14
MALONE v. THE UNITED KINGDOM JUGDMENT
democratic society depends on its being subject to ministerial control, and on the
readiness of the public and their representatives in Parliament to repose their trust in
the Ministers concerned to exercise that control responsibly and with a right sense of
balance between the value of interception as a means of protecting order and security
and the threat which it may present to the liberty of the subject.
Within the necessary limits of secrecy, I and my right hon. Friends who are
concerned are responsible to Parliament for our stewardship in this sphere. There
would be no more sense in making such secret matters justiciable than there would be
in my being obliged to reveal them in the House. If the power to intercept were to be
regulated by statute, then the courts would have power to inquire into the matter and to
do so, if not publicly, then at least in the presence of the complainant. This must surely
limit the use of interception as a tool of investigation. The Government have come to
the clear conclusion that the procedures, conditions and safeguards described in the
[White] Paper ensure strict control of interception by Ministers, are a good and
sufficient protection for the liberty of the subject, and would not be made significantly
more effective for that purpose by being embodied in legislation. The Government
have accordingly decided not to introduce legislation on these matters" (Hansard,
House of Commons, 1 April 1980, cols. 205-207).
He gave an assurance that "Parliament will be informed of any changes
that are made in the arrangements" (ibid., col. 208).
38.
In the course of the Parliamentary proceedings leading to the
enactment of the British Telecommunications Act 1981, attempts were
made to include in the Bill provisions which would have made it an offence
to intercept mail or matters sent by public telecommunication systems
except pursuant to a warrant issued under conditions which corresponded
substantially to those described in the White Paper. The Government
successfully opposed these moves, primarily on the grounds that secrecy,
which was essential if interception was to be effective, could not be
maintained if the arrangements for interception were laid down by
legislation and thus became justiciable in the courts. The present
arrangements and safeguards were adequate and the proposed new
provisions were, in the Government’s view, unworkable and unnecessary
(see, for example, the statement of the Home Secretary in the House of
Commons on 1 April 1981, Hansard, cols. 334-338). The 1981 Act
eventually contained a re-enactment of section 80 of the Post Office Act
1969 applicable to the Telecommunications Corporation (Schedule 3, para.
1, of the 1981 Act). Section 80 of the 1969 Act itself continues to apply to
the Post Office.
39. In its report presented to Parliament in January 1981 (Command
Paper 8092), the Royal Commission on Criminal Procedure, which had
been appointed in 1978, also considered the possible need for legislation in
this field. In the chapter entitled "Investigative powers and the rights of the
citizen", the Royal Commission made the following recommendation in
regard to what it termed "surreptitious surveillance" (paras. 3.56-3.60):
"... [A]lthough we have no evidence that the existing controls are inadequate to
prevent abuse, we think that there are strong arguments for introducing a system of