consideration, for the safeguarding the democratic institutions”. Second, it
must be “strictly necessary, as a particular consideration, for the obtaining
of vital intelligence in an individual operation.” The Court explained that
“any measure of secret surveillance which does not correspond to these
criteria will be prone to abuse by the authorities with formidable
technologies at their disposal.” (§73).
202.
In considering whether the test of strict necessity is satisfied, the
existence of safeguards is a necessary, but not sufficient, condition.
203.
As the Advocate General explained in Watson & Others:
“[T]he mandatory safeguards described by the Court in
paragraphs 60 to 68 of Digital Rights Ireland are no more than
minimum safeguards … a national regime which includes all of
those safeguards may nevertheless be considered disproportionate,
within a democratic society, as a result of a lack of proportion
between the serious risks engendered by such an obligation, in a
democratic society, and the advantages it offers in the fight against
serious crime.” (para 262).
204.
The utility of a particular surveillance measure is likewise a relevant, but
not conclusive, consideration. As the Independent Reviewer observed in
his 2015 report, even if bulk interception makes a “valuable” contribution
to protecting national security, “[i]t does not of course follow that it is
necessarily proportionate”.123 Indeed, the Independent Reviewer in his
2016 report on bulk powers explicitly noted that he was not “asked to
opine on…whether the safeguards contained in the [Investigatory Powers]
Bill are sufficient to render them proportionate for the purposes of the
European Convention on Human Rights”.124
123
124
A Question of Trust, para 7.26
Report of the Bulk Powers Review, para 1.11(b). Reply Annex No. 32.
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