(b) whether the safeguards contained in the Bill are sufficient to render them
proportionate for the purposes of the European Convention on Human Rights
[ECHR] or European Union [EU] law.
These limitations were confirmed by the Security Minister’s answer of 6 July
2016 to a parliamentary written question.12
1.12.
On the other hand, my brief is wide enough to allow me to consider not only
whether there is an operational case for the powers, but, in relation to each
power, the strength or otherwise of any such operational case.
1.13.
In assessing the operational case as mandated by my terms of reference, I have
also sought to have regard to what alternative means might have been used to
achieve the operational results that are claimed for the powers under review.
This consideration of the necessity of the powers under review accords with the
exchange of letters between Government and Opposition that preceded the
establishment of the Review (Annex 3), and with the debate at Report stage in
the House of Commons.13
1.14.
12
13
14
15
The terms of reference refer to a document entitled “Operational Case for Bulk
Powers” [the Operational Case]. The Operational Case was published as a 47page open document alongside the Bill on 1 March 2016, and additional
classified material was made available to the ISC.14 Along with each member of
the Review team, I have studied and interrogated both the Operational Case and
the additional material provided to the ISC. As will be seen, the SIAs did not limit
themselves to the examples in that document when selecting case studies for us
to examine.15
Asked by Roger Godsiff MP whether the Home Secretary would “establish a further review of,
or extend the remit of the current review to include, the proportionality of the powers currently
included in the Investigatory Powers Bill”, the Security Minister replied: “The current review
being conducted by David Anderson QC is specifically examining the operational case for the
bulk powers in Parts 6 and 7 of the Investigatory Powers Bill. The review will not include a
consideration of the safeguards that apply to these powers, and associated questions of
proportionality, as that is rightly a matter for Parliament to consider as part of its scrutiny of the
Bill.”
In the words of Keir Starmer QC MP, speaking for Labour, “the review team’s ability to assess
whether the same result could have been achieved through alternative investigative methods is
important to that exercise and the confidence that we can have in the outcome”: Hansard HC 7
July 2016, vol 611 col 1069. This appears to be what the Security Minister, John Hayes MP,
had in mind when he said immediately beforehand: “That is why the focus on necessity and not
merely utility is so important.”
The Operational Case is available, along with other “over-arching documents” relating to the Bill
and published on 1 March, from https://www.gov.uk/government/publications/investigatorypowers-bill-overarching-documents. Operational cases for the retention of internet records and
for the use of communications data by public authorities were also published by the
Government, in November 2015 and July 2016 respectively.
Contrast the Operational Case with Annexes 8-11.
5