Judgment Approved by the court for handing down.
Privacy International v Investigatory Powers Tribunal
48.
We have for these reasons concluded that the principle of legality expounded in Simms
extends to the issuing of general warrants whether in relation to physical liberty or in
relation to interference with property. The aversion to general warrants is one of the
basic principles on which the law of the United Kingdom is founded. As such, it may
not be overridden by statute unless the wording of the statute makes clear that
Parliament intended to do so (AXA General Insurance Ltd v HM Advocate [2011]
UKSC 46, [2012] 1 AC 868, para 152, per Lord Reed, citing Lord Browne-Wilkinson
in R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539,
575). Unambiguous words are required (Ahmed v Her Majesty’s Treasury [2010] 2
AC 534, para 204).
49.
The proper protection of the citizen against terrorist attack is of the greatest importance,
and there can be little doubt that technological capabilities operated by the Agencies lie
at the very heart of the efforts of the State to safeguard the citizen against terrorist
attack. But we do not accept the suggestion in Sir James’ argument that for this reason
powers conferred on the Secretary of State in statute, such as the power in section 5(2)
of the 1994 Act, must be given the widest possible construction. This may not be what
Lord Atkin described as an argument “which might have acceptably been addressed to
the Court of King’s Bench in the time of Charles I”, but it is entirely contrary to the
authorities we have cited in the last paragraph.
50.
Sir James repeatedly emphasised that the “control” on over-broad use of section 5
warrants is the requirement for the Secretary of State to be satisfied of the necessity and
proportionality of the authorisation sought. We note, however, that there was no such
requirement in the 1994 Act until the amendments made by RIPA to ensure compliance
with the Human Rights Act. The only requirement was for the Secretary of State to
“think it necessary for the action to be taken on the ground that it is likely to be of
substantial value” in assisting the relevant Agency in carrying out any of its functions
and to be satisfied that what the action sought to achieve could not “reasonably be
achieved by other means”. In any event the value judgment about necessity and
proportionality entrusted to the Secretary of State does not in our view assist in
consideration of why Parliament used the word “specified” in relation to the contents
of the warrant.
51.
A recent and striking example of the courts’ approach to powers of search in the context
of the fight against terrorism is Secretary of State for the Home Department v GG
[2009] EWCA Civ 786, [2010] QB 585. The question was whether a person subject to
a control order under the Prevention of Terrorism Act 2005 could be required to submit
to a personal search. Section 1(3) of the Act provided that:
“The obligations that may be imposed by a control order made
against an individual are any obligations that the Secretary of
State or (as the case may be) the court considers necessary for
purposes connected with preventing or restricting involvement
by that individual in terrorism-related activity.”
Section 1(4), beginning with the words “these obligations may include, in particular”
[emphasis added], went on to set out in 16 subparagraphs what obligations might be
imposed, such as: