Photo: David Goddard/Getty Images.

Amnesty International, Liberty and Privacy International have announced today they are taking the UK Government to the European Court of Human Rights over its indiscriminate mass surveillance practices.

The legal challenge is based on documents made available by the whistle-blower Edward Snowden which revealed mass surveillance practices taking place on an industrial scale.

"The UK government’s surveillance practices have been allowed to continue unabated and on an unprecedented scale, with major consequences for people’s privacy and freedom of expression. No-one is above the law and the European Court of Human Rights now has a chance to make that clear," said Nick Williams, Amnesty International’s Legal Counsel.

The UK government’s surveillance practices have been allowed to continue unabated and on an unprecedented scale, with major consequences for people’s privacy and freedom of expression. No-one is above the law and the European Court of Human Rights now has a chance to make that clear. Nick Williams, Amnesty International’s Legal Counsel.

The organizations filed the joint application to the Strasbourg Court last week after the Investigatory Powers Tribunal (IPT), which has jurisdiction over GCHQ, MI5 and MI6, ruled that the UK legal regime for the UK government’s mass surveillance practices was compliant with human rights.

However, the Tribunal held considerable portions of the proceedings in secret.

“It is ridiculous that the government has been allowed to rely on the existence of secret policies and procedures discussed with the Tribunal behind closed doors – to demonstrate that it is being legally transparent,” said Nick Williams.

Having exhausted every legal avenue in the UK, and amid increasing signs that the government’s legal position is unravelling, the organizations submitted the joint application to the European Court of Human Rights.

“Mass surveillance is a violation of our fundamental rights. Intercepting millions of communications every day, and secretly receiving millions more from the NSA by the back door is neither necessary nor proportionate,” said Carly Nyst, Legal Director of Privacy International.

“While the IPT sided with GCHQ and against the rights of millions of people, Europe’s highest human rights court has a strong history of ensuring intelligence agencies are compliant with human rights law. We hope that the Court continues this tradition and GCHQ is finally held accountable for its unfettered spying on the world’s communications.”

The joint application asserts that UK domestic law, which governs the UK intelligence agencies’ interception of communications and its intelligence sharing practices with the USA, is in breach of the human rights to privacy, freedom of expression and non-discrimination guaranteed under the European Convention on Human Rights.

“The government has consistently said – ‘trust us, we’re acting in the interests of national security’ – but national security and fundamental human rights are not mutually exclusive,” said Nick Williams.

“In fulfilling its duty to protect people, the government must not discard its other human rights obligations and must allow us to hold it up to public scrutiny and accountability.”

A report by the UK Intelligence and Security Committee, the UK parliamentary committee with responsibility for oversight of UK intelligence released on 12 March, echoed Amnesty International’s concerns about the lack of transparency in existing legislation and proposed a fundamental review of the existing legal framework.

However, it also defended GCHQ’s mass surveillance programme as a legitimate intelligence-gathering tool. Amnesty International refutes this on the basis that indiscriminate mass surveillance constitutes a fundamental breach of the human right to privacy and freedom of expression as it is inherently disproportionate.

GCHQ’s mass surveillance programme, TEMPORA, gives the government access to huge amounts of data on millions of people.

“It is thanks only to Edward Snowden’s revelations, and the scant disclosures we and the other claimants have been able to prise from the Government, that we know anything whatsoever about what the intelligence services are up to,” said James Welch, Legal Director for Liberty.

“The Tribunal believes that there are sufficient safeguards to protect us from industrial-scale abuse of our privacy. We disagree, and hope the European Court will finally make clear to our security services that they cannot operate in near complete secrecy.”

“This industrial scale mass surveillance makes it increasingly difficult for organizations like Amnesty International to carry out human rights work. It is critical that we are able to seek and receive information of public interest from our confidential sources, free from government intrusion,” said Nick Williams.

Legal flaws

During 12 months of litigation between the government and the NGOs significant flaws in the UK’s legal regime have been exposed. They include:

Previously secret "arrangements" which allow the UK intelligence service to obtain access to bulk data from foreign intelligence agencies like the US National Security Agency without a warrant whenever it would "not be technically feasible" for the government’s agencies to obtain it themselves.

UK law also allows for the intelligence services to obtain general warrants authorizing indiscriminate mass surveillance, approved by the Secretary of State and renewed on a rolling basis.

The UK government considers it justifiable to engage in mass surveillance of every Google, Facebook, Twitter and YouTube user in the country, even if there is no suspicion that the user is involved in any offence, by secretly redefining the UK’s use of them as "external communications"

The new legal action follows recent developments in the cases brought by Amnesty International and which represent critical setbacks to the UK government’s legal position:

On 6 February, the IPT found that UK intelligence services acted unlawfully in accessing millions of people’s personal communications collected by the US National Security Agency. The decision was the first time ever that the IPT ruled against the UK intelligence and security services.

On 18 February, the UK Government conceded that the regime governing the interception, obtaining and use of legally privileged material violates the Human Rights Act.

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