevant communications data requests.
