18
KENNEDY v. THE UNITED KINGDOM JUDGMENT
70. In his 2005-2006 report, the Commissioner explained his role as
follows:
“7. ... essentially I see the role of Commissioner as encompassing these primary
headings:
(a) To protect people in the United Kingdom from any unlawful intrusion of their
privacy. This is provided for by Article 8 of the European Convention on Human
Rights. I must be diligent to ensure that this does not happen, and alert to ensure that
there are systems in place so that this does not and cannot happen. Over the long
period that I have held my present post, I have found no evidence whatsoever of any
desire within the Intelligence or the Law Enforcement Agencies in this field to act
wrongfully or unlawfully. On the contrary, I have found a palpable desire on the part
of all these Agencies to ensure that they do act completely within the four walls of the
law. To this end, they welcome the oversight of the Commissioner and over the years
have frequently sought my advice on issues that have arisen, and they have invariably
accepted it. In any event, I believe that the legislation together with the safeguards and
Codes of Practice that are in place make it technically virtually impossible to
deliberately intercept a citizen's communications unlawfully with intent to avoid legal
requirements.
(b) To assist the Agencies to do the work entrusted to them and, bearing in mind the
number of organisations that I am now required to oversee, this occurs quite
frequently. My work is, of course, limited to the legal as opposed to the operational
aspects of their work. They take great care with their work and I have been impressed
by its quality.
(c) To ensure that proper safeguards and Codes of Practice are in place to protect the
public and the Agencies themselves. These have to be approved by the Secretaries of
State. But every Secretary of State with whom I have worked has required to be
informed as to whether the Commissioner has approved them before he or she is
willing to do so.
(d) To advise Ministers, and Government Departments, in relation to issues arising
on the interception of communications, the acquisition and disclosure of
communications data, to approve the safeguards documents and the Codes of
Practice.”
71. The Commissioner said of the Secretaries of State whom he had met
in the previous year:
“14. It is clear to me that each of them gives a substantial amount of time and takes
considerable care to satisfy himself or herself that warrants are necessary for the
authorised purposes, and that what is proposed is proportionate. If the Secretary of
State wishes to have further information in order to be satisfied that he or she should
grant the warrant then it is requested and given. Outright and final refusal of an
application is comparatively rare, because the requesting agencies and the senior
officials in the Secretary of State's Department scrutinise the applications with care
before they are submitted for approval. However, the Secretary of State may refuse to
grant the warrant if he or she considers, for example, that the strict requirements of
necessity or proportionality are not met, and the agencies are well aware that the
Secretary of State does not act as a 'rubber stamp'.”