9.7.
None of those factors is a reason in itself for renouncing the use of bulk
powers.248 They do however mean that the use of bulk powers should only be
countenanced if there is a compelling operational case for their use, and if
their use is subject to adequate and visible safeguards.
The function of this Report
9.8.
It is not the function of this Report to pronounce on the overall case for bulk
powers. The Government has been clear that “consideration of the safeguards
that apply to [the bulk] powers, and associated questions of proportionality”
should not form part of this Review, on the basis that these are “rightly a matter
for Parliament to consider as part of its scrutiny of the Bill.”249
9.9.
The task of the Review team has been more straightforward but also more
technical: to “examine the operational case for the investigatory powers
contained in Parts 6 and 7 of the Investigatory Powers Bill”, and as part of that
exercise to “assess whether the same result could have been achieved through
alternative investigative methods”.250 The fact that an intrusive power can be
successfully used to avert threats and reduce crime does not of course mean
that it should automatically be passed into law: that way lies a police state. But
as my terms of reference imply, a strong operational case is the essential
starting point, without which the political debate is not worth having.
9.10.
This is not virgin territory: as narrated in chapter 3 above, a variety of other
security-cleared persons have looked carefully at related questions. It would be
wrong to dismiss them as mere creatures of the establishment: among the
strongest defenders of the utility of the powers have been successive
Commissioners who bring to their task the dispassionate and forensic qualities of
a senior judge, the additional independence that accompanies retirement and, in
the case of IOCC, a substantial team of skilled inspectors. Like the better-known
work of the PCLOB in the US, their reports (and future reports of the IPC, which
will have access to further sources of expertise) deserve to be a primary point of
reference for international rapporteurs and tribunals which themselves lack the
same access to classified materials.
9.11.
248
249
250
I have discussed my provisional conclusions with other members of the Review
team, and sought to stress-test them by reference to the widest possible variety
of sources (chapter 4 above). To a large extent, they conform to the views
That would certainly appear to be the position of the ECtHR (3.78-3.80), though the CJEU may
be signalling a more absolutist position, at least where “access on a generalised basis to the
content of electronic communications” is concerned: 2.28 above.
See 1.11 above. Parliament is well equipped to decide these issues, bearing in mind the seven
reports that its own committees have already produced, as well as the three that preceded the
introduction of the draft Bill: 1.16 and 1.22 above.
See 1.10 and 1.13, above.
121