(a) if the operator is not already in possession of the data, to obtain the
data; and
(b) in any case to disclose all of the data in his possession or
subsequently obtained by him.
(5) The designated person shall not … give a notice under subsection
(4) unless he believes that obtaining the data in question by the …
notice is proportionate to what is sought to be achieved by so
obtaining the data.
(6) It shall be the duty of the postal or telecommunications operator to
comply with the requirements of any notice given to him under
subsection (4).
(7) A person who is under a duty by virtue of subsection (6) shall not
be required to do anything in pursuance of that duty which it is not
reasonably practicable for him to do.”
Subsection (8) provides that the duty imposed upon the telecommunications
operator is enforceable by civil proceedings.
47
S.23 (2) sets out detailed provisions for the giving of a notice under s.22 (4)
and sets a limit of one month on its duration, subject to renewal.
48
Ss.71 and 72 provide for the issuing of codes of practice relating to the
exercise of powers under Part I, Chapter II, and as to their effect.
49
Mr. de la Mare relied in general terms upon the ‘principle of legality’ whereby
“fundamental rights cannot be overridden by general or ambiguous words”
(per Lord Hoffman in R v Home Secretary ex p Simms [2000] 2 AC 115 at
131F). Mr. Eadie pointed out that, in this case, the ECHR rights are qualified
not absolute, and that the principle of legality does not apply in every case in
which legislation may interfere with ECHR rights (as opposed to overriding
them). The ‘principle of legality’ will thus in any event, in that regard, as Lord
Hoffman points out in RB (Algeria) v Secretary of State [2010] 2 AC 110 at
181, have been “largely superseded in its application to human rights by s.3 of
the 1998 Act”.
50
However, the foundation for Mr. de la Mare’s submission is the statement by
Lord Bingham CJ in R v Liverpool County Council ex parte Baby Products
Association, 23 November 1999, reported in (2000) LGR 171 at 178(e)-(f) “A
power conferred in very general terms plainly cannot be relied on to defeat the
intention of clear and particular statutory provisions”, as approved in R (W) v
Secretary of State for Health [2016] 1 WLR 698 CA.
51
A little needs to be said about the facts of the case and the legal context of the
arguments considered in it. Liverpool County Council was the weights and
measures authority for their area. It published a statement to the effect that
samples of ten models of baby walkers had been tested and found not to
comply with the British Safety Specification. The association, to which
distributors of the baby walkers belonged, claimed that the press statement
was unlawful. Under the General Product Safety Regulations 1994, made
under Council Directive 92/59/EEC and under powers granted to them under
20