CHAPTER 12: CIVIL SOCIETY
possibly the requirements of Article 8).5 Moreover, the lack of clear statutory authority
for such powers insulates them from public-facing oversight.
12.10. These issues arise in particularly acute form in relation to bulk collection, for which
the power is (in the views of many) far from apparent on the face of RIPA. Though
bulk collection, it is claimed, dwarfs the regimes for targeted interception and
acquisition of communications data, its use was largely unknown until recent
revelations. This lack of clarity engages questions of whether or not such collection
is “in accordance with the law”: the IPT held that it is (in the Liberty IPT Case, judgment
of 5 December 2014). Along with the claimants in Big Brother Watch and others v
UK,6 the claimants in the Liberty ECtHR Application have raised the point before the
ECtHR.
12.11. In the light of this, I spoke to many activists who emphasised that if broad powers such
as bulk collection are to be authorised (a question which is considered below), these
must be set out in legislation after proper and public debate. As stated by Liberty,
while it is not expected that all the detail of investigatory methods will be published, “a
clear understanding of the absolute limits of what is permitted by legislation is
essential when the exercise of powers will be done largely in secret”. Thus many
suggestions have urged the publication of further guidance, worked-through practical
examples, or legal advice interpreting the law or authorising the powers involved.
This, it is suggested, is likely to engender greater trust in the actions of the authorities,
which would be operating on powers explicitly set out in legislation and whose actions
could thereby be reviewed.
The need for evidence
12.12. Linked to this issue is a central concern of many civil society groups: that they have
minimal, if any, evidence of the need for (rather than desirability of) the powers
exercised by public authorities. They are of the view that, following the approach of
the ECtHR set out in Chapter 5 above, interferences with rights may not be justified
unless a justification is provided for that surveillance which is proportionate to the
intrusion involved.
Moreover, it is important democratically to have public
understanding of the need for surveillance, as highlighted by DEMOS. Rights Watch
(UK) made the point that “[t]his is particularly important among communities who are
considered suspect due to the involvement of some of their members with terrorist
activity”.
12.13. Many challenge the premise of the need for further powers, or even all existing
powers. In particular, they note that:
5
6
In relation to CNE, the legality of the use of these powers is currently under challenge in the PI IPT Case.
Application no. 58170/13.
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