(b) the use of data retained by CSPs pursuant to the power in Part 4 of the Bill is
an adequate alternative to the data acquisition power.
But the wider the lens, the more imponderables come into the exercise, and the
more difficult the assessment.
4.18.
For example, it is perfectly legitimate to ask whether the money put into bulk
collection and analysis might be more productively spent on different priorities
such as hardening domestic targets, or recruiting additional armed or cybertrained police. But these are decisions of a political and budgetary nature, the
answers to which depend upon the cost and efficacy of those alternatives
(matters on which I have no evidence), and upon value judgements that are
beyond the scope of a report such as this.
4.19.
There are, in any event, severe difficulties in comparing such different policies by
seeking to attach a financial value to estimates of lives saved, assets seized,
children safeguarded, paedophile rings disrupted and so on. Precisely such an
approach, in a Home Office impact assessment, was strongly rejected by the
parliamentary Joint Committee that considered the draft Communications Data
Bill of 2012.187 The difficulties are especially pronounced in relation to the
prevention of terrorism, a type of crime whose worst effects are measured not in
production lost or even in lives taken, but in the fear and divided societies which
it aims to provoke.
4.20.
Accordingly, though I have considered alternative means of achieving specific
outcomes to which bulk powers made a significant contribution, I have sought to
conduct neither a formal cost-benefit analysis nor a comparison between
alternatives that are not readily comparable. That is in accordance with my
remit, which asked me to assess whether the same results could have been
achieved “through alternative investigative methods”.188
Burden of proof
187
188
4.21.
The purpose of the Review is neither to advise on the law, nor to replicate or preempt any analysis of utility that a court or tribunal may in the future be called
upon to perform. Nonetheless, a legal analogy may be helpful in determining the
correct approach to the Review’s central task.
4.22.
The exercise of each of the powers under review is liable to interfere with the
right to privacy guaranteed by the Human Rights Act 1998 (which gives effect to
Joint Committee on the Draft Communications Data Bill (HC Paper 79, HC 479, November
2012, paras 264-270.
Annex 3, letter from the Security Minister, para 3.
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