BIROn - Birkbeck Institutional Research Online

    The evolution of elucidation: the Snowden cases before the IPT

    Keenan, Bernard (2022) The evolution of elucidation: the Snowden cases before the IPT. Modern Law Review 85 (4), pp. 906-937. ISSN 1468-2230.

    46674.pdf - Author's Accepted Manuscript

    Download (420kB) | Preview


    In 2018 the European Court of Human Rights found that the UK’s Investigatory Powers Tribunal is an ‘effective remedy’ when it comes to reviewing the compatibility of the UK’s domestic 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 performed during a series of cases that arose in the aftermath of Edward Snowden’s disclosures in 2013. This article analyses and historicizes 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 classified information. The procedure resolves conflicts between secrecy, security, and the publicity required by the law itself.


    Item Type: Article
    Keyword(s) / Subject(s): Big Brother Watch and Others v. the United Kingdom [2018] ECHR 722, Big Brother Watch and Others v United Kingdom [2021] ECHR 439, Liberty v GGHQ [2015] 3 All E.R. 212, [2015] 2 WLUK 215, Belhadj v Security Service, [2015] 4 WLUK 62, surveillance, Article 8 ECHR, Secrecy, Investigatory Powers Tribunal, Elucidation
    School: Birkbeck Faculties and Schools > Faculty of Business and Law > Birkbeck Law School
    Research Centres and Institutes: Law and the Humanities, Centre for
    Depositing User: Bernard Keenan
    Date Deposited: 15 Nov 2021 17:25
    Last Modified: 02 Aug 2023 18:14


    Activity Overview
    6 month trend
    6 month trend

    Additional statistics are available via IRStats2.

    Archive Staff Only (login required)

    Edit/View Item Edit/View Item