30
MALONE v. THE UNITED KINGDOM JUGDMENT
address and telephone number; it must be time-limited and can only be
directed to the Post Office, not the police. In addition, the Post Office is
only required and empowered under section 80 to make information
available to "designated persons holding office under the Crown". Any
attempt to broaden or otherwise modify the purposes for which or the
manner in which interceptions may be authorised would require an
amendment to the 1969 Act which could only be achieved by primary
legislation.
74.
In its reasoning, which was adopted by the applicant, the
Commission drew attention to various factors of uncertainty arguing against
the Government’s view as to the effect of the 1969 Act (see paragraphs 136142 of the report).
75. Firstly, the relevant wording of the section, and especially the word
"may", appeared to the Commission to authorise the laying of a requirement
on the Post Office for whatever purposes and in whatever manner it would
previously have been lawfully possible to place a ministerial duty on the
Postmaster General, and not to be confined to what actually did happen in
practice in 1968. Yet at the time of the Birkett report (see, for example,
paragraphs 15, 21, 27, 54-55, 56, 62 and 75), and likewise at the time when
the 1969 Act was passed, no clear legal restrictions existed on the
permissible "purposes" and "manner". Indeed the Birkett report at one stage
(paragraph 62) described the Secretary of State’s discretion as "absolute",
albeit specifying how its exercise was in practice limited.
76.
A further difficulty seen by the Commission is that, on the
Government’s interpretation, not all the details of the existing arrangements
are said to have been incorporated into the law by virtue of section 80 but at
least the principal conditions, procedures or purposes for the issue of
warrants authorising interceptions. Even assuming that the reference to "like
purposes" and "like manner" is limited to previous practice as opposed to
what would have been legally permissible, it was by no means evident to
the Commission what aspects of the previous "purposes" and "manner" have
been given statutory basis, so that they cannot be changed save by primary
legislation, and what aspects remain matters of administrative discretion
susceptible of modification by governmental decision. In this connection,
the Commission noted that the notion of "serious crime", which in practice
serves as a condition governing when a warrant may be issued for the
purpose of the detection of crime, has twice been enlarged since the 1969
Act without recourse to Parliament (see paragraphs 42-43 above).
77. The Commission further pointed out that the Government’s analysis
of the law was not shared by Sir Robert Megarry in his judgment of
February 1979. He apparently accepted the Solicitor General’s contentions
before him that section 80 referred back to previous administrative
arrangements for the issue of warrants (see paragraph 33 above). On the
other hand, he plainly considered that these arrangements remained