or unlawful interception. This position was described by the Independent
Reviewer in his report as “hard to understand” and he recommended the
introduction of a system of notification.121
200.
The IOCC has been strongly critical of these unnecessary limitations on
his oversight. He has repeatedly asked for (but does not have) power to
refer errors to the IPT so that victims of errors can obtain a remedy, and
for power to disclose errors to victims. Without such powers, the oversight
provided by the Commissioner is more theoretical than real. The
Commissioner has publicly complained about the following: ”122
4 Relaxation on secrecy provisions to aid transparency. We
are constrained by the current statutory provisions in section 19 of
RIPA forbidding disclosure, as are the public authorities and the
CSPs. The culture of secrecy must continue to be challenged and
transparency should be encouraged where it leads to greater
accountability without prejudicing national security or the ongoing
prevention or detection of crime.
5 Full provision for reporting errors / breaches and power to
refer matters to the IPT. It is crucial to ensure that the error
reporting provisions are clear and comprehensible and that
individuals adversely affected are able to seek effective remedy. On
the latter point a number of areas would benefit from review here
including; the threshold of “wilful or reckless” and whether the
Commissioner should be able to refer matters directly to the IPT.
F.
The bulk interception regime is unnecessary and disproportionate
1.
The test: “strict necessity”
201.
In Szabó the Court held that in the context of covert interception of
electronic communications the requirement of necessity under Article 8(2)
imposes a test of strict necessity “in two aspects.” First, a secret
surveillance
121
122
measure
must
be
“strictly
necessary,
as
A Question of Trust, para 14.104.
IOCCO, Update on Investigatory Powers Bill, August 2016. Reply Annex No. 33.
79
a
general