22. The principle of proportionality does not, however, apply to the pre-2 October 2000
conduct of the respondent agencies. For the reasons already given the principle of
legality is not engaged, as the relevant right did not exist as a fundamental or basic right.
Proportionality review is not available for pre-2 October 2000 conduct, which is
reviewable on Wednesbury grounds only.
23. After 2 October 2000 proportionality can be applied to the issue and construction of
warrants by virtue of the terms of s5 RIPA itself and by reference to Article 8(2)
without the need to consider the common law position.
IV. CONDUCT PRE-2 OCTOBER 2000.
24. The determination of the Tribunal on this point is that, subject to the question of noncompliance with time limits discussed below, the Tribunal has jurisdiction to
investigate a complaint in respect of interception of communications before 2 October
2000, if it was a complaint that could have been made under the 1985 Act to the
Interception of Communications Tribunal, to which jurisdiction the Tribunal succeeded
under RIPA, but it has no jurisdiction to adjudicate on a claim under the HRA (s7(l)(a)
in respect of such conduct.
25. It is common ground that in the case of conduct on or after 2 October 2000 the
Complainant can rely on the Convention right if the conduct amounts to an interference
with the right, which is not a proportionate means of serving a legitimate aim. The issue is
whether the Tribunal has jurisdiction to determine complaints and claims relating to
conduct occurring before RIP A came into force (2 October 2000). A distinction should